Right to a Fair Hearing, Control Orders and Counter-Terrorism

Secretary of State for the Home Department v AF & Anor [2009] UKHL 28 (10 June 2009) Nine Lords of the House of Lords have unanimously followed the Grand Chamber of the European Court of Human Rights in Strasbourg (ECHR) in the decision of A v United Kingdom.  That decision clarified that where a person subject to a 'control order' under the Prevention of Terrorism Act 2005 (PTA) challenges its validity, he or she must be given sufficient information to effectively answer the allegations against them.  The reading down of the PTA to include a right to a fair trial means control orders cannot be based entirely on evidence undisclosed to the 'controlee'.

Facts

The three appellants in AF were subject to control orders significantly restricting their liberty.  The orders were made because the Secretary of State suspected the appellants were, or had been, involved in terrorism-related activity.  The issue raised in the appeals was whether the procedures for judicial supervision of the control orders satisfied the appellants' right to a fair hearing as guaranteed by art 6 of the European Convention on Human Rights.  Each contended this right was violated because the judges relied on material received in closed hearings, the nature of which was not disclosed to the appellant.

Prior to this decision, the rules governing hearings on control orders were outlined by the House of Lords in Secretary of State for the Home Department v MB and AF.  The Court of Appeal in AF considered MB in detail and interpreted its principles as follows:

• The right to a fair trial was to be read into the PTA rather than declaring the Act incompatible with the Convention.
• Where full allegations and evidence are not provided to the appellant [the 'controlee'] for reasons of national security, the 'controlee' must be provided with a special advocate who will represent the controlee's interests in a closed hearing;
• There is no principle that a hearing will be unfair under art 6 and the HRA in the absence of disclosure; and
• Whether or not a hearing is unfair depends on all the circumstances of the case. That includes what difference disclosure might make, meaning where a judge based his/her decision on closed material, this would not necessarily compel the conclusion that the controlee was denied procedural fairness.

The House of Lords revisited these issues to address the criticism that the MB decision was too sanguine in accepting how much protection the special advocates procedure could offer 'controlees', and that the principle of considering what difference disclosure might make was unclear.  These inquiries effectively became redundant when, one week before the hearing, the ECHR delivered a judgment in A.  The decision addressed the extent to which the admission of closed material was compatible with the fair trial requirements of arts 5(4) and 6(1) of the Convention.  Accordingly, the House of Lords in AF primarily addressed whether the decision in MB and judicial supervision of control orders was in line with A.

Decision

The original submissions before the House of Lords highlighted the tension between a rigid interpretation of Convention rights based on 'a solid bedrock of core legal principle', against a flexible, teleological approach to procedural justice, more in line with the common law tradition.

The applicants submitted the right to a fair hearing in the Convention conferred a core, irreducible entitlement to be told sufficient information of the case against a 'controlee' to enable him or her to challenge that case, and that there had been no approval of the 'makes no difference' principle.

The Secretary of State submitted that the relevant principle was whether, having regard to the proceedings as a whole, there had been significant injustice to the controlee or whether the controlee had been afforded a substantial and sufficient measure of procedural justice.  On their submissions, the court was entitled to consider what difference any disclosure to a controlee may have made.

Unexpectedly, the submissions were answered definitively before the House of Lords hearing, when in Strasbourg, the ECHR held where full disclosure was not possible due to concerns for national security, the Convention requires that the 'controlee' still has the possibility to effectively challenge the case against him or her.  This in turn obliges disclosure of sufficient information to enable the 'controlee' to give adequate instructions to a special advocate.  Where the open material consists purely of general assertions but 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 or unanswerable the allegations.

The House of Lords, when faced with these dicta, followed the ECHR, although not without some reservation.

Lord Hoffman made very clear his belief that the ECHR decision was wrong, illustrating his personal politics in statements like:

It is sometimes said that it is better for ten guilty men to be acquitted than for one innocent man to be convicted.  Sometimes it is a hundred guilty men.  The figures matter.  A system of justice which allowed a thousand guilty men to go free for fear of convicting one innocent man might not adequately protect the public.

Other Lords expressly endorsed the ECHR approach with Lord Hope quoting that 'denunciation on grounds that are not disclosed is the stuff of nightmares.  The rule of law in a democratic society does not tolerate such behaviour'.  He said 'the slow creep of complacency must be resisted.  If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle'.

Lord Scott, while agreeing that the ECHR decision had to be followed, disagreed with reading fair trial requirements into the PTA.  Rather he believed:

The underlying problem, as I see it, with the 2005 Act and the government's attitude to it, is that the government having formed the view that the provisions of the Act were necessary for the safety of the public from terrorism... has been unwilling publicly to accept that the implementation of these provisions may require the curtailment of fair hearing rights, and to face up to whatever may be the political consequences of that acceptance.

These diverse judgements demonstrate the wavering attitudes of the Lords on numerous issues underpinning the applications.  Unfortunately for them, the potency of their jurisprudence was blunted once the ECHR decision emerged.  As Lord Rodger said 'Argentoratum locutum, iudicium finitum - Strasbourg has spoken, the case is closed.'

Relevance to the Victorian Charter

The decisions in AF and A may prove persuasive for interpreting the right to a fair trial guaranteed by s 24 of the Victorian Charter, however Victorian courts are not obliged to apply a prescriptive interpretation.  Victorian judges may prefer to retain the flexibility concomitant with the common law tradition that the UK Lords were so loathe to concede.

Furthermore, Australian control orders (as imposed upon 'Jihad' Jack Thomas) were introduced into the Criminal Code 1995 (Cth) by the Anti-Terrorism Act 2005 (Cth), placing them under the purview of federal jurisdiction.  Consequently State Human Rights Charters have little relevance.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/28.html.

Igor Golshtein and Jake Goldenfein are graduates at DLA Phillips Fox