Secretary of State for the Home Department v AF (No 2)

JurisdictionEngland & Wales
Judgment Date30 November 2007
Neutral Citation[2007] EWHC 651 (Admin),[2007] EWHC 2001 (Admin),[2007] EWHC 2828 (Admin)
Docket NumberCase No: PTA/33/2006,Case Nos: PTA 33/2006 & PTA 4/2007
CourtQueen's Bench Division (Administrative Court)
Date30 November 2007

[2007] EWHC 2828 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before:

Mr Justice Stanley Burnton

Case Nos: PTA 33/2006 & PTA 4/2007

Between
Secretary of State for the Home Department
Applicant
and
AF
Respondent

Tim Eicke and Kate Grange (instructed by the Treasury Solicitor) for the Applicant

Tim Otty QC and Zubair Ahmad (instructed by Middleweeks) for the Respondent

Jeremy Johnson as Special Advocate instructed by the Special Advocates' Support Office

Hearing date: 21 November 2007

Judgement

Stanley Burnton J:

Introduction

1

These proceedings raise issues of importance in relation to hearings under sections 3(10) and 10(4) of the Prevention of Terrorism Act 2005 ("the PTA"), namely:

(a) whether a judge who decides issues arising on a hearing under section 3(10) of the Act adversely to the respondent (or to the Home Secretary) is disqualified from adjudicating in subsequent proceedings under the Act to which the respondent is a party; and

(b) the status of findings made by a judge as a result of a hearing under section 3(10) of the Act in subsequent proceedings under the Act between the same parties.

The factual background

2

The Respondent, AF, has been the subject of 3 non-derogating control orders, referred to using the case numbers of the various proceedings relating to them under section 3 of the PTA, namely PTA/6/2006, PTA/33/2006 and PTA/ 4/2007. PTA/6/2006 was imposed on 24 May 2006 and revoked on 11 September 2006. On the same date as that revocation, PTA/33/2006 was imposed on him. Following the hearing under section 3(10) of the Act, on 30 March 2007 Ouseley J quashed PTA/33/2006 on the ground that, as he found, the restrictions it imposed cumulatively amounted to a deprivation of liberty within the meaning of article 5(1) of the European Convention on Human Rights. His judgment is at [2007] EWHC 651 (Admin). In anticipation of the judgment of Ouseley J, control order PTA/ 4/2007 was made on 29 March 2007 and served the following day.

3

In his judgment, [2007] EWHC 651 (Admin), Ouseley J also held:

(a) there were reasonable grounds for suspecting that AF was or had been involved in terrorism-related activity;

(b) that he was satisfied that a Control Order was necessary in view of the potential harm to the public if AF engaged in terrorist related activity, and in view of his willingness and ability to do so;

(c) that if he had concluded that the control order was no more than a restriction of movement, he would have regarded the general run of restrictions as necessary, but would have examined the detail and balance; and

(d) that he did not regard the process under the PTA as one in which AF had been without a substantial and sufficient measure of procedural protection.

4

Ouseley J's decision was appealed direct to the House of Lords under the "leap-frog" procedure under section 12(3)(b) of the Administration of Justice Act 1969. The House gave judgment on 31 October 2007 in AF's and other cases, reported as [2007] UKHL 45, [2007] UKHL 46 and [2007] UKHL 47. The House reversed Ouseley J's decision on the issue whether control order PTA/33/2006 deprived AF of his liberty, and remitted his case to the Administrative Court for it to reconsider in accordance with the guidance contained in the opinions of the majority whether AF had been provided with a sufficient measure of procedural protection so as to comply with his rights under Article 6 of the European Convention on Human Rights.

5

The procedural situation before me is unusual, if not unique. The hearing was formally listed as a hearing for directions for the substantive hearing required under section 3 of the PTA in relation to PTA/ 4/2007. However, as a result of the decision of the House of Lords, PTA/33/2006 was retrospectively provisionally revived until its expiry on 10 September 2007, and the issue remitted by the House of Lords must be decided. It was therefore appropriate to give directions for the determination of that issue also. The revival of PTA/33/2006 is provisional because if it is decided, in the light of their Lordships' opinions, that AF has not received a sufficient measure of procedural protection, or if the evidence before the Court applying the procedure prescribed by them does not justify the findings sought by the Home Secretary, it will again be quashed.

The contentions of the parties

6

Mr Otty QC, for AF, submitted that Ouseley J should be recused from hearing the section 3(10) proceedings in relation to PTA/ 4/2007. While not suggesting that the judge was in any way personally biased or prejudiced, Mr Otty contended that he is disqualified because a fair-minded and informed observer might entertain a reasonable apprehension of bias by reason of his prejudgment. This risk, it was submitted, is particularly acute in a context such as the present where the Court is effectively precluded from stating its full reasons for particular conclusions in an open judgment. The Respondent is therefore unable to assess the fairness of the judge's consideration and findings on the closed material before him. The Court will, in PTA/ 4/2007, be considering the same central issues of reasonable suspicion and necessity as were in issue in PTA/33/2006. In doing so it will be considering the evidence of at least one of the witnesses whose credibility Ouseley J has already broadly endorsed. The Court will also, presumably, be considering very similar or identical written evidence. By virtue of the terms of the 2005 Act neither AF nor the "reasonable observer" is able to understand any aspect of the Court's reasoning on either reasonable suspicion or necessity in PTA/33/2006. The liberty of AF will be substantially affected by the result of these proceedings; they are akin to criminal proceedings; those facts, and the particular importance of decisions in this area commanding public confidence, make it particularly important that there should be no appearance of pre-judgment bias. The opinions in the House of Lords do not indicate that the remitted issue should be determined by a judge other than Ouseley J, but they heard no argument on the present issue.

7

Mr Eicke, for the Home Secretary, submitted that PTA/33/2006 continues in force and should be treated as modified by PTA/ 4/2007 and subsequent modifications to that order. In addition, citing and relying on the guidance given by the IAT in its starred determination in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1, as approved by the Court of Appeal in LD (Algeria) v Secretary of State for the Home Department [2004] EWCA Civ 804 (in relation to cases where, as here, the parties are identical), and AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 1040, he submitted that the findings of Ouseley J in PTA/33/2006 are to be treated as "the starting point" for the consideration of the issues raised in PTA/ 4/2007, irrespective of the identity of the judge, and therefore no question of unfair or illegitimate pre-judgment arises. The proceedings have been held by the House of Lords to be civil; these are public law proceedings to which the principle applied in the cases he cited are applicable. Mr Eicke pointed out the practical difficulties that could arise whenever there was a remission by the Court of Appeal or the House of Lords, or whenever a new control order is imposed, for example when a control order is revoked or not renewed because the Secretary of State considers it is no longer required, but then new information leads her to decide that a new control order is required.

8

Mr Johnson, the Special Advocate, quite properly made no submissions on the issue of recusal.

9

In reply, Mr Otty submitted that the terms of the PTA require the Court to give fresh consideration of the issues arising in connection with PTA/ 4/2007 unaffected by the findings of Ouseley J in PTA/33/2006. He distinguished the authorities cited by Mr Eicke as relating to different legislative provisions and different procedures, and as explicable by the volume of immigration cases with which the IAT and the Courts have to deal. Lastly, he submitted that the appropriate judge to determine whether he was disqualified was, at least in the first place, Ouseley J himself.

Discussion

10

In my judgment, the question of recusal must be considered with the issue as to the status of the findings made by a judge on a hearing under section 3(10). If those findings, in so far as they are not overturned on appeal, are binding on the respondent, or at least the "starting point" for the consideration of the issues in further proceedings, there is no basis for recusal on the basis of objective prejudgment, since a different judge would equally be bound by the earlier findings.

11

PTA/ 4/2007 cannot be considered as a modification of PTA/33/2006. It is a different control order. Section 7 of the Act contains provision for modifying control orders, but they have not been implemented, and could not be implemented, in order to convert PTA/33/2006 into PTA/4/2007.

12

I have no doubt that Parliament did not envisage that a respondent might be simultaneously subject to two control orders, as in theory at least AF was until the expiry of PTA/33/2006, but the reversal of Ouseley J's decision has that provisional effect. I say provisional, because the Court may decide, applying the guidance of the House of Lords, that AF was not afforded a substantial and sufficient measure of procedural protection, or that evidence that was accepted as closed should be disclosed to him, or that...

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