Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28
Facts
The House of Lords had to consider in this conjoined decision by the Court of Appeal whether the procedure that had resulted in the making of non-derogating control orders against the three appellants satisfied their right to a fair hearing under the European Convention on Human Rights 1950 art.6. The appellants had argued that their art.6 rights had been violated by reason of the reliance by the judges making the orders on material received in closed hearing the nature of which had not been disclosed to them.
Legal Issue
Could the appellants successfully prove that they had been subject to an unfair trail contrary to art.6 of the Convention on Human Rights 1950.
Held
The House of Lords allowed the appeals in light of the Strasbourg judgment in A v United Kingdom. A person facing the severe restrictions associated with these control orders had to receive sufficient information about the allegations to give effective instructions and contest the case. Where the open material consisted only of general assertions and the decisive case remained closed, the procedure could not be made fair simply through a special advocate. The requirement did not demand disclosure of every source or document. The cases were returned for application of the correct standard. The judgment’s minimum disclosure rule must be understood in its control-order context rather than converted into an assertion that every aspect of Article 6 is incapable of qualification.
⭐ Legal Principle
In the control-order context addressed in AF (No 3), Article 6 required disclosure sufficient for the affected person to give effective instructions about the essential allegations. Special advocates did not cure a case whose decisive substance remained undisclosed to that person.
Significance
AF (No 3) identifies a minimum level of disclosure in the severe control-order context. Special advocates could assist with secret evidence, but could not replace the affected person's ability to give meaningful instructions about essential allegations. The reasoning is particularly important where undisclosed material supplies the decisive case against that person. Later decisions, including Tariq, show why the holding should not be applied mechanically across every statutory closed procedure. The nature of the proceedings and the relevant fairness safeguard must be identified precisely.
Common exam questions about this case
What information had to be disclosed?
The controlled person needed sufficient information about the allegations to give effective instructions to the special advocate and answer the case. The requirement concerned the substance necessary for meaningful participation. It did not automatically require disclosure of every intelligence source or document used in reaching the government’s assessment.
Could a special advocate alone cure wholly undisclosed allegations?
No. If the decisive case remained so general or hidden that the person could not instruct effectively, the special advocate’s involvement did not cure the defect. The individual may possess an explanation that cannot be communicated without knowing the allegation. The minimum disclosure requirement protected that practical ability to respond.
Does the ruling apply identically to every closed proceeding?
No. The House addressed control orders with serious consequences for the individual and followed the relevant Strasbourg decision. Other settings require analysis of their own rights and statutory safeguards. Tariq, for example, illustrates why the control-order disclosure standard should not simply be treated as a universal rule for every civil proceeding.