Secretary of State for the Home Department v AF (No 3) [2009...

Facts

• Control orders, under the Prevention of Terrorism Act 2005, imposed significant restrictions on liberty, though less than full detention.
• The case concerned the procedures for control order hearings, specifically the information disclosed to individuals subject to such orders (the controlees).
• The core question arose due to national security evidence, most of which was withheld from controlees on grounds of secrecy, being used as the basis for imposing control orders.
• Special Advocates were appointed to represent controlees in closed proceedings where sensitive material could not be directly disclosed.
• The House of Lords examined the extent of disclosure required to ensure a fair hearing as mandated by Article 6 of the European Convention on Human Rights.

Issues

1. Whether Article 6 of the European Convention on Human Rights requires that a controlee must be provided with sufficient information (the "gist") of the allegations against them to allow for an effective challenge to a control order.
2. To what degree national security concerns can justify withholding evidence from the controlee in proceedings imposing control orders.
3. Whether the procedures in place, including the use of Special Advocates, satisfy the requirement of procedural fairness in the context of control order proceedings.

Decision

• The House of Lords held that Article 6 requires the controlee to be given the essence or "gist" of the case against them, sufficient to enable effective instruction of their Special Advocate and to mount a meaningful defence.
• The court determined that procedural fairness cannot be achieved if the controlee does not know the substance of the allegations or evidence being relied upon to justify the control order.
• It was made clear that full disclosure of all sensitive material is not mandatory; however, enough must be revealed so the controlee can understand and respond to the case made against them.
• The judgment resulted in the quashing of several control orders that failed to provide adequate disclosure.
• The decision also influenced later legislative reforms, such as the introduction of Terrorism Prevention and Investigation Measures (TPIMs) to address disclosure and fairness concerns.

Legal Principles

• Article 6 ECHR guarantees the right to a fair hearing, which includes the right to know and challenge the case against oneself.
• Limitations for national security are permitted but must be necessary, proportionate, and cannot undermine the core of fairness guaranteed by Article 6.
• The provision of the "gist" of allegations is essential for natural justice (audi alteram partem) even in national security cases.
• The role of Special Advocates is important but cannot substitute for adequate disclosure to the controlee.
• The requirements for disclosure apply contextually but must always allow for an effective defence.

Conclusion

Home Secretary v AF (No 3) established that individuals subject to control orders must be provided with the "gist" of the case against them to ensure procedural fairness under Article 6 ECHR. This decision clarified the balance between national security and fundamental rights, mandating sufficient disclosure to enable an effective challenge while recognizing the need for some secrecy. The judgment significantly influenced subsequent legislation and continues to shape debate and practice relating to national security and individual rights.