AR v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 15 July 2009 |
| Neutral Citation | [2009] EWHC 1736 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/6/2009 |
| Date | 15 July 2009 |
[2009] EWHC 1736 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Justice Mitting
Case No: PTA/6/2009
Mr Alasdair Mackenzie (Instructed By Trp Solicitors) For The Appellant
Mr James Strachan (Instructed By The Treasury Solicitor) For The Respondent
Miss Melanie Plimmer (Instructed By The Special Advocates Support Office) As Special Advocates
Hearing dates: 1st July 2009
MR JUSTICE MITTING :
AR appeals under section 10(3) of the Prevention of Terrorism Act 2005 against the Secretary of State's refusal to modify the control order first served on him on 4 th April 2008 and renewed on 3 rd April 2009. He sought five modifications:
i) a reduction in the curfew from twelve hours to eight or nine hours
ii) an extension of the geographical boundary, comprising most of Bury, within which he is confined, to include Bolton, Rochdale and the part of Manchester known as Cheetham Hill
iii) permission to attend an ESOL English course at Bury College
iv) permission to attend (as a National Health Service patient) the Smile Dental Practice in Unsworth, about a mile and a half outside the Bury boundary
v) permission for his solicitors to leave their mobile telephones switched on when visiting his home.
Each modification was refused when sought. However, on 18 th June 2009, the Secretary of State agreed to an extension of the boundary to include substantially the whole of the built up area of Bolton, with a single access route connecting it to Bury, with effect from 22 nd June 2009.
The background is set out in paragraph 1 of my judgment in the review under section 3(10) of the control order imposed on AR: [2008] EWHC 3164 (Admin). The single issue, in relation to each modification sought, is whether or not the decision of the Secretary of State that the obligation in its unmodified form continues to be necessary for purposes connected with preventing or restricting involvement by AR in terrorism-related activity is flawed: section 10 (5)(b). In determining that question I must apply the principles applicable on an application for judicial review: section 10(6). The relevant principles are rationality and proportionality. I must pay a degree of deference to the decisions taken by the Secretary of State on the advice of the Security Service: Secretary of State for the Home Department v MB [2006] EWCA Civ 1140 paragraph 64. Mr MacKenzie, for AR, reserved his position on the application of Article 6 to this appeal, but did not suggest that I should hear argument about the need for any modification of CPR Part 76 to determine it. Owing to a misunderstanding between legal representatives, Ms Hadland the Home Office civil servant who chairs the control order review group which manages all current control orders, was not warned that she might be required to attend the hearing of the appeal to be cross examined on her statements. Although I was told that she could attend, she would be unlikely to be able to give useful evidence, because she had not had the opportunity to review AR's file for the purpose of giving evidence about his case. Mr MacKenzie identified the topics about which he wished to ask her questions. I expressed the view that it was unlikely that he would be able to advance AR's case by questioning her on those topics. In those circumstances, he accepted that the hearing should proceed without her. I am satisfied that her absence has caused no material disadvantage or unfairness to AR.
When I conducted the section 3(10) review of AR's control order, I applied the views I had formed about the LIFG in my open and closed generic judgments (see paragraph 19). Since then, very significant developments have occurred in the negotiations between the Libyan government and the imprisoned leadership of the LIFG, which I summarised in paragraph 20 of Secretary of State for the Home Department v AV [2009] EWHC 902 (Admin). For the reasons set out there, there is now a reasonable expectation that the talks will not fail. That remains the position today. That background factor brings into question the need for a control order to be maintained in the case of any individual who was a...
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