Bm v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas,Lord Justice Hooper,Lord Justice Sedley |
| Judgment Date | 05 April 2011 |
| Neutral Citation | [2011] EWCA Civ 366 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 April 2011 |
| Docket Number | Case No: T1/2010/0553 |
[2011] EWCA Civ 366
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
SAUNDERS J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sedley
Lord Justice Thomas
and
Lord Justice Hooper
Case No: T1/2010/0553
Ms Dinah Rose QC (who did not appear below) & Mr Dan Squires (instructed by Birnberg Peirce & Partners) for the Appellant
Mr Tim Eicke (instructed by Treasury Solicitors) for the Respondent
Hearing date: 11 March 2011
The appellant (BM), a 38 year old British national born in Sheffield and his brothers A and B were designated in August 2007 under the Terrorism (United Nations Measures) Order 2006 on the basis there were reasonable grounds to suspect that they were "persons who commit, attempt to commit, participate in or facilitate the commission of acts of terrorism". Designation under that Terrorism Order had the effect of subjecting them to very substantial controls over their finances. All three were re-designated in 2008.
On 30 April 2009, the respondent (the Home Secretary) applied to Ouseley J under s.3 of the Prevention of Terrorism Act 2005 (the Act) to make a non-derogating control order in relation to BM. s.2(1) specifies the conditions that have to be satisfied before such an order can be made:
"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."
Permission was granted and the order was made by the Home Secretary. It was served on BM on 1 May 2009.
As soon as permission was granted the court had to give directions for a hearing at which the function of the court is, under s.3(10) and (11) to:
"(10) … 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 –
….
(b) the matters mentioned in subsection (10),
the court must apply the principles applicable on an application for judicial review."
If the court determines that the decision is flawed, then by s.3(12), its only powers are to quash the order, quash one or more of the obligations imposed by the order or to give directions to the Secretary of State to revoke the order or to modify the obligations imposed by the order.
The hearing did not take place until 26 January 2010. The delay appears to have been caused by an unsuccessful attempt by the Home Secretary to modify the control order by requiring BM to live in Leicester and by the process of discovery which had to comply with the provisions of Part 76 and the requirements set out in Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28. Evidence was heard by the judge, including evidence from Ms Hadland (a Home Office official). The judge concluded that the order and its conditions should be upheld.
During the course of closing submissions in the hearing on 1 February 2010 the Home Secretary made a further modification to the order requiring BM to relocate to Bristol. I will return to consider that modification and how it was dealt with by the judge at paragraph 30 below.
It is a criminal offence under s.9 of the Act to contravene, without reasonable excuse, an obligation imposed by a control order. Criminal proceedings have been brought against BM for contravention of the control order; these were adjourned pending this appeal on the validity of the control order.
Permission to appeal was initially refused but granted on an oral application by Maurice Kay LJ. Over one year after the judgment was handed down on 16 February 2010, the matter came on for hearing in this court.
The challenge that is made by Ms Dinah Rose QC, on behalf of BM, is that the judge failed to approach the issues under s.3(10) in accordance with its provisions and with the decision of the Court of Appeal in SSHD v MB [2006] EWCA Civ 1140, [2007] QB 415.
The points of time at which the Home Secretary's decision has to be reviewed by the court for the purpose of determining whether it is flawed.
It is, as Ms Rose QC submitted and as was accepted by Mr Eicke on behalf of the Home Secretary in the course of the hearing, clear that on the plain and ordinary reading of s.3(10) the task of the court is to determine whether the decision of the Home Secretary to make a control order was flawed at the time the control order was made. The court has to review the evidence before the Home Secretary at the time the control order was made and the reasons given by her. Thus, for example, if on a review of the evidence put before the court it was clear that the evidence before the Home Secretary at the time of the making of the control order and the reasons relied upon by her did not amount to reasonable grounds for suspecting that an individual had been involved in terrorism related activity, the court would be bound to set aside the decision. That would be so even if by the time of the hearing the Home Secretary had obtained new evidence which would give her good reasons for making an order, and which a court concluded would give her reasonable grounds for suspecting that the individual had been involved in terrorism related activity. In short, the validity of the order has, in the first instance, to be considered by reference to the evidence before the Home Secretary and her reasons at the time the control order was made. The importance of that is obvious because, as I have set out above, under s.9 of the Act it is a criminal offence to contravene an obligation imposed by a control order. If the decision was flawed when made, Parliament could not have contemplated that subsequent events could be used to validate a flawed decision and thereby secure the conviction of a person who had contravened the order without reasonable excuse, when at the time the order was made it was not validly made.
Although the plain wording of the Act requires the court to determine whether the decision is flawed at the time the control order was made, this court in MB determined that because of the requirement of the Convention, s.3(10) of the Act could not be read so as to restrict the court when addressing a human rights issue to consideration of whether the Home Secretary had reasonable grounds for so doing solely at the time the control order was made. The court concluded that it was the duty of the Home Secretary to keep the decision to impose a control order under review; that a purposive approach to s.3(10) required the court also to determine whether the continuing decision of the Home Secretary to keep the order in force was flawed. The court concluded at paragraph 46:
"For these reasons we consider that section 3(1) 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."
It is therefore clear that in determining whether a decision is flawed a court must carry out a two stage examination; it must first determine whether the decision was flawed at the time the control order was made and must, if it was not flawed, then determine whether the continuing decision to maintain the control order is flawed as at the time of the court's determination.
The decision of the judge: consideration of the position at the time of the court's determination
In his judgment, Saunders J recorded at paragraph 6 that it was accepted before him that he had to consider whether the decision of the Home Secretary was flawed as at the time of the court's determination. He referred to paragraph 46 of the judgment in MB. It is not clear to me how what is now accepted to be an error came to be treated as common ground before the judge.
The judge then reviewed the extensive evidence against BM at paragraphs 10–40 of his judgment. The evidence related to matters primarily in 2001 to 2004 and what the judge considered was supporting evidence of continued activity up to and including events immediately prior to the making of the Terrorism Order in August 2007. He concluded at paragraph 41 that the Home Secretary had reasonable grounds for suspecting that BM had been involved in terrorism related activity; he listed the specific matters which included explosives training in the Kashmir area, being in contact in Pakistan with a senior Al Qaeda leader, being concerned in the transfer of funds to Pakistan to be used for terrorist purposes, providing equipment to facilitate terrorist activity in Pakistan, leading a group in Ilford involved in promoting terrorism with his brothers A and B, travelling to Pakistan on a number of occasions on trips which at least in part were connected with terrorist activity and expressing an interest in being involved in fighting in Afghanistan.
The judge then turned to consider whether the making of the control order was necessary for the purpose of protecting members of the public from a risk of terrorism. His conclusion at paragraphs 43 to 45 of his judgment was:
"43. [BM] argues that a Control Order is not necessary because the matters relied on are historical and the evidence does not support the inference that he presently has any intention of involving himself in terrorist activity, and also, as the matters relied on by the [Home Secretary]...
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