CF v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Lloyd Jones,Mr Justice Wilkie
Judgment Date12 April 2013
Neutral Citation[2012] EWHC 2837 (Admin),[2013] EWHC 843 (Admin)
Docket NumberCase No: PTA/01/2011 PTA/03/2012 PTA/20/2011 PTA/14/2012,PTA/1/2011, PTA/10/2011 PTA/14/2012,Case No: PTA/01/2013
CourtQueen's Bench Division (Administrative Court)
Date12 April 2013
Between:
Secretary of State for the Home Department
Applicant
and
CC and CF
Respondents

[2012] EWHC 2837 (Admin)

Before:

Lord Justice Lloyd Jones

Case No: PTA/01/2011

PTA/10/2011

PTA/03/2012

PTA/20/2011

PTA/14/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

James Eadie QC, Andrew O'Connor and Louise Jones (instructed by the Treasury Solicitor) for the Applicant

Timothy Otty QC and Dan Squires (instructed by Birnberg Peirce) for CC

Danny Friedman and Tom Hickman (instructed by Irvine Thanvi Natas) for CF

Hugo Keith QC, Zubair Ahmad and Shaheen Rahman (instructed by the Special Advocates' Support Office) as Special Advocates for CC and CF

Hearing dates: 9 th, 10 th, 16 th–20 th, 24 th–26 th July 2012.

Lord Justice Lloyd Jones

I. INTRODUCTION.

1

This is the open judgment in the five sets of proceedings before the court. Those proceedings may be summarised as follows:

(1) The statutory review, pursuant to section 3(10) of the Prevention of Terrorism Act 2005 ("the PTA") of the control order made by the Secretary of State for the Home Department ("SSHD") on 13 th January 2011 and served on CC on 14 th March 2011 (PTA/1/2011).

(2) The statutory review, pursuant to section 3(10) of the PTA of the control order made by the SSHD on 15 th April 2011 and served on CF on 11 th May 2011 (PTA/10/2011).

(3) The statutory review, pursuant to section 9 of the Terrorism Prevention and Investigation Measures Act 2011 ("the TPIM Act") of the terrorism prevention and investigation measures notice ("TPIM notice") signed by the SSHD on 16 th January 2012 and served on CC on 21 st February 2012 (PTA/03/2012).

(4) The statutory review, pursuant to section 9 of the TPIM Act of the TPIM notice signed by the SSHD on 19 th December 2011 and served on CF on 3 January 2012 (PTA/20/2011).

(5) CC's appeal, brought pursuant to section 16(3) of the TPIM Act, against the Secretary of State's refusal of his request made under section 12(2) of the Act to vary certain measures specified by his TPIM notice (PTA/14/2012).

Legislative provisions

2

Section 1(1) of the PTA defines a "control order" as:

"an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism".

3

Section 2(2) of the TPIM Act defines "terrorism prevention and investigation measures" as requirements, restrictions and other provisions which may be made in relation to an individual by virtue of Schedule 1 of that Act.

4

By virtue of both section 15(1) of the PTA, and section 30 (1) of the TPIM Act, "terrorism" has the same meaning as in the Terrorism Act 2000 which provides, at section 1 (in relevant part):

"(1) In this Act 'terrorism' means the use or threat of action where —

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2) Action falls within this subsection if it —

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section —

(a) 'action' includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other then the United Kingdom and

(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom."

5

Section 1(9) of the PTA and section 4(1) of the TPIM Act both define "terrorism- related activity" as follows:

"…involvement in terrorism-related activity is any one or more of the following —

(a) the commission, preparation or instigation of acts of terrorism;

(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;

(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;

(d) conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c);

and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."

6

Under section 2(1) of the PTA, the Secretary of State:—

"… may make a [non-derogating] 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."

7

Section 1(3) of the PTA empowers the Secretary of State to impose under such a control order:—

"…any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity."

8

By section 2(1) of the TPIM Act, the Secretary of State may impose specified terrorism prevention and investigation measures on an individual if conditions A to E are met. Those conditions are set out at sections 3(1)–(6):

"(1) Condition A is that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity (the "relevant activity").

(2) Condition B is that some or all of the relevant activity is new terrorism-related activity.

(3) Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.

(4) Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual's involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.

(5) Condition E is that —

(a) The court gives the Secretary of State permission under section 6, or

(b) The Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission.

(6) In this section "new terrorism-related activity" means —

(a) If no TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring at any time (whether before or after the coming into force of this Act);

(b) If only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force; or

(c) If two or more TPIM notices relating to the individual have been in force, terrorism-related activity occurring after such a notice came into force most recently."

9

Section 8 of the PTA and section 10 of the TPIM Act place certain requirements as to consultation and review on the Secretary of State before making a control order or TPIM notice respectively, and on the chief officer of the relevant police force after the control order or TPIM notice has been made.

10

The powers of the Secretary of State to impose obligations under a TPIM notice differ significantly from the corresponding powers under a control order. In particular, there is no power under a TPIM notice to require relocation.

The function of the court on a review

11

Section 3(10) of the PTA sets out the function of this court in considering the substance of the control order as follows:—

"(10) On a hearing in pursuance of directions under subsection 2 (c)…, the function of the court is to 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."

12

In the case of both control orders and TPIMs the court is required to review the decisions of the Secretary of State that the relevant conditions were met and continue to be met. Accordingly, the court must consider the matter both at the date of making the orders and at the date of the hearing. ( MB v Secretary of State for the Home Department [2007] QB 415; TPIM Act 2011, section 9(1).)

13

Proceedings under section 3(10) of the PTA are civil proceedings. In Secretary of State for the Home Department v. MB [2007] QB 415 at paragraph 53 the Court of Appeal stated that:

"It is implicit in the scheme that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order."

The same is true of TPIM notices.

14

With regard to the court's function of review of a control order, in MB the...

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