AM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Jackson,Lord Justice Tomlinson |
| Judgment Date | 21 June 2011 |
| Neutral Citation | [2011] EWCA Civ 710 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 2011 |
| Docket Number | Case No: T1/2010/0491 |
[2011] EWCA Civ 710
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Wilkie
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Jackson
and
Lord Justice Tomlinson
Case No: T1/2010/0491
Tim Moloney QC and Jude Bunting (instructed by Tuckers Solicitors) for the Appellant
Lisa Giovannetti QC and Carys Owen (instructed by Treasury Solicitors) for the Respondent
Mohammed Khamisa QC and Shaheem Rahman (instructed by Special Advocates Support Office)
Hearing dates: 29, 30 March 2010
INTRODUCTION
This is an appeal against the decision of Wilkie J given on a statutory review pursuant to s.3(10) of the Prevention of Terrorism Act 2005 ("the 2005 Act") of a control order first imposed by the Secretary of State upon the appellant on 21 June 2007, and renewed in June 2008 and again in June 2009. Permission to appeal was granted by the judge below. Wilkie J delivered three judgments in the case, one open, one in camera and one closed.
THE STATUTE
The judge set out the material provisions of the 2005 Act and it is convenient to replicate them here. The preamble describes the Act as
"An act to provide for the making against individuals involved in terrorism related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity …"
S.1(1) of the Act defines a control order as
"an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism."
S.1(2):
"The power to make a control order against an individual shall be exercisable —
except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State".
Such a control order, that is one made by the Secretary of State, is called a "non-derogating" control order. S.2(1) provides that the Secretary of State
"…may make a control order against an individual if he –
a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."
S.2(4):
"A non derogating control order —
a) has effect for a period of twelve months beginning with the day on which it is made; but
b) may be renewed on one or more occasions in accordance with this section."
S.2(5):
"A non derogating control order must specify when the period for which it is to have effect will end."
S.2(6):
"The Secretary of State may renew a non derogating control order (with or without modifications) for a period of twelve months if he —
a) considers that it is necessary for the purposes connected with protecting members of the public from a risk of terrorism for an order imposing obligations on the controlled person to continue in force; and
b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism related activity."
S.3 provides in part:
"(1) The Secretary of State must not make a non derogating control order against an individual except where –
a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order, and has been granted that permission;
b) the order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission.
(2) Where the Secretary of State makes an application for permission to make a non derogating control order against an individual, the application must set out the order for which he seeks permission and –
a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed;
b) the court may give that permission unless it determines that the decision is obviously flawed; and
c) if it gives permission the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.
…
(10) On a hearing in pursuance of directions under subsection (2) (c)… the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –
a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and
b) his decisions on the imposition of each of the obligations imposed by the order.
(11) In determining –
a) what constitutes a flawed decision for the purposes of subsection (2)… or
b) the matters mentioned in subsection (10),
the court must apply the principles applicable on an application for judicial review.
(12) If the court determines on a hearing in pursuance of directions under subsection (2)(c)… that a decision of the Secretary of State was flawed its only powers are –
a) the power to quash the order
b) the power to quash one or more obligations imposed by the order and
c) the power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
(13) In every other case the court must decide that the control order is to continue in force."
THE APPROACH ON THE CASES
The approach which the court is to take to the requirement imposed by s.3(11), that it should apply judicial review principles, has been explained by this court in MB [2007] QB 415 [2006] EWCA Civ 1140per Lord Phillips of Worth Matravers CJ (as he then was) at paragraphs 41–46. In particular:
"44…[A] purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed…
46. For these reasons we consider that section 3(10) can and should be 'read down' so as to require the court to consider whether the decisions of the Secretary of State in relation to the control order are flawed as at the time of the court's determination."
Later in the judgment Lord Phillips continued:
"60. Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the acts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism related activity. Thus far we accept Mr Starmer's submission as to the standard of the review that must be carried out by the court.
…
64. The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to record such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instance: SSHD v Rehman [2003] AC 153, Ireland v United Kingdom [1978] 2 EHRR 25.
65. Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive, and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order 'with the consent of the controlled person' envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations."
In an earlier case, O'Hara [1997] AC 286, 298, Lord Hope of Craighead had explained the notion of reasonable suspicion as follows:
"…In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed.
…
The question is whether a reasonable man would be of that opinion having regard to the information which was in the mind of the arresting officer."
THE CONTROL ORDER IN THIS CASE
The control order imposed upon the appellant presently constrains him by means of the following restrictions:
a) a requirement that he move out of his family home and reside at a particular address each night,
b) an eight hour curfew requirement,
c) a tagging requirement,
d) a severe restriction upon the number of individuals he may permit to enter the place where he is residing,
e) a requirement that he meet with no persons outside his residence without prior arrangement with the Secretary of State, and
f) a requirement to allow police officers and other authorised persons to enter and search his residence at any time.
These restrictions are plainly severe. There are impact statements before the court which evidence the appellant's deteriorating personal relationships said to be due to the rigours of the control order regime.
In such circumstances it is no surprise that our courts have insisted on high standards of procedural protection in relation to...
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