Terrorism Prevention and Investigation Measures Act 2011

Terrorism Prevention and Investigation Measures Act 2011

2011 CHAPTER 23

Commentary on Sections

Section 18 and Schedule 4: Proceedings relating to measures

107. Section 18 makes further provision for court proceedings in relation to decisions taken under this Act.

108. Subsection (1) provides that an appeal may only be brought from a determination in TPIM proceedings on a point of law. The effect of subsection (2) is that an individual subject to a TPIM notice (or any person other than the Secretary of State) may not bring an appeal on a determination of the court in relation to an application by the Secretary of State for permission to impose a TPIM notice or a reference to the court under the urgency procedure.

109. Subsection (3) gives effect to Schedule 4. This Schedule makes provision relating to TPIM proceedings including a power to make rules of court and certain requirements that specified matters must be secured by the rules that are made.

110. In practice, as with control orders, the court proceedings in TPIM cases will have both ‘open’ and ‘closed’ elements. The individual concerned and his or her chosen legal representatives can be present at the open hearings, and see all the open material used in those hearings. He or she cannot be present at the closed parts of the proceedings, or see the closed material. Closed material is sensitive material that it would not be in the public interest to disclose to the individual concerned (for example because disclosure is contrary to the interests of national security, the international relations of the United Kingdom or the detection and prevention of crime).

111. After service of a TPIM notice, the individual will be provided with the open case against him or her. The open case must contain as much material as possible, subject only to legitimate public interest concerns. Paragraph 10 of Schedule 4 provides for the appointment of a special advocate in relation to any closed proceedings. A special advocate attends all parts of the proceedings (both open and closed) and, like the judge, sees all the material – including the closed material not disclosed to the individual. The role of the special advocate is to act in the individual’s interests in relation to the closed material and closed hearings. Part of the function of special advocates is to ensure that the closed material is subject to independent scrutiny and adversarial challenge – including making submissions (in closed session) on whether or not the closed material should in fact be disclosed to the individual.

112. In particular, the Schedule makes provision that rules must secure that, with the permission of the court, the Secretary of State may not disclose certain material other than to the court and a special advocate where this would be contrary to the public interest. It also makes provision in relation to the summarising of sensitive material. The rules may provide for the court to make an anonymity order in relation to an individual subject to a TPIM notice.

113. Paragraph 5 of Schedule 4 provides that nothing in this provision, or in Rules of Court made under it, is to be interpreted as requiring the court to act in a way inconsistent with Article 6 of the ECHR. In other words, the individual’s Article 6 right to a fair hearing takes precedence over anything in the legislation – in particular the provision about withholding information from the individual. This provision reflects the House of Lords’ judgment in Secretary of State for the Home Department v MB & AF [2007] UKHL 46 (“MB & AF”). In that judgment, the Law Lords found that in rare cases the provisions of the 2005 Act might lead to a breach of Article 6 (civil) but concluded that it was possible to read down the provisions so they could be operated compatibly with Article 6 in all cases. They therefore read down the provisions under the 2005 Act requiring the court to withhold closed material from the controlled person, such that material must only be withheld if it was compatible with Article 6 to do so. The wording in paragraph 5 gives effect to the read down in MB & AF.

114. Subsequent to the MB & AF judgment, the Law Lords handed down a further judgment (Secretary of State for the Home Department v AF and others [2009] UKHL 28 (“AF (No. 3)”) on the compatibility of control order proceedings in Article 6, which took into account the (then) recent ECtHR decision in A & Others v United Kingdom [2009] ECHR 301. In brief, the AF (No. 3) judgment held that, in relation to the control order proceedings before the Law Lords, the controlled person must be given sufficient information about the allegations against him or her to enable him or her to give effective instructions to the special advocate in relation to those allegations. The disclosure obligations required by the judgment in AF (No. 3) will be applied as appropriate by the courts in TPIM proceedings.