Queen’s Bench Division

Published April 25, 2008

Secretary of State for the Home Department v AF (No 3)

Before Mr Justice Stanley Burnton

Judgment April 9, 2008

Fair trial provisions guaranteed by the European Convention on Human Rights could not be overcome by a claim that the offended party’s case had no possible chance of success.

Mr Justice Stanley Burnton so held in the Queen’s Bench Division when allowing the claim of AF, remitted from the House of Lords in proceedings under the Prevention of Terrorism Act 2005 (The Times November 6, 2007; [2007] 3 WLR 681), that control order processes used against him had entailed breaches of article 6 of the Convention because there had been insufficient disclosure of the accusations against him and of relevant evidence for him to challenge.

AF had been subjected to a control order process under section 3 of the 2005 Act before Mr Justice Ouseley with the intention that he should be kept under house arrest without any criminal process (The Times April 18, 2007).

On appeal, the House remitted the question whether sufficient closed allegations and evidence had been disclosed to enable AF to mount an effective challenge. That question was heard by his Lordship who made a clear finding ([2008] EWHC 453 (Admin)) that there had been insufficient disclosure to enable an effective challenge to be made.

However, following Lord Brown of Eaton-under-Heywood, his Lordship thought that any remedy might be withheld if, notwithstanding unjust failure to disclose, no possible challenge could have succeeded. He therefore adjourned for a further hearing for AF to argue that his challenge to house arrest had some substance.

Mr Tim Eicke and Ms Kate Grange for the Home Secretary; Mr Timothy Otty, QC, Mr Zubair Ahmad and Mr Tom Hickman for AF; Mr Hugo Keith and Mr Jeremy Johnson as special advocates.

MR JUSTICE STANLEY BURNTON said that Mr Eicke had presented a powerful submission that it was not now open to his Lordship to consider whether Lord Brown’s exception represented the law.

In his Lordship’s earlier judgment, he had said that proceedings might comply with article 6 if there was no conceivable answer to the Home Secretary’s case notwithstanding the absence of any meaningful disclosure to the respondent.

That statement was incorrect. His Lordship had jurisdiction to determine the issue; the question was whether he should exercise his discretion to do so. He proposed to do so.

The exception did indeed confuse procedure with substance. Article 6 was concerned with procedure, not with substance.

In asking, for the purposes of compliance with article 6, whether a party had suffered injustice, the injustice referred to his procedural rights, not to the question whether the result of the litigation was the right result.

A guilty man was entitled to a fair trial. If the court was satisfied that the breach of article 6 was without consequence, the question should arise whether the court’s decision should nevertheless stand; not every breach of article 6 invalidated the decision of the court. But it did not follow from the fact that the result was the right one substantively that it was reached fairly.

His Lordship put the Home Secretary to her election as to whether she wished to disclose any further allegations or evidence. There would have to be a further hearing, after any appeal, to address the future of the present proceedings.

Solicitors: Treasury Solicitor; Middleweeks, Manchester; Treasury Solicitor, special advocates support unit.

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