BX v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Lord Justice Maurice Kay,Master of the Rolls |
| Judgment Date | 04 May 2010 |
| Neutral Citation | [2010] EWCA Civ 481 |
| Docket Number | Case No: T3/2009/2617 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 May 2010 |
[2010] EWCA Civ 481
The Hon Mr Justice Collins
Before: Master of the Rolls
Lord Justice Maurice Kay
Lord Justice Pitchford
Case No: T3/2009/2617
CO/13467/2009
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Michael Fordham QC and Stephanie Harrison (instructed by Birnberg Peirce and Partners) for the Appellant
Tim Eicke (instructed by Treasury Solicitor) for the Respondent
Hearing date: 24 March 2010
Lord Justice Pitchford:
This is an appeal from the order of Collins J dated 12 November 2009 declining to grant an application for an oral hearing and interim injunctive relief in judicial review proceedings. An order for the anonymity of the appellant was made in the High Court under CPR rule 76.19 and that anonymity will continue. The appellant will be referred to as BX. Although events have overtaken the notice of appeal and BX seeks no specific order from the court, the appeal raises issues both of principle and practice in relation to the modification of a non-derogating control order made under section 7 of the Prevention of Terrorism Act (“PTA”) 2005. In summary the questions this court is invited to resolve are:
(1) whether a “controlled person” to whom the Secretary of State has given notice of modification under section 7(2)(d) and (8)(c) PTA 2005, may seek to challenge or reverse its implementation in an interlocutory application for an injunction, either in the course of judicial review proceedings or in the course of an appeal against the modification under section 10 of the Act; and
(2) whether, and if so to what extent, the procedural safeguards of Article 6 ECHR apply to judicial consideration of the interlocutory application.
Non-Derogating Control Orders
By section 1(1) and 1(2) PTA 2005 the Secretary of State may make a “non-derogating” control order against an individual which “imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism” provided that it does not impose obligations that “are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention”.
The Secretary of State may make such a control order if (section 2(1)) 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 the individual.”
The obligations which may be imposed are, by section 1(3), those which the Secretary of State considers “necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity”. They may include under section 1(4):
“…(e) a restriction in respect of his place of residence…;
…(g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom…”,
and, under section 1(5), “in particular…a requirement on him to remain at or within a particular place or area…”
Supervision by the Court
By section 3(1), the Secretary of State may (a) make a control order with the permission of the court, or (b) certify that the order is required so urgently that it is made without permission. When, as in BX's case, an application for permission is made to the court (which may, by section 3(4), be made at a without notice hearing) “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” and if the court gives permission it “must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made” (section 3(2)(a) and(c)). Section 3(7) and (7A) requires that the controlled person is given the opportunity to make representations about directions already made and further directions sought, within 7 days after notice of the control order has been delivered to him under section 7(8). At the inter partes hearing directed under section 3(2)(c) the function of the court is, under section 3(10), to determine whether the Secretary of State's decision under section 2(1) is flawed. When deciding whether a decision of the Secretary of State is flawed (subsection (3)) or obviously flawed (subsection (2)) the court must act according to judicial review principles (section 3(11)). The court may, having made its determination at the section 3(10) hearing, (a) quash the order, (b) quash one or more of its obligations, or (c) give directions that the order be revoked or modified, and in every other case order that the control order shall continue in force (section 3(12) and (13)).
Modification by the Secretary of State
Section 7 makes provision for the modification of a control order on the application of the controlled person, or by the Secretary of State with or without the controlled person's consent. By section 7(2) the Secretary of State may:
“…(d) make to the obligations imposed by such an order any modifications which he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.”
but may not make any modification whose effect would be to impose a “derogating obligation” (section 7(3)).
Appeals
Section 10 makes provision for appeals. Section 10(1) gives to the controlled person the right to appeal against (a) the renewal of a non-derogating control order or (b) the modification of an obligation imposed without the consent of the controlled person. Section 10(5)-(8) provides:
“(5) The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order (whether on a renewal or otherwise), or on an appeal against a decision not to modify such an obligation, is to determine whether the following decision of the Secretary of State was flawed—
(a) in the case of an appeal against a modification, his decision that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity; and
(b) in the case of an appeal against a decision on an application for the modification of an obligation, his decision that the obligation continues to be necessary for that purpose.
(6) In determining the matters mentioned in subsections (4) and (5) the court must apply the principles applicable on an application for judicial review.
(7) If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are—
(a) power to quash the renewal of 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.
(8) In every other case, the court must dismiss the appeal.”
Jurisdiction
Section 11 states in its material parts:
“(1) Control order decisions and derogation matters are not to be questioned in any legal proceedings other than—
(a) proceedings in the court; or
(b) proceedings on appeal from such proceedings.
(2) The court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to proceedings all or any part of which call a control order decision or derogation matter into question.
(3) No appeal shall lie from any determination of the court in control order proceedings, except on a question of law.
(4) ….
(5) The Schedule to this Act (which makes provision relating to and for the purposes of control order proceedings and proceedings on appeal from such proceedings) has effect.
(6) In this Act “control order proceedings” means-
…..
(g) proceedings on an appeal under section 10;
(h) proceedings in the court by virtue of subsection (2);…
(7) In this section “control order decision” means—
(a) a decision made by the Secretary of State in exercise or performance of any power or duty of his under any of sections 1 to 8 or for the purposes of or in connection with the exercise or performance of any such power or duty;
(b) a decision by any other person to give a direction, consent or approval, or to issue a demand, for the purposes of any obligation imposed by a control order; or
(c) a decision by any person that is made for the purposes of or in connection with the exercise of his power to give such a direction, consent or approval or to issue such a demand.
(8) …”
“Court” is defined in section 15(1) PTA 2005, in the case of a controlled person whose principal place of residence is in England and Wales, as the High Court.
CPR Part 76
Part 76, rules 1–34, made under powers conferred by the Schedule to the 2005 Act, paragraph 4, relate to proceedings taken under the Act. Part 76 contains provisions in Part III for permission applications and appeals to the High Court relating to non-derogating control orders, in Part IV for appeals to the Court of Appeal and, generally, in Part V for the handling of “closed material”, the conduct of closed and open hearings, and the appointment of a special advocate to assist the controlled person and the court in closed hearings.
There is no requirement upon the Secretary of State either under the PTA 2005 or Part 76 to provide the controlled person with any particular notice of implementation of a...
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