Factual and Procedural Background
This opinion concerns an appeal by the Secretary of State against a declaration of incompatibility made by Sullivan J on 17 May 2006. The declaration held that the court supervision procedures under section 3 of the Prevention of Terrorism Act 2005 (PTA) relating to non-derogating control orders were incompatible with the Respondent's rights to a fair hearing under Article 6(1) of the European Convention on Human Rights (the Convention). The Secretary of State challenges this declaration.
The PTA empowers the Secretary of State to impose control orders on terrorist suspects. On 5 September 2005, a non-derogating control order was made against the Respondent. It was common ground that this order interfered with the Respondent's civil rights, engaging Article 6 requirements for a fair hearing. Section 3 of the PTA provides for court supervision of such orders, requiring the court to apply principles of judicial review and a special closed material procedure involving a Special Advocate.
The initial proceedings focused on whether the section 3 procedures met Article 6 standards. However, section 11(2) of the PTA, which designates the court as the appropriate tribunal for human rights issues in these proceedings, was overlooked by both counsel and the judge below.
The legislative scheme distinguishes between derogating and non-derogating control orders. The control order against the Respondent was non-derogating, imposing obligations not incompatible with Article 5 rights. The court’s supervisory role over such orders under section 3 involves reviewing whether the Secretary of State’s decisions were flawed, applying judicial review principles, and following a procedure allowing closed material and Special Advocate participation.
The control order imposed restrictions on the Respondent’s residence, reporting, travel, and movement, justified by the Secretary of State as necessary to protect the public from terrorism-related risks. The Respondent denied the allegations and challenged the order.
Sullivan J reviewed closed material not disclosed to the Respondent or his legal representatives and concluded that the control order should remain in force but declared the procedures incompatible with Article 6. This appeal concerns whether that declaration was correct.
Legal Issues Presented
- Whether the procedures under section 3 of the Prevention of Terrorism Act 2005 for court supervision of non-derogating control orders comply with the requirements of Article 6(1) of the European Convention on Human Rights.
- Whether the court’s review under section 3 is limited to considering if the Secretary of State’s original decision was flawed at the time it was made, or whether the review must consider the position as it exists at the time of the court’s determination.
- The appropriate standard and scope of judicial review applicable to the Secretary of State’s decision to impose a non-derogating control order.
- The fairness of the use of closed material and the special advocate procedure in these proceedings under Article 6.
Arguments of the Parties
Appellant's Arguments (Secretary of State)
- The court’s role under section 3 is supervisory and involves judicial review principles, not a full merits review.
- The review should be limited to whether the Secretary of State’s decision was flawed at the time it was made, not the position at the time of the court’s hearing.
- The Secretary of State’s decision is an executive decision involving national security, warranting deference by the court.
- The use of closed material and the special advocate procedure are appropriate safeguards compatible with Article 6.
- Proceedings under section 3 do not amount to the determination of a criminal charge and thus attract civil procedural standards.
Appellee's Arguments (Respondent)
- The procedures under section 3 do not afford a fair hearing as required by Article 6, particularly due to the limited role of the court and the heavy reliance on closed material.
- The court should conduct a full merits review of the Secretary of State’s decision, including an independent assessment of the facts and necessity of the control order.
- The low standard of proof ('reasonable suspicion') applied by the Secretary of State is insufficient for the serious allegations made.
- The use of closed material without adequate disclosure or summary to the Respondent is fundamentally unfair.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Wilson v First County Trust [2004] 1 AC 816 |
The court must consider facts as they exist at the time it makes its order, ensuring compatibility with Convention rights. |
Used to interpret section 11(2) of the PTA, supporting that the court must review the control order based on current facts, not just at the time of the Secretary of State’s decision. |
| R v Secretary of State for the Home Department ex p Turgut [2001] 1 All ER 719 |
Judicial review may include evidence beyond that before the original decision-maker. |
Supported the purposive interpretation of section 3(10) to allow court review based on evidence at the time of the hearing. |
| R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 |
Judicial review principles and standards of fairness in administrative decisions affecting rights. |
Referenced in relation to the standard of review and whether a full merits review was possible under section 3(10). |
| A v Secretary of State for the Home Department [2004] EWCA Civ 324 |
Control order proceedings are civil, not criminal, for the purposes of Article 6. |
Confirmed that control order proceedings do not amount to criminal charges, influencing procedural requirements. |
| Bryan v United Kingdom (1995) 21 EHRR 342 |
Composite approach to Article 6 requirements in administrative decisions. |
Supported the notion that the court’s role may be supervisory in executive decisions involving national security. |
| R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 |
Distinction between factual findings requiring judicial determination and policy decisions warranting deference. |
Applied to distinguish elements of the Secretary of State’s decision requiring independent fact-finding from those involving policy judgment. |
| Runa Begum v Tower Hamlets LBC [2003] UKHL 55 |
Judicial determination required for findings of fact impacting rights under Article 6. |
Supported the need for the court to make its own assessment of reasonable suspicion in control order cases. |
| Fox, Campbell and Hartley v United Kingdom (1991) 13 EHRR 157 |
Definition of reasonable suspicion as an objective standard for detention or restriction. |
Used to clarify the standard of suspicion applicable to control orders. |
| Secretary of State for the Home Department v Rehman [2003] AC 153 |
Deference to executive decisions in matters of national security. |
Supported the principle that courts should accord respect to Secretary of State’s assessments in terrorism-related cases. |
| The Republic of Ireland v the United Kingdom (1978) 2 EHRR 25 |
Recognition of state security considerations in human rights assessments. |
Referenced to justify deference and procedural adaptations in security-sensitive cases. |
| Chahal v United Kingdom (1996) 23 EHRR 413 |
Permissibility of closed material and special advocate procedures in national security cases. |
Supported the use of special advocates and closed material as compatible with procedural fairness under certain safeguards. |
| Tinnely & McElduff v United Kingdom (1999) 27 EHRR 249 |
Judicial procedures can be modified to safeguard national security while protecting procedural justice. |
Confirmed acceptance of special advocate procedure in security-sensitive hearings. |
| Rowe v United Kingdom (2000) 30 EHRR 1 |
Disclosure of relevant evidence is not absolute and may be limited for public interest reasons. |
Used to support limited disclosure in control order proceedings balanced against fairness. |
| R v H [2004] UKHL 3 |
Disclosure must be ordered if non-disclosure renders the trial unfair as a whole. |
Established limits on non-disclosure even in national security cases. |
| R (Roberts) v Parole Board [2005] UKHL 45 |
Special advocate procedure may be compatible with Article 5(4) depending on facts. |
Illustrated conditional acceptance of closed material and special advocate use in fair trial context. |
| R v Smith (2001) 1 WLR 1031 |
Procedural safeguards can justify restrictions on disclosure to protect public interest. |
Referenced in relation to procedural fairness in restricted disclosure cases. |
| Fitt v United Kingdom (2000) 30 EHRR 480 |
Limitations on disclosure permissible if counterbalanced by judicial safeguards. |
Supported the balance between non-disclosure and procedural protections. |
Court's Reasoning and Analysis
The court began by identifying that the judge below had applied an incorrect legal test by restricting the court’s review to whether the Secretary of State’s decision was flawed at the time it was made, rather than considering the position as it existed at the time of the court’s determination. The court emphasized that section 11(2) of the PTA requires the court to act compatibly with Convention rights and thus to consider the current facts.
The court held that section 3(10) of the PTA should be read down to permit the court to review the Secretary of State’s decisions as at the time of the hearing, consistent with judicial review principles and Article 6 requirements. This approach aligns with the duty of the Secretary of State to keep control orders under continuous review.
Regarding the standard of review, the court rejected the notion that the court is limited to a low standard of proof or a narrow review. It held that the court must be able to make its own assessment on whether there are reasonable grounds for suspecting terrorism-related activity, an objective question of fact. The court recognized that the necessity element involves a value judgment to which some deference is owed to the Secretary of State, given national security concerns.
The court distinguished between substantive fairness, governed by substantive Convention rights, and procedural fairness under Article 6. It clarified that the issue is whether the procedure for determining reasonable suspicion and necessity is fair.
The court acknowledged the use of closed material and the special advocate procedure as permissible safeguards in national security cases, citing Strasbourg and domestic authorities. It recognized that full disclosure is not always possible without harming the public interest and that the PTA’s provisions and court rules provide appropriate protections.
Ultimately, the court found that the judge below erred in concluding incompatibility with Article 6 and that the procedures under section 3, properly interpreted and applied, can satisfy Article 6 requirements.
Holding and Implications
The court ALLOWED THE APPEAL against the declaration of incompatibility made by Sullivan J. It held that the procedures under section 3 of the Prevention of Terrorism Act 2005, when properly interpreted to allow the court to review the Secretary of State’s decisions as at the time of the hearing and with the safeguards provided by the special advocate and closed material regime, comply with Article 6(1) of the European Convention on Human Rights.
The direct effect is that the control order against the Respondent remains subject to valid court supervision under the PTA. The court’s decision clarifies the proper legal test and scope of review for such control orders, but it does not establish new precedent altering the fundamental balance between national security and individual rights beyond the interpretation of the PTA provisions in this case.