Secretary of State for the Home Department v AF AN and AE (No 3): HL 10 Jun 2009

The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The material was withheld in the interests of national security.
Held: The failure to supply the defendants with the information infringed their human rights. They were left unable to give effective instructions to enable them to defend themselves through the special advocate. The open material contained only general assertions, and the case depended to a decisive degree on the closed material. In a hearing under the section, the court had to consider not only whether enough had been disclosed to conform with the requirements set down in A v UK, but also whether any other matter not disclosed was essential to the farness of the trial. The judicial committee was bound to apply a clear statement of principle by the Grand Chamber in respect of the precise issue that was before the Committee: ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’
Lord Phillips of Worth Matravers discussed a recent decision of the Strasbourg Court saying that it: ‘establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations’.
Lord Hoffmann said that the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision.


Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood


[2009] UKHL 28, Times 11-Jun-2009, [2009] 3 WLR 74, [2009] HRLR 26, [2009] 3 All ER 643, [2009] WLR (D) 180, 26 BHRC 738, [2010] 2 AC 269


Bailii, WLRD


European Convention on Human Rights , Prevention of Terrorism Act 2005 3(10), Human Rights Act 1998


England and Wales


CitedA and Others v The United Kingdom ECHR 21-Jan-2008
The court addressed the extent to which the admission of closed material was compatible with the fair hearing requirements of article 5.4, challenging lawfulness of detention, which imported the same rights as article 6.1 in its criminal aspect. The . .
See AlsoSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .

Cited by:

CitedSecretary of State for the Home Deparment v AN Admn 31-Jul-2009
The court re-considered a control order made on the basis of material withheld from the defendant. The Secretary of State had now withdrawn his reliance on that material, rather than make further disclosures. The prosecution invited the court to . .
CitedTariq v The Home Office EAT 16-Oct-2009
(1) The procedure sanctioned by rule 54 of the Employment Tribunals Rules of Procedure, and by the Employment Tribunals (National Security) Rules . .
CitedRegina v KS CACD 17-Nov-2009
The jury had been discharged by the judge after finding jury tampering, and he decided to continue alone. The jury had not known of the earlier convictions of others involved in the alleged conspiracy, but the judge did and he had made reference to . .
CitedAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
CitedHorncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
CitedBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedS v Northampton Crown Court and Another Admn 7-May-2010
S faced serious charges of defrauding Customs and Excise. After allegations of jury tampering came to light, a decision was made for trial by judge alone, and his bail was revoked. He now sought judicial review of the refusal of bail. He challenged . .
CitedChief Constable and Another v YK and Others FD 6-Oct-2010
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
CitedHome Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
CitedBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
CitedHaralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
CitedReprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .
CitedQX v Secretary of State for The Home Department Admn 15-May-2020
Challenge to Temporary Exclusion Order.
Held: The concept of ‘civil rights and obligations’ cannot be interpreted solely by reference to national law but has an autonomous meaning within article 6(1) . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights, Natural Justice

Updated: 10 July 2022; Ref: scu.346821