An v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 31 July 2009 |
| Neutral Citation | [2009] EWHC 1966 (Admin) |
| Docket Number | Case No: PTA/8/2007, PTA/37/2008 & PTA/39/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2009 |
[2009] EWHC 1966 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005
Mr Justice Mitting
Case No: PTA/8/2007, PTA/37/2008 & PTA/39/2009
MR ANDREW O'CONNOR (instructed by THE TREASURY SOLICITOR) for the applicant
MR TIMOTHY OWEN QC & MR DANIEL SQUIRES (instructed by BIRNBERG PEIRCE & PARTNERS SOLICITORS) for the respondent
MR ANGUS McCULLOUGH (instructed by the SPECIAL ADVOCATES SUPPORT OFFICE) as special advocates
Hearing date: 16th July 2009
On 29 th February 2008 I identified in a closed disclosure judgment what must be disclosed to AN to fulfil his right to a fair hearing in accordance with my, then, understanding of the speeches of the majority in Secretary of State for the Home Department v MB & Others [2007] UKHL 46. That understanding was, that to fulfil that right, the special advocates must be able to challenge the Secretary of State's grounds for suspicion on the basis of instructions from the controlled person which directly addressed their essential features, by being told their gist. I put the Secretary of State to an election, comparable to that specified in CPR 76.29(7) – to make the disclosure required or to withdraw the matter to which it related from consideration. By its order of 10 th June 2009, the House of Lords quashed my decision and remitted the matter to me to reconsider afresh. It would have been open to the special advocate, Mr McCullough, to submit that further disclosure, beyond that which I had ordered, should be made. In the event, any such submission would have been academic, because, on 15 th July 2009, the Secretary of State indicated that he would be withdrawing reliance on the material on which his predecessor was put to her election.
That material represented the essence of the case, as it was then put by the Secretary of State, against AN. Mr O'Connor submits that the Secretary of State's decision to make the control order and to continue it in force and to renew it on 3 rd July 2009 can be shown not be flawed by reference to other material, not withdrawn, which was contained in the original Security Service submission to his predecessor. That material has not yet been disentangled from that which the Secretary of State has withdrawn. Nor has it been disclosed or gisted to AN in anything other than the most general terms. It may or may not be capable of justifying a decision to make a control order and/or to continue it in force. For reasons which are briefly explained in the closed judgment, they cannot reasonably be taken to have been the Secretary of State's essential grounds for suspecting that AN was or had been involved in terrorism related activity when she made the control order on 4 th July 2007. The exercise which Mr O'Connor invites me to undertake is, accordingly, not that required by section 3(10) of the Prevention of Terrorism Act 2005 – to determine whether the decision of the Secretary of State that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order, but whether or not, given the withdrawal of the material upon which the decision was essentially founded, it remains possible to uphold that decision on the basis of what is left. This was not the issue considered by the House of Lords in MB or Secretary of State for the Home Department v AF & Others [2009] UKHL 28. The issue is free of binding authority and guidance. The outer perimeters of the range of circumstances in which the question may arise are readily identifiable. When the Secretary of State makes the decision to make a control order on a materially erroneous basis, the decision should be held to be flawed and will normally be quashed: Secretary of State for the Home Department v AT & AW [2009] EWHC 512 (Admin) paragraphs 9 to 20. When the Secretary of State has several grounds for reasonable suspicion, but is unwilling to disclose or gist one or more of the less significant grounds, he is nonetheless entitled to rely upon the remaining grounds and the Court can determine whether or not his decision was flawed on those grounds alone. No difficulty, in my judgement, would arise in a case in which the Secretary of State relied on, say, three distinct grounds which, independently of each other, would justify the making and continuance of the order, even if he were forced to withdraw one or even two of the three from consideration. It would still then be possible to answer the statutory question whether or not the Secretary of State's decision that the requirements of section 2(1)(a) was flawed. That is not the exercise which Mr O'Connor...
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