Article 6 applies to challenge to conditions imposed on suspected Al-Qaeda affiliate – an extended look
19 May 2020
In a complicated but very important decision, the High Court has ruled as a preliminary issue that the procedural protections under Article 6 which require a person to be given sufficient information about the allegations against them so they can give effective instructions to their lawyers will apply to a challenge to conditions imposed by order on a man suspected to have affiliations to Al-Qaeda.
This ‘extended look’ will explain the background to the issues in play and the way that a powerful ‘cocktail’ of rights under Articles 6 and 8 ECHR operates to try to ensure that a balance is struck between the rights of the individual and the collective interest in security.
Temporary Exclusion Orders
The claimant, QX, is a British national. He is married with three children who are all of toddler age. In October 2018, he and his wife were arrested in Istanbul.
On 26 November 2018 the Secretary of State successfully applied to the court for permission to impose a Temporary Exclusion Order (TEO) on QX for two years on grounds of national security. This was granted by the court and on 9 January 2019 QX was returned from Istanbul to the UK under the terms of the TEO.
A TEO is an order which may be imposed under the Counter-Terrorism and Security Act 2015 (“the 2015 Act”) in order to temporarily disrupt the return and activities of a citizen suspected of being involved in terrorist-related activity abroad to manage the risk that they may pose to the public. It is an offence triable in either the Magistrates’ or the Crown Court with a maximum sentence of 5 years if a person does not comply with TEO conditions without reasonable excuse.
TEOs are part of a family of civil orders including Terrorist Prevention and Investigation Measures (TPIMs) which now exist to address the potential threat posed by a person considered by the security services to be involved in terrorist-related activity. These may be used where the evidence is not necessarily there to bring successful criminal charges, particularly where the concerns are based on secret intelligence which would be very difficult to rely on in court.
Such orders represent stringent control on the rights of the individual in order to protect the security of wider society. But in circumstances where the terror threat to the UK as of 4 November 2019 has been graded at substantial by MI5 (and prior to this date had been set one grade up at severe for the previous two years), the use of such civil orders may also be said to be a less draconian alternative to deprivation of citizenship and permanent exclusion from the UK (discussed in relation to the prominent case of Shamima Begum on this blog here, with Free Movement providing a very useful general overview of those powers here).
The use of a TEO is subject to strict controls. In the context of post-return obligations on a person, the Secretary of State must comply with section 9 of the 2015 Act. She must “reasonably suspect” the person to have been involved in terrorist-related activity and “reasonably consider” it to be “necessary” for the protection of members of the public for a TEO to be imposed. Moreover, the court’s permission must be granted, except for in urgent cases. When considering an application for permission, the court must determine whether the Secretary of State’s decision is “obviously flawed” under judicial review principles.
The TEO in this case
The basis for the request for a TEO in this case was an assessment by the Secretary of State which concluded that QX had travelled to Syria and was aligned with a group that is aligned to Al-Qaeda, thereby demonstrating a “high level of commitment to the ideology and aims” of the organisation. His return was considered to give rise to a number of risks to the public, “including violent attacks, recruitment of UK-based associates, and providing support to AQ operatives” (paras 16-17).
Two of the obligations imposed required QX to (a) report each day to a named police station and (b) to attend weekly mentoring under the Home Office Desistance and Disengagement Programme (DDP).
QX was discontented with these two obligations. As to the weekly mentoring, it was evident that for a “substantial period” he had not engaged with these sessions (para 9), instead spending the time first playing chess (with minimal conversation) and then reading a book that he would bring with him. He applied to the court under section 11(2)(d) of the 2015 Act for a review of the two relevant obligations.
At this preliminary hearing, the most important issues related to whether Article 6(1) of the ECHR applied to a review of a TEO under section 11(2)(d), and if so, what level of disclosure was necessary to ensure that there was a fair and public substantive hearing.
It is important to note that in a review of a TEO under the 2015 Act, the evidence relied on by the Secretary of State may include highly sensitive security intelligence which it would be dangerous to disclose to a person potentially involved in terrorist-related activity.
This gives rise to a very difficult public policy problem. Ordinary principles of fairness and justice require a person to be provided with the evidence which is being used against them in court. But this may well put the safety of the public in jeopardy. Two vital principles therefore come into direct conflict.
The solution that Parliament has reached to try to balance these considerations is the use of the Special Advocate. Where the Secretary of State applies to rely on closed material, this material is withheld from the individual and their interests in relation to this material are represented by a Special Advocate. The Special Advocate is therefore placed under a very complex set of obligations to represent the individual (including in relation to whether the material should properly remain closed) without divulging the closed material to them. In this case, the lead Special Advocate for QX was Shaheen Rahman QC of 1 Crown Office Row.
The procedural protections
The right to a fair trial under Article 6 has both a civil and a criminal aspect. As to the civil aspect, Article 6(1) lays down the principle of open justice as follows:
In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Whilst the concept of “civil rights and obligations” means that certain matters of public law, such as the obligation to pay tax, are not captured by this provision, the Strasbourg Court has also noted that there has been a shift in its case law towards applying the provision to cases more widely. The most important question is whether “the outcome was decisive for private rights and obligations” (Ferrazzini v Italy (2002) 34 EHRR 45, paras 24-29; De Tommaso v Italy (2017) 65 EHRR 19, para 151; Ringeisen v Austria (No 1) (1979-1980) 1 EHRR, para 94).
In Secretary of State for the Home Department v AF (No 3)  2 AC 269, the Secretary of State maintained the position adopted in earlier cases that in the context of control orders (the forerunner to TPIMs) proceedings challenging such an order fell within the civil aspect of Article 6(1) because they were at least in some respects decisive for civil rights.
This nine-judge decision, one of the last given by the House of Lords, is now the leading authority on whether the procedure that results in the making of a control order and the Secretary of State’s reliance on closed material in challenge to the terms of that order satisfies the right to a fair hearing guaranteed by Article 6(1). For such a case, Lord Phillips encapsulated the test for procedural fairness to be applied:
… 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 open material consists of purely general assertions and 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 may be. (AF (No. 3), para 59)
It is also now established that where the restrictions interfere with private and/or family life under Article 8, this will constitute a breach of a civil right in the form of a statutory tort. As the Secretary of State is obliged not to act in a way inconsistent with Article 8 under s. 6 of the Human Rights Act 1998, a case challenging such an interference will involve a determination on an interference with civil rights for the purposes of Article 6(1) (Secretary of State for the Home Department v BC and BB  1 WLR 1542, cited in QX at para 44).
Where Article 6(1) is held to be engaged, the requisite degree of disclosure required for a fair hearing will still “depend on context and all the circumstances of the case” (Kiani v Secretary of State for the Home Department  QB 595, para 23). Yet in this regard it is notable that even a set of relatively less restrictive conditions, e.g. to reside at an address, to undertake regular reporting, to surrender a passport and not to associate with a named person, has been held sufficient to amount in law to detention (BC and BB). This approach appears broadly to match that of the Supreme Court in relation to unlawful detention in another recent context, discussed on this blog here.
The parties’ positions
On the basis of this legal background, QX’s position (though not put in these terms) was that a powerful ‘cocktail’ of rights was involved.
The post-entry obligations of reporting and undergoing mentoring gave rise to a significant interference in his private life under Article 8 (‘the spirit’). The present proceedings challenging those obligations would determine his civil rights and obligations as it would determine the lawfulness of this interference in Article 8. Therefore, Article 6 (‘the mixer’) was engaged. This ‘cocktail’ was sufficiently strong that the protections of procedural fairness under AF (No. 3) were required.
However, the Secretary of State contended that neither ‘spirit’ nor ‘mixer’ were present. In particular, it was argued that:
- The obligations under challenge concerned conditions on which a person was entitled to take up their right of abode in the UK, which were public law matters falling within the category of the “hard core of public authority prerogatives” such that Article 6 could not be engaged.
- The review proceedings were in any event not determinative of QX’s Article 8 rights in the sense required by the case law.
- In the alternative, even if Article 6 did apply, it did not follow that the disclosure principle in AF (No 3) applied in the circumstances of this case, as the facts did not give rise to conditions of actual or virtual imprisonment.
Whether Article 6(1) applied
As to whether Article 6(1) applied, Mrs Justice Farbey began by noting that a decision concerning the right of under the Immigration Act 1971 would involve a matter of immigration control as a “matter of state prerogative … [which therefore] does not attract the procedural guarantees of article 6” (para 56).
However, this case was concerned not with conditions of entry under the that Act (e.g. entry on condition of restriction on the right to work or study), but rather with post-return obligations imposed on a British citizen who – as it was pointed out – did not require leave to enter under its provisions (paras 58-60).
An examination of the nature of the post-return obligations that were imposed made clear that these did not concern immigration control. The Judge stated that
I discern no material connection between attending appointments with a theologian and immigration control. The variation of obligations – from four hours of mentoring per week to two hours of mentoring and two hours with the theologian – cannot conceivably affect immigration control. (para 65)
Therefore, these post-return obligations did not involve conditions upon which British citizens are entitled to take up their right of abode and did not fall within the hard core of public-authority prerogatives. Article 6(1) could apply in principle (paras 65-68).
Whether the proceedings involved the determination of civil rights and obligations
The Secretary of State submitted that there would not be a determination of “civil rights and obligations” as there had been no challenge to the imposition of the TEO itself or the Secretary of State’s assessment of the risk posed by QX. Only to the post-entry obligations imposed under the TEO were in issue.
However, the Judge held that these distinctions were “legally irrelevant”. What mattered was whether the nature and extent of the obligations imposed in the overall context engaged QX’s civil rights and obligations (para 70). The Judge held that
the combination of obligations in this particular case amounts to an interference with QX’s right to respect for private life under article 8. The frequency of the reporting requirement (daily) coupled with a requirement to attend appointments for four hours each week has the effect of circumscribing QX’s movements. The section 9 obligations prevent him from living as freely as the general population, and require him to adhere to significant interventions by the state on pain of committing a criminal offence if he fails to do so. QX has in fact been charged in relation to three breaches of his TEO; my understanding is that criminal proceedings are ongoing. The interference with QX’s article 8 rights is not incidental but “direct and material” (Le Compte v Belgium, above, para 49). (para 73)
Although QX’s rights were also circumscribed by the TEO itself and a third residence obligation that was not challenged, the Judge held that the obligations under challenge were sufficiently onerous in themselves to interfere with his private life (para 74). It was therefore clear that the proceedings did involve the determination of civil rights vis a vis Article 8 for the purposes of Article 6(1) (paras 76-78). The ‘cocktail’ of rights under Articles 8 and 6 had been mixed.
However, the Judge expressly declined to rule on “the broader question of whether section 9 obligations will always engage a person’s private life”, stating that in the context of section 9 obligations under the 2015 Act, it was “possible to conceive that (for example) reporting to a police station close to home once or twice a week would not engage article 8 at all because there could be no interference with an article 8 right” (para 75).
The extent of disclosure requirements
On considering all relevant facts and circumstances, the Judge noted that the obligations were “onerous”, “have the effect of restricting QX’s freedom of movement within the United Kingdom” and “constitute executive action against QX which is intended to disrupt his activities”. As such, they were comparable with the sort described in Tariq v Home Office  UKSC 35 as “virtual imprisonment”. The procedural protections laid down in AF (No. 3) therefore applied (para 83).
The Judge applied the relevant test and held that the case against QX in relation to the Secretary of State’s open assessment that as a person who travelled to Syria and aligned himself with Al-Qaeda he was a threat to national security could be answered by QX with the assistance of the Special Advocates.
In particular, he was able to give instructions to his solicitors and to the special advocates about (i) whether he has ever travelled to Syria; and (ii) the purpose of his travel that would be sufficient “not merely to deny but to refute” these allegations (Bank Mellat v HM Treasury, above, para 34). Therefore, his counsel with the assistance of the Special Advocates would be able to address the court on whether the section 9 obligations under challenge were necessary and proportionate to impose on a person in his position. To this extent, the proceedings would comply with article 6(1) (para 85).
But the Judge went on to hold that
However, the closed material contains some further, more specific information which may have an impact on whether the nature and extent of the present obligations is necessary and proportionate. Should the Secretary of State continue to rely on that information, QX’s article 6 rights could, as things stand, be breached. (para 86)
With further reasons being provided in her closed judgment, the Judge held that at present it would be premature to rule definitively on whether Article 6(1) has been breached. This was better considered closer to or at the substantive hearing when the Secretary of State’s finalised position was known (para 86).
The detail of the law here can seem complicated and somewhat technical. But the issues involved – the balance between the rights of the individual to a fair hearing and the collective interest in security – are of great importance, particularly in the modern context of the ongoing threat of terrorism and the reliance by the security services on covert intelligence to protect the public.
This preliminary decision provides detailed guidance on the circumstances in which Article 6 will apply to a challenge to an order imposed on a person believed to be a threat to national security. It clarifies and reaffirms that Article 8 will apply where such conditions are onerous enough to amount to virtual imprisonment. The decision does not, however, establish that all conditions imposed on such a person will always engage Article 8.
The case remains ongoing.
Jonathan Metzer is a barrister at 1 Crown Office Row and the commissioning editor of the UK Human Rights Blog.
Shaheen Rahman QC is lead Special Advocate for QX in this case. She was not involved in the writing of this post.