• In the case of AT v Secretary of State for the Home Department 2012 EWCA Civ 42, if the determination of a major issue relies on closed material, the party other than the state requires adequate receipt of notice of the arguments that are alleged against them.

Facts of the Case

  • AT, who was the claimant in the case (C), was granted asylum in the UK, while simultaneously being a member of the Libyan Islamic Fighting Group (LIFG), fighting against the regime under Ghaddafi.
  • LIFG was ruled out under the Terrorism Act 200 in the year 2005. As such, C was given a non-derogating control older. C appealed this order.
  • The judge, however, upheld the order served to C on the ground that he remained a very influential individual as a member of LIFG.
  • C appealed to the Court of Appeal on the basis that the judge didn’t provide C with enough information to argue his case and against the allegations that were brought (specifically being that he remained an active member of LIFG)

Issues

  • Did C require sufficient information in relation to the allegation against him?

Held by the Court of Appeal

  • The Court of Appeal allowed the appeal and found that the decision of the control order couldn’t be upheld.

Carnwath LJ

  • His Lordship considered the test in A v United Kingdom and concluded that if open material involves general assertions, for those assertions to be proved, the closed material itself is required to be decisive when concluding the outcome.
  • “In the face of AT’s consistent denial of his continuing role, there needed to be some material by which that issue could be determined against him. If there was noting in the open material, it could only be in the closed material. Otherwise the allegation could not be sustained.” [50]
  • “The open judgement must stand on its own merits. Where reliance is placed on closed material to determine an issue of significant, that needs to be made clear in the judgement, and the judge needs to satisfy himself that the subject has had adequate notice of the points against him.” [51]

Editor’s Notes

  • It is vital that a party receives a full breakdown of the claims and allegations that are being brought against them as this ensures a fair trial and a means for which the party can bring their own claim and ultimately have a defence for their case.