UK Liberty

Do closed allegations and evidence preclude a fair trial?

Posted in control orders, rule of law by ukliberty on April 10, 2008

First the background:

AF was the subject of a non-derogating control order made by the Secretary of State on 11 September 2006 and varied on 18 October 2006. This order also was made under sections 2 and 3(1)(a) of the [Prevention of Terrorism Act 2005]. Following a full hearing under section 3(10) of the Act, Ouseley J on 30 March 2007 quashed the order but dismissed an application by AF for a declaration of incompatibility: [2007] EWHC 651 (Admin). The judge granted a certificate permitting both parties to appeal directly to the House pursuant to section 12(3)(b) of the Administration of Justice Act 1969, and the House granted leave on 17 May 2007. …

Issue (4): Whether the procedures provided for by section 3 of the 2005 Act and the Rules of Court are compatible with article 6 [Right to a fair trial] of the [European Convention on Human Rights] in circumstances where they have resulted in the case made against AF being in its essence entirely undisclosed to him and in no specific allegation of terrorism-related activity being contained in open material.

The judge decided … issues (3) and (4) in favour of the Secretary of State and adversely to AF, who cross-appeals against those. In his separate appeal, MB complains that in relying heavily on material not disclosed to him to support the control order against him the Court of Appeal acted incompatibly with article 6 and so unlawfully. Thus, despite factual differences between their cases, MB supports the argument of AF on issue (4), as do JUSTICE and Liberty (although Liberty intervene only in the case of Secretary of State for the Home Department v E and S [2007] UKHL 47).


I conclude that Article 6, as interpreted by the House of Lords in MB and AF, requires the substance of the Secretary of State’s case on which she relies to be disclosed to a respondent, with no exception, if there is to be compliance with Article 6. In other words, I respectfully agree with Mitting J’s formulation in AN cited above, but without the exception to which he referred. [the exception was where the defendant would have no conceivable answer to the allegations/evidence]

Was any other conclusion reasonable?


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