AV v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 31 July 2008 |
| Neutral Citation | [2008] EWHC 1895 (Admin) |
| Docket Number | Case No: PTA/21/2008 and PTA/25/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2008 |
[2008] EWHC 1895 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF PROCEEDINGS UNDER THE
PREVENTION OF TERRORISM ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mitting
Case No: PTA/21/2008 and PTA/25/2008
Mr Raza Hussain (instructed by Tyndallwoods Solicitors in respect of AV and instructed by Birnberg Peirce & Partners in respect of AU) appeared on behalf of the Appellant.
Miss Katherine Olley (instructed by the Treasury Solicitor) appeared for the Secretary of State
Miss Clare Brown (instructed by the Special Advocates' Support Office in respect of AV) and Mr Martin Chamberlain (instructed by the Special Advocates' Support Office in respect of AU) appeared for the Special Advocates.
Hearing dates: 16th July 2008
Jurisdiction
AV and AU were each served with a non-derogating control order on 4 th April 2008. The order was made with the permission of the Court under Section 3(1)(a) of the Prevention of Terrorism Act 2005. In each case, the Court has given directions for a hearing pursuant to Section 3(2)(c) – in AV's case, between 10 th and 14 th November 2008 and in AU's case, between 9 th and 15 th December 2008. Meanwhile, each applied to the Secretary of State to modify certain of the obligations in the order. The Secretary of State agreed to some modifications, but not others. Each appeals under Section 10(3)(b) against her decision to refuse to modify such obligations. Neither AV nor AU asserted that any change in circumstances affecting the control order had occurred when they made their requests for modifications. The issue of principle in each case is whether or not they are entitled to appeal under Section 10(3) without first making that assertion.
Miss Olley, for the Secretary of State, contends that it is a precondition of an appeal under Section 10(3) that the controlled person must first consider that there has been a change of circumstances. Mr Hussain, for AV and AU submits that there is no such precondition. Their submissions require the statutory scheme to be considered.
When the Secretary of State seeks the permission of the Court to make a non-derogating control order under Section 3(1)(a), the Court's options are those set out in subsection 3(2):
“a)…to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed…
c) if it gives permission,…(to)…give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.”
The Court is neither required nor empowered to review the detailed terms of the order. Subsection 3(7) provides that directions given under subsection 3(2)(c) “must include arrangements” for the controlled person to make representations about,
“a) the directions already given; and
b) the making of further directions.”
There is no express statutory prohibition on the controlled person inviting the Court to consider the detailed obligations, but subsection 3(12) suggests that the Court cannot or should not entertain such an application under subsection 3(7), because it provides for the exercise of the power to give directions for the modification of the obligations imposed by a control order, “on a hearing in pursuance of directions under subsection 2(c)”– i.e. the full hearing ordered when permission is given to the Secretary of State to make the order. The statutory scheme under Section 3 is, in my view, clear: the Court's powers at the permission stage are limited to refusing to give permission and, if permission is given, the giving of directions for a full hearing. The controlled person may make representations about directions for that hearing. Only after it has occurred can the Court give directions to the Secretary of State for the modification of obligations. There is no prior opportunity under Section 3 for the controlled person to raise with the Court modifications to the obligations or for the Court to rule upon them.
Section 7 provides:
“(1) If while a non-derogating control order is in force the controlled person considers that there has been a change of circumstances affecting the order, he may make an application to the Secretary of State for—…
b) the modification of an obligation imposed by the order;
and it shall be the duty of the Secretary of State to consider the application.
(2) The Secretary of State may, at any time (whether or not in response to an application by the controlled person)—…
b) relax or remove an obligation imposed by such an order.”
Section 7 does not prohibit the controlled person from applying to the Secretary of State for a modification unless he considers that circumstances have changed. It provides for two situations in which the Secretary of State can consider modifying obligations under a control order: in response to an application by a controlled person, he must consider an application to modify when the controlled person considers that there has been a change of circumstances under subsection 7(1); he may modify the obligations at any time, in response to an application by the controlled person, under subsection 7(2)(b). In either case, the Secretary of State will make a decision, to modify or not.
Subsection 10(3) provides,
“(3) where an application is made by the controlled person to the Secretary of State for—…
b) the modification of an obligation imposed by such an order,
that person may appeal to the Court against any decision by the Secretary of State on the application”
The right of appeal encompasses both the terms of a modification made and a refusal to make a modification. It is not confined by the statutory language only to those cases in which the Secretary of State refuses to make a modification for which the controlled person has applied under Section 7(1). Given the potentially significant effect of the order on the controlled person, express words would, in my view, be required to limit the right of appeal against a decision to refuse to modify to that circumstance only.
Further, the Court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998: subsection 11(2). If the refusal to modify arguably results in a breach of a Convention right, the controlled person is entitled to bring proceedings in the appropriate Court or Tribunal under section 7. Mr Hussain contends, and Miss Olley concedes, that judicial review would, in theory, be available to challenge the Secretary of State's refusal to modify an obligation when no change in circumstances was said to have occurred; but such proceedings would have disadvantages not attendant upon an appeal under subsection (10)(3). The opportunity for the Court to receive closed evidence would be uncertain, yet without it, the Secretary of State's concerns for national security could not be adequately considered. By contrast, all proceedings under the 2005 Act are governed by CPR Part 76 which, read down to accommodate Article 6 rights, provides a fair and adequate means of resolving all questions relating to control orders. If, therefore, the Court is the appropriate Court to deal with claims that Convention rights are infringed by the detailed terms of a control order, and it can do so without doing violence to the statutory language, it should. It can do so under subsection 10(3). It would not need to exercise that power before the full hearing under subsection 3(10), if that hearing occurred soon after the making of the order, but many steps need to be taken before such a hearing can take place, as is illustrated by the timetable in each of these cases. If there is no right of appeal under subsection 10(3), except when the controlled person considers that there has been a change of circumstances, obligations could be imposed for quite long periods which breached the controlled person's Convention rights, in particular, his and his family's rights under Article 8. He would have no opportunity to bring proceedings before the appropriate Court to challenge to imposition of such obligations. There is nothing in the statutory language or any other good reason which prevents the Court from discharging its function under Section 7 of the 1998 Act in such circumstances, before the full hearing.
Subsection 10(5)(b) sets strict limits on the function of the Court on an appeal against a refusal to modify an obligation: it is,
“To determine whether the following decision of the Secretary of State was flawed—…
(b) …his decision that the obligation continues to be necessary for (purposes connected with preventing or restricting involvement by the controlled person in terrorism related activity)…”
The Court's powers are limited to giving directions to the Secretary of State for the modification of the obligations imposed: subsection 10(7)(c). The Court is required to give intense scrutiny for the necessity for each of the obligations imposed, while giving appropriate deference to the decisions taken by the Secretary of State as to the measures necessary to protect the public against the activities of a terrorist suspect: Secretary of State for the Home Department v MB [2007] QB 415 paragraph 64 and 65. Although the Court of Appeal was concerned with a ruling under subsection 3(10), its words in paragraph 65 are apt to include appeals relating to the obligations imposed by a control order under subsection 10(3): “the exercise has something in common with the familiar one of fixing conditions of bail”. Mr Hussain accepts that the task of the Court is as I have stated...
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