Roger Smith explains why terror defendants have the right to know the case against them in order to ensure that they receive a fair trial


The Home Secretary, Jacqui Smith, has claimed three recent related decisions about control orders as a success. She was ‘pleased that the Lords did not find the review process in these cases had been unfair’. For human rights organisation Liberty, Shami Chakrabarti was content to agree the minimal effect of the cases: ‘It is now left to the Strasbourg Court or Westminster to restore the age-old right to a fair trial,’ she was quoted as telling the BBC.



However, neither position is quite fair on what the Lords decided on the issue with which Justice was particularly concerned in its third-party intervention: the extent to which defendants have the right to know the case against them.



The right to a fair trial is a core human right and a major civil liberty. Domestically, judges have protected this right by reference both to the common law (resisting such things as excessive court fees – see R v Lord Chancellor ex parte Witham [1998] QB 575) and article 6 of the European Convention on Human Rights. The convention gives the explicit right for a suspect in relation to any criminal charge ‘to be informed promptly, and in a language he understands and in detail, of the nature and cause of the accusation against him’.



Control orders are actually civil in form, but the principle holds good as a major element of a fair trial. Common law authority stretches back at least to the 1960s, to the effect that ‘the essential requirements of natural justice at least include that… [someone] be made aware of the charges which he has to meet’ – see Ridge v Baldwin [1964] AC 40, 113-114, Kaunda v Government of the Federation of Malaya [1962] AC 322.



Problems arise because hearings for control orders against those suspected of being involved in terrorism are divided into two parts: open and closed. In the closed hearings, the Home Secretary’s case can be tested by a special advocate, not the defendant’s own lawyers. In some cases, the consequences are not great. Sufficient evidence is disclosed in the open hearing for a defendant to understand why the Secretary of State wants a control order. In others, the defendant can have no idea of the case against them. This was the case of MB, a 24-year-old student who is a naturalised British citizen born in Kuwait. He knew that he had been stopped from flying out of the country to the Middle East but not much else.



Of the evidence against him, the judge at first instance commented: ‘The basis [for the case against the defendant] is wholly contained within the closed material. Without access to that material, it is difficult to see how, in reality [MB] could make any effective challenge to what is, on the open case before him, no more than a bare assertion.’



Control orders can be pretty drastic in their effect. Some of the appellants were subject to an 18-hour-a-day curfew, had to wear a tag at all times, were restricted in movement to nine square miles, limited in whom they could see, and required to get permission to see them. Lord Bingham found that ‘their lives were wholly regulated by the Home Office, as a prisoner’s would be, although breaches were much more severely punishable’.



For the majority of the five Law Lords, these restrictions were so extensive that the worst curfews amounted to a deprivation of liberty. Two of them declined to speculate on what they might find acceptable but Lord Carswell drew the line at 16 hours, saying that ‘beyond that, liberty is lost’. Jacqui Smith instantly adopted this, knocking a couple of hours from the existing restrictions and re-imposing the curfew at 16 hours. Such a minor effect is why Liberty is itching to get the case to the European Court of Human Rights in Strasbourg and to attack the substantive policy of control orders as, effectively, a variant of internment without trial.



The judgment will, however, mean a major change in procedure. Currently, proceedings begin with the Home Secretary indicating what evidence she wishes to disclose to the defendant and which she wants to keep secret. The judge can overrule her, but not if persuaded that the public interest in maintaining national security is at stake. The hearings then divide. The open proceedings are in the usual adversarial form. For the closed hearings, the defendant is excluded, as are his lawyers. A special advocate tests the evidence but without any instructions from, or contact with, the person whose liberty is at stake. Judges will now have the power to demand sufficient open disclosure for the defendant to know enough of the case against him to have a fair trial.



We will have to see how these new arrangements work out in practice. However, the House of Lords has stood up for the fundamental liberty represented by the right to fair trial. And it has done so in terms that the Home Secretary appears to accept. Now that is quite a result.



Roger Smith is director of the law reform and human rights organisation Justice