Human rights—Right to fair trial—Control order

House of Lords
Lord Bingham, Lord Hoffmann, Baroness Hale, Lord Carswell, Lord Brown
31 October 2007

Non-derogating control order proceedings under the Prevention of  Terrorism Act 2005 (PTA 2005) do not involve the determination of a criminal charge for the purposes of the European Convention on Human Rights (the Convention), Art 6(1) but the standard may be equivalently high under the civil limb of Art 6(1).

Tim Owen QC, Kate Markus and Ali Bajwa (instructed by Arani & Co) for MB.
Timothy Otty QC and Zubair Ahmad (instructed by Middleweeks) for AF.
Ian Burnett QC, Philip Sales QC, Tim Eicke, Cecilia Ivimy and Andrew O’Connor (instructed by the Treasury Solicitor) for the secretary of state.
Michael Supperstone QC and Judith Farbey (instructed by the Special Advocates’ Support Office) as special advocates.
Michael Fordham QC and Tom Hickman (instructed by Clifford Chance) for the intervener, JUSTICE.

The proceedings involved non-derogating control orders made by the secretary of state under PTA 2005, ss 2 and 3(1)(a). The schedule to PTA 2005 provided a rule-making power applicable to those orders. It dealt with disclosure of information and the provision of special advocates. Part 76 of the Civil Procedure Rules (CPR) gave effect to the procedural scheme authorised by the schedule to PTA 2005. CPR 76.2 modified the overriding objective of the rules so as to require a court to ensure that information was not disclosed contrary to the public interest. Rule 76.29(8) provided that the court had to give permission to the secretary of state to withhold closed material where it considered that the disclosure would be contrary to the public interest. In the two cases before the house, the courts below had received and acted on closed material not disclosed to the parties, subject to the orders, taking into account the use of special advocates at their hearings. Leave to appeal direct to the House of Lords was granted under the Administration of Justice Act 1969, s 12(3)(b).

Lord Bingham:

The questions included: (i) whether or not a non-derogating control order imposed under PTA 2005 constituted a criminal charge for the purposes of Art 6 of the Convention; and (ii) whether or not the procedures provided for by PTA 2005, s 3 and the rules of court were compatible with Art 6 in circumstances where they had resulted in a case made against a person subject to a control order being in its essence entirely undisclosed to him and in no specific allegation of terrorism-related activity being contained in open material.

The conditions for making and upholding a non-derogating control order under PTA 2005, ss 2(1) (a) and 3(10) were that the secretary of state “(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers it necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual”.
The secretary of state accepted that control order proceedings fell within the civil limb of Art 6(1) because they were in their effect decisive for civil rights, in some respects at least. But the claimant argued that control order proceedings fell within the criminal limb of Art 6, or alternatively that if they fell within the civil limb only, they should nonetheless, because of the seriousness of what was potentially involved, attract the protection appropriate to criminal proceedings.

His lordship considered, inter alia, B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340, [2001] 1 All ER 562 and concluded that non-derogating control order proceedings did not involve the determination of a criminal charge. Parliament had gone to some lengths to avoid a procedure which crossed the criminal boundary: there was no assertion of criminal conduct, only a foundation of suspicion; no identification of any specific criminal offence was provided for; the order made was preventative in purpose, not punitive or retributive; and the obligations imposed had to be no more restrictive than were judged necessary to achieve the preventative object of the order. But he would accept the claimant’s alternative submission: in any case in which a person was at risk of an order containing obligations which were over-stringent, then the application of the civil limb of Art 6(1) entitled such a person to such measures of procedural protection as was commensurate with the gravity of the potential consequences.

Baroness Hale:

Her ladyship agreed with Lord Bingham the above, but her approach to the second issue was somewhat different. As the judge was a public authority for the purpose of the Human Rights Act 1998 and thus under a duty to act compatibly with Convention rights unless precluded from doing so by primary legislation which could not be read in any other way, he had to be in a position to quash the order.

Therefore para 4(3)(d) of the schedule to PTA 2005 should be read and given effect “except where to do so would be incompatible with the right of the controlled person to a fair trial”. Paragraph 4(4) and CPR 76.29(8) would have to be read in the same way. Where the court did not give the secretary of state permission to withhold closed material, she had a choice either to decide that, after all, it could safely be disclosed, or decide that it still had to be withheld. She could not then be required to serve it. But if the court considered that the material might be of assistance to the controlled person in relation to a matter under consideration, it might direct that the matter be withdrawn from consideration by the court. In any other case, it might direct that the secretary of state could not rely upon the material. If the secretary of state could not rely upon it, and it was indeed crucial to the decision, then the decision would be flawed and the order would have to be quashed.

Lord Carswell and Lord Brown delivered concurring opinions and Lord Hoffmann dissented.