A panel of nine Law Lords has ruled unanimously against the government's use of secret evidence in control order cases. The case had been brought by three men under control orders who cannot be named are are know only as AF, AN and AE. Their legal team argued that that the government's refusal to disclose even the gist of the evidence against them was unfair
The ruling, given on 10 June, says that the right to a fair trial under Article 6 of the European Convention on Human Rights required defendants in control order cases to be given sufficient detail of the allegations against them in order to give effective instructions to their special advocate
Lord Philips of Worth Matravers, the senior judge on the panel, said:
"What is in issue in control order cases is whether there are reasonable grounds for suspecting involvement on the part of the controlee in terrorism-related activity. This is a low threshold to cross and there are, so it seems to me, bound to be cases where the closed evidence is so cogent that the judge can rightly form the conclusion that there is no possibility that the controlee would be able, if this evidence were disclosed to him, to dispel the reasonable suspicion."
"There are, however, strong policy considerations that support a rule that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him. The first is that there will be many cases where it is impossible fo r the court to be confident that disclosure will make no difference. Reasonable suspicion may be established on grounds that esta blish an overwhelming case of involvement in terrorism-related activity but, because the threshold is so low, reasonable suspicion may also be founded on misinterpretation of facts in respect of which the controlee is in a position to put forward an innocent explanation. A sy stem that relies upon the judge to distinguish between the two is not satisfactory, however able and experienced the judge. "
The ruling means that the government will be forced to re-open the cases against the three men concerned, and perhaps re-open other cases as well. It is likely to make it very difficult for the government to operate the control order system in the way in does at present