An v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,AN,Lord Justice Rix,Lord Justice Stanley Burnton |
| Judgment Date | 28 July 2010 |
| Neutral Citation | [2010] EWCA Civ 869 |
| Docket Number | Case No: T1/2010/0180; T1/2010/0179; T1/2009/1806 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2010 |
[2010] EWCA Civ 869
(Mitting J and (Silber J)
Before: Lord Justice Maurice Kay Vice President of the Court of Appeal, Civil Division
Lord Justice Rix
and
Lord Justice Stanley Burnton
Case No: T1/2010/0180; T1/2010/0179; T1/2009/1806
REF NO: PTA/33/2006, PTA/4/2007, PTA/23/2008, PTA/13/2009
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Miss Dinah Rose QC and Mr Dan Squires (instructed by Birnberg Pierce) for the Appellant AN
Mr Timothy Otty QC and Mr Ali Naseem Bajwa ( instructed by Chambers) for AE
Mr Timothy Otty QC, Mr Zubair Ahmad and Mr Tom Hickman (instructed by Middleweeks) for AF
Mr James Eadie QC, Mr Tim Eicke and Mr Paul Greatorex ( instructed by Treasury Solicitors) for the Secretary of State
Hearing date : 21 May 2010
Lord Justice Maurice Kay :
Following the decision of the House of Lords in Secretary of State for the Home Department v AF(No.3) [2009] UKHL 28, the Secretary of State elected not to make further disclosure to a number of persons subject to control orders but to revoke the orders then in force. However, there remained pending proceedings in the Administrative Court pursuant to section 3(10) of the Prevention of Terrorism Act 2005 (the 2005 Act) in relation to the orders. The cases raised the questions: Were the control orders to be quashed with effect from the dates upon which they had been made? Or should their revocation only operate prospectively? In AN [2009] EWHC 1966 Admin, Mitting J concluded that only prospective revocation was required but in AE and AF [2010] EWHC 42 Admin Silber J ordered that the orders be quashed ab initio. AN now appeals in the first case and the Secretary of State appeals in the second case. The point is not merely academic. AN is the subject of criminal proceedings for breach of his control order. If it were to be quashed ab initio, the prosecution would fall at the first hurdle. AE and AF do not face criminal proceedings but they wish to claim damages in respect of the period of about 3 1/2 years for which they were subject to their control orders prior to revocation.
The principal statutory provisions
By section 1(2) of the 2005 Act, the power to make a control order against an individual is exercisable:
“(a) 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; and
(b) in the case of an order imposing obligations that are in or include derogating obligations, by the court on the application of the Secretary of State.”
To date, the Secretary of State has not made any application, in these or other cases, to the court pursuant to section 1(2)(b) but has sought to proceed by way of non-derogating control orders under section 1(2)(a).
Section 2 provides:
“(1) 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.
…
(3) A control order made by the Secretary of State is called a non-derogating control order.”
Section 2(4) provides that a non-derogating control order has effect for a period of 12 months, but there is power given to the Secretary of State by section 2(6) to renew it.
Section 3 is headed “Supervision by court of making of non-derogating control orders”. It provides:
“(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 that 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; or
(c) [not material]
(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.”
If the Secretary of State makes an urgent order without permission pursuant to section 3(1)(b), he has an obligation under section 3(3) to refer the order immediately to the court, which has the function of considering whether the order was “obviously flawed”. If the court decides that it was obviously flawed, then by section 3(6)(a), “it must quash the order” or any condition in it that was obviously flawed. In the absence of an obvious flaw “it must confirm the order and give directions for a hearing in relation to the confirmed order” (section 3(6)(c)).
Other material provisions of section 3 are as follows:
“(10) On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (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), ( 6) or (8), 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 … that a decision of the Secretary of State was flawed, its only powers are –
(a) power to quash the order;
(b) power to quash one or more obligations imposed by the order; and
(c) 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.”
Section 9(1) creates the criminal offence of contravention, without reasonable cause, of an obligation imposed by a control order. The Schedule contains provisions governing control order proceedings, as does Part 76 of the CPR. Although we received submissions about them, I do not find it necessary to set them out. They contain the procedural detail which gave rise to the difficulties resolved by AF(No.3).
ANAN the judgment of Mitting J
Mitting J rejected the primary submissions on behalf of AN that the control order was a nullity. He said (at paragraph 5):
“If I had been persuaded that the order was a nullity, I agree that it would have to be quashed, like the order which the Secretary of State had no power to make in Secretary of State v JJ [2007] UKHL 45… Article 6 applies to ‘control order proceedings': see Lord Bingham's summary of the Secretary of State's concession in MB at paragraph 15. Whether or not the procedure used has involved significant injustice to the controlled person must be determined by looking at the process as a whole: paragraph 35. The making of the order by the Secretary of State is part of that process. But it is the Court which determines, when granting or withholding permission to make the order under section 3(2), whether the decision of the Secretary of State is obviously flawed. The obligation to disclose or gist to the controlled person the essence of the case only arises at the stage when the Secretary of State's decisions are reviewed under section 3(10). Subject to the qualification made below, when the Secretary of State decides to apply for permission to make the order and makes it, he is not inhibited from relying on closed material which, in due course, he may elect to withdraw rather than to disclose or gist. Further, when the Secretary of State decided to make the order it was reasonable to suppose that she would be permitted to rely on the closed material without gisting or disclosing it [because of her reasonable understanding of what the law was, prior to later decisions of the House of Lords] … On the principle that a decision of a properly constituted Court on an issue within its jurisdiction is binding unless and until set aside, [the submission on behalf of AN] is untenable. I am satisfied that both elements of the proceedings at the inception of the control order (Collins J's permission, and the Minister's decision, to make the order) were lawful and that neither was a nullity. Taken together, that stage of the proceedings cannot be so described. It follows that I am not required by ordinary judicial review principles to quash the order.”
Mitting J accepted that he had a discretion whether to quash the order or to give directions for it to be revoked. However, on the basis that it had been “properly made and renewed on the basis of material which the Secretary of State and Collins J were entitled to take into account” it was not a nullity. It had become...
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