44 A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT notwithstanding the use of the special-advocate procedure; ‘the very essence of [his] right [to a fair hearing] [will have been] impaired’ (Tinnelly & Sons Ltd [and Others] and McElduff and Others v. [the] United Kingdom, [cited below] § 72).” Lord Bingham did not dissent but employed different reasoning. He held that it was necessary to look at the process as a whole and consider whether a procedure had been used which involved significant injustice to the controlee; while the use of special advocates could help to enhance the measure of procedural justice available to a controlled person, it could not fully remedy the grave disadvantages of a person not being aware of the case against him and not being able, therefore, effectively to instruct the special advocate. Lord Hoffmann, dissenting, held that once the trial judge had decided that disclosure would be contrary to the public interest, the use of special advocates provided sufficient safeguards for the controlee and there would never in these circumstances be a breach of Article 6. 97. In Secretary of State for the Home Department v. AF [2008] EWCA Civ 1148, the Court of Appeal (Sir Anthony Clark MR and Waller LJ; Sedley LJ dissenting), gave the following guidance, based on the majority opinions in the case of MB (see paragraph 96 above), regarding compliance with Article 6 in control order cases using special advocates (extract from the head-note): “(1) In deciding whether the hearing under section 3(10) of the 2005 Act infringed the controlee’s rights under Article 6 the question was whether, taken as a whole, the hearing was fundamentally unfair to the controlee, or he was not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing was impaired. More broadly, the question was whether the effect of the process was that the controlee was exposed to significant injustice. (2) All proper steps ought to be taken to provide the controlee with as much information as possible, both in terms of allegation and evidence, if necessary by appropriate gisting. (3) Where the full allegations and evidence were not provided for reasons of national security at the outset, the controlee had to be provided with a special advocate. In such a case the following principles applied. (4) There was no principle that a hearing would be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there was, the irreducible minimum could, depending on the circumstances, be met by disclosure of as little information as was provided in AF’s case, which was very little indeed. (5) Whether a hearing would be unfair depended on all the circumstances, including the nature of the case, what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be, what steps had been taken to summarise the closed material in support without revealing names, dates or places, the nature and content of the material withheld, how effectively the special advocate was able to challenge it on behalf of the controlee and what difference its disclosure would or might make. (6) In considering whether open disclosure to the controlee would have made a difference to the answer to whether there were reasonable grounds for suspicion that the controlee was or had been involved in terrorist-related activity, the court had to have fully in mind the problems for the controlee and the special advocates and take account of all the circumstances of the case, including what, if any, information was openly disclosed and how