Secretary of State for the Home Department v CE
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Lloyd Jones |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] EWHC 3159 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2011 |
| Docket Number | Case No: PTA/4/2011 |
[2011] EWHC 3159 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lloyd Jones
Case No: PTA/4/2011
Mr. Jonathan Moffett and Mr. Rupert Jones (instructed by the Treasury Solicitor) for the Applicant.
Mr. Richard Hermer QC and Mr. Ben Jaffey (instructed by Birnberg Peirce & Partners) for the Respondent.
Mr. Charles Cory-Wright QC and Mr. Zubair Ahmad (instructed by the Special Advocates' Support Office) as Special Advocates for the Respondent.
Hearing dates: 24, 25, 28, 31 October, 1, 3, 4 November 2011
CE is 27 years of age. He is originally from Iran and came to the United Kingdom on 24 th November 1990. He was naturalised as a British citizen on 29 th April 2004. He is married and has two children. In March 2011 his son was aged 4 and his daughter aged 2. Prior to the control order being made CE lived in a flat in West London.
By an application notice dated 3 rd March 2011 the Secretary of State sought permission to make a non-derogating control order against CE under the Prevention of Terrorism Act 2005 ("the Act"). Permission was granted by Collins J. on 4 th March 2011 and the control order was made on that day. It was served with a covering letter on CE on the morning of 5 th March 2011.
Prior to making the control order the Secretary of State consulted the Metropolitan Police, in compliance with section 8(2) of the Act, as to whether there was evidence available that could realistically be used for the purposes of the prosecution of CE for an offence relating to terrorism. The Metropolitan Police, having consulted with the CPS in accordance with section 8(5) of the Act, advised that there was not.
The terms of the control order as originally imposed required CE to reside at his flat in West London, although it referred to the fact that CE would in due course be relocated to a named location outside London ("the new location").
On 7 th March 2011 CE's legal representatives wrote to the Home Office seeking reconsideration of the decision to relocate CE. On the same day they lodged an application in the High Court requesting that the court grant interim relief preventing the Home Office from relocating CE until a full hearing had taken place and a judgment had been handed down on an appeal against relocation. The Home Office declined CE's request and on 8 th March 2011 confirmed that CE would be relocated on 10 th March. On the same day CE appealed pursuant to section 10(3) of the Act against the decision not to modify the residence obligation.
On 10 th March 2011 Keith J. heard CE's application for interim relief and dismissed it. Later that day CE was relocated. Associated modifications were made to the control order obligation. In particular the curfew period was reduced from the period of 14 hours between 6.00 pm and 8.00 am to the period of 12 hours between 7.00 pm and 7.00 am.
Keith J. gave directions in relation to the various procedural steps leading up to the hearing before me, and in relation to an early hearing date to deal with CE's appeal against the refusal to modify the residence obligation. That was due to be heard on 14 th April 2011. However, on 18 th March 2011 CE withdrew his appeal against the refusal to modify the residence obligation and he has continued to reside at the new location.
A disclosure hearing pursuant to CPR Part 76, Rule 29 took place before Silber J. on 6 th July 2011.
Legislative provisions
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".
By virtue of s 15(1) of the Act, in this context "terrorism" has the same meaning as in the Terrorism Act 2000. Section 1 of that Act provides (insofar as is relevant):
"(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 than 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."
A "non-derogating control order" is a control order made by the Secretary of State (sections 2(3) and 15(1)). Section 2 provides for the making of non-derogating control orders by the Secretary of State and s 3 provides for the supervision of such orders by the Court.
Under section 2, the Secretary of State may make a control order against an individual if she:
"(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."
"The public" is defined as "the public in the whole or part of the United Kingdom or the public in another country or territory, or any section of the public" (section 15(1)). "Terrorism-related activity" is defined as follows in section 1(9):
"…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."
The Secretary of State must not make a control order against an individual unless, on an application to the Court, she has been granted permission to do so (section 3(1)). On such an application, the Court may grant permission unless it determines that the Secretary of State's decision that there are grounds to make the control order is obviously flawed (section 3(2)).
Where the Court grants permission to make a control order, it must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made (section 3(2)(c)). Section 3(10) provides for the function of the Court at such a hearing, as follows:
"…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)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."
In MB v Secretary of State for the Home Department [2007] QB 415, para. 46, the Court of Appeal held that, on a section 3(10) hearing, the court should also consider whether the decisions of the Secretary of State in relation to the control order and its obligations are flawed as at the time of the court's determination.
In determining whether the decisions of the Secretary of State were flawed, the Court must apply the principles applicable on an application for judicial review (section 3(11)). In MB, the Court of Appeal gave guidance on the approach that the Court should adopt:
"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 on 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.
61. Somewhat different considerations apply in respect of the second element in 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 from a risk of terrorism, to make the control order. The court is further required to consider his decision on each 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...
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Terrorism Prevention and Investigation Measures: Constitutional Evolution, Not Revolution?
...to the Joint Committee, above n. 139 at 4.152 With regard to forced relocation, see Secretary of State for the Home Department vCE[2011] EWHC 3159 (Admin) [98], Lloyd Jones J: ‘I consider that the case forrelocating CE is compelling. The Secretary of State has reasonable grounds tosuspect t......