Re Am
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 21 December 2009 |
| Neutral Citation | [2009] EWHC 3053 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/7/2007 PTA/35/2008 |
| Date | 21 December 2009 |
[2009] EWHC 3053 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Before: Mr Justice Wilkie
Case No: PTA/7/2007
PTA/34/2008
PTA/35/2008
Lisa Giovannetti and Kate Grange (instructed by Treasury Solicitors) for the Claimant
Timothy Otty QC and Tom Hickman (instructed by Messrs Arani & Co. Solicitors) for the Defendant
Mohammed Khamisa QC and Shaheen Rahman as Special Advocates for the Defendant
Hearing dates: 20 – 31 July 2009
Mr Justice Wilkie:
Introduction:
1. These proceedings constitute a review pursuant to section 3(10) of the Prevention of Terrorism Act 2005 (“PTA”) of a control order first imposed on AM on 21 st June 2007 and renewed by the Secretary of State (SSHD) in June 2008 and again in June 2009.
2. This is the first occasion on which there has been a full review of AM's control order pursuant to section 3(10). The obligations imposed on AM have, however, been the subject of two modification appeals heard by Collins J, in September 2008 and Keith J, in February 2009. In the latter case, permission to appeal to the Court of Appeal has been granted to AM but the hearing of that appeal has been postponed pending the outcome of this review.
The legislative scheme of the PTA:
3. The preamble to the PTA states that it is:
“An act to provide for the making against individuals involved in terrorism related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity…”.
4. 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”.
5. “Terrorism” is stated by section 15(1) of PTA to have the same meaning as in the Terrorism Act 2000. Sections 1(1) to (5) of the 2000 Act sets out a comprehensive definition of terrorism. There is no dispute but that if the contentions relied upon by SSHD are well founded they amount to terrorism.
6. Section 1(2) of the PTA provides:
“The power to make a control order against an individual shall be exercisable -
a) Except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention by the Secretary of State”.
Accordingly, an order made by the SSHD is a “non derogating” control order (see section 2(3) of the PTA.
7. By Section 2(1) of the PTA, the SSHD:
“…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.”
8. Section 2(4) provides:
“A non derogating control order -
a) has effect for a period of twelve months beginning with the day on which it is made; but
b) may be renewed on one or more occasions in accordance with this section”.
9. Section 2(5) provides:
“A non derogating control order must specify when the period for which it is to have effect will end”.
10. Section 2 (6) of the PTA provides:
“The Secretary of State may renew a non derogating control order (with or without modifications) for a period of twelve months if he -
a) considers that it is necessary for the purposes connected with protecting members of the public from a risk of terrorism for an order imposing obligations on the controlled person to continue in force; and
b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism related activity.”
11. A renewed non derogating controlled order runs for twelve months beginning from the earlier of the time when the order would otherwise have ceased to have effect, or the beginning of the seventh day after the date of renewal (see section 2(7)).
12. Section 3 of the PTA provides for supervision by the court of the making of non derogating control orders. Section 3(1) provides that:
“The Secretary of State must not make a non derogating control order against an individual except where –
a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order, and has been granted that permission;
b) The order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission.”
2. Where the Secretary of State makes an application for permission to make a non derogating control order against an individual, the application must set out the order for which he seeks permission and –
a) 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;
b) The court may give that permission unless it determines that the decision is obviously flawed; and
c) If it gives permission the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.”
13. Section 3(10) of the PTA provides:
“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.”
14. Section 3(11) provides:
“In determining –
a) what constitutes a flawed decision for the purposes of subsection (2)… or
(b) the matters mentioned in subsection (10),
The court must apply the principles applicable on an application for judicial review.”
15. subsection (12) provides:
“If the court determines on a hearing in pursuance of directions under subsection (2) (c)… that a decision of the Secretary of State was flawed its only powers are –
a) the power to quash the order
b) the power to quash one or more obligations imposed by the order and
c) The power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.”
16. Subsection (13) provides –
“In every other case the court must decide that the control order is to continue in force.”
17. Although section 3 (11) requires the court to apply the principles applicable on an application of judicial review, what this means in practice has been explained by the court of appeal (in SSHD v MB, (2007) QB 415, (2006) EWCA Civ 1140). The matter is dealt with at paragraphs 41–46 of the judgment of the court given by Lord Phillips of Worth Matravers CJ (as he then was), and in particular:
“44…a purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed…
46. For these reasons we consider that section 3(10) can and should be “read down on” 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”.
18. At paragraphs 60 – 65:
“60. Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the acts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism related activity. Thus far we accept Mr Starmer's submission as to the standard of the review that must be carried out by the court.
61. Somewhat different considerations apply in respect of the second element of the Secretary of State's decision. Section 3(10) requires the court to review the decision of the Secretary of State that it was necessary, for purposes connected with protecting the public form a risk of terrorism, to make the control order. The court is further required to consider his decision on each one of the obligations.
…
63. Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism related activity. The obligations that it is necessary to impose may depend on the nature of the involvement in terrorism related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands of the resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance.
64. The Secretary of state is better placed than the court to decide the measures that are necessary to protect the public against the activities terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to record such difference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see...
To continue reading
Request your trial
-
AM v Secretary of State for the Home Department
...Civ 710 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Mr Justice Wilkie [2009] EWHC 3053 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Laws Lord Justice Jackson and Lord Justice Tomlinson Case No: T1/2010/0491 ......
-
The impact of Schedule 7 of the Counter‐Terrorism Act 2008 on banks and their customers
...are not). See Council of Civil Service Unions (CCSU) v. Minister for the CivilService [1985] AC 374.67. (1997) AC 286, 298.68. [2009] EWHC 3053 (Admin), para. 20.69. [2010] EWHC 1332 (QB) para. 11.70. [2010] EWHC 1332 (QB) para. 12.71. Associated Picture Houses Ltd v. Wednesbury Corporation......
-
Disclosure of Foreign Intelligence Material: CPIA, Norwich Pharmacal and the War on Terror
...Sched. 1 to theTerrorism Act 2005 and Sched. 7 to the Counter-Terrorism Act 2008: Secretary of State for the HomeDepartment vAM [2009] EWHC 3053 (Admin). See also Bank Mellat vHM Treasury [2010] EWCA Civ483. Other examples cited by the court included certain hearings under the Parole Board ......
-
Subject Index
...of State for Defence v GuardianNewspapers Ltd[1985] AC 339 . . . . . . . . . .351Secretary of State for the Home Department vAM [2009]EWHC 3053 (Admin) . . . . . . . . . 355Secretary of State for the Home Department vRehman [2001] UKHL 47, [2003] 1 AC 153. . . . . . . . . . . . . . . . . . ......
-
Closed Trials and Secret Allegations
...relied upon. If an applicant is not provided with these details, the52. Ibid. at 42.53. Ibid. at 43.54. [2011] EWCA Civ 710.55. [2009] EWHC 3053 (Admin) at 162.56. Ibid. at 51.57. Ibid. at 163.58. Ibid.59. See text accompanying notes 28–31.Kelman closed material will have been relied upon t......