Secretary of State for the Home Department v Al
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 21 July 2016 |
| Neutral Citation | [2016] EWHC 1845 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/42/2006 |
| Date | 21 July 2016 |
[2016] EWHC 1845 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: PTA/42/2006
Mr Tim Eicke, QC andMr Steven Gray (instructed by the Government Legal Department) for the Applicant
Mr Hugh Southey, QC andMr Barnabas Lams (instructed by Arani & Co) for the Respondent
Mr Jeremy Johnson, QC andMr Zubair Ahmad (instructed by the Special Advocates' Support Office) as Special Advocates
Hearing dates: 17 th– 19 th May 2016
Approved Judgment
This case concerns a control order which was imposed on AL on 28 December 2006. It was renewed on 5 December 2007. It was revoked on 20 February 2008 because AL was then serving a sentence of 4 years imprisonment for offences of aggravated burglary, criminal damage and robbery for which he had been arrested on 6 July 2007 and been in custody ever since. The order was imposed pursuant to the Prevention of Terrorism Act 2005. Section 3 of the Act required permission to be obtained from the court before a control order could be put into effect and that permission was granted by me. Section 3(2)(c) required that directions be given for a hearing in relation to the order 'as soon as reasonably practicable after it is made'. Section 3(10) required the court in such a hearing to determine whether the making of the order or any obligation contained in it was flawed. The order could only be made if, as section 2(1) of the Act provided, the applicant:-
"(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The 2008 Act was repealed by the Terrorism Prevention and Investigation Measures Act 2011 (the TPIM Act) on 15 December 2011. Thus not only is this application to be dealt with long after the order was revoked but equally many years after the 2005 Act was repealed. Schedule 8 of the TPIM Act provides by paragraph 3(1) that the repeal of the 2005 Act does not 'prevent or otherwise affect' the holding of any hearing in relation to the imposition of a control order. But the power of the court is limited by paragraph 3(2) to determining whether the control order or any renewal of it or any obligation in it should be quashed. It is obvious that the power to direct revocation cannot be available when no order continues to exist.
The respondent did not appeal against the renewal of the order and so I am only concerned to decide whether the order should be quashed because the making of it was flawed. A hearing pursuant to section 3 of the 2005 Act came before Ouseley J in July 2007. On 17 August 2007 he gave judgment upholding the lawfulness of the order. His judgment was reached before the House of Lords decided in SSHD v. AF (No 3) [2010] 2 AC 269 the extent of disclosure that had to be given to a controlee to ensure that he had a hearing which complied with the requirements of Article 6 of the ECHR. The House of Lords decided that further disclosure beyond that which the Court of Appeal had regarded as sufficient was needed. The respondent had lodged a notice of appeal against Ouseley J's judgment on 12 December 2007. This was based on the contention that the hearing had breached Article 6. It was not until 11 May 2010 that Maurice Kay LJ granted leave to appeal. On 8 July 2010 the appeal was allowed by consent without consideration of the merits and the case was remitted to this court to redetermine the issue. It is to say the least unfortunate that it has taken nearly 6 years for this redetermination to take place.
As it happens, I had to deal with a similar case SSHD v. GG [2016] EWHC 1130 (QB) in which attacks on a control order which had been revoked in 2010 were being pursued. That case had been remitted by the Court of Appeal on the same basis as this case, namely because the original decision upholding the order had been made before the disclosure requirements imposed by AF (No 3) had been established. I thus had to consider how I should approach the previous judgment. I dealt with this in paragraphs 12 and 13 of GG. Since the respondent has not had knowledge of all relevant material, the guidelines set out in Devaseelan v. SSHD [2008] Imm AR 241 do not apply. Thus what I must do is to reconsider the findings made by Ouseley J in the light of any further evidence resulting from the additional disclosure which has now been made and which is accepted to have been compliant with the law as set out in AF (No 3). The respondent has served three additional statements and has given evidence in support of them. He did not give evidence before Ouseley J. I should only add that, as Mr Eicke accepted, I should not vary any findings made by Ouseley J which were favourable to the respondent.
The 2005 Act followed in this respect by the TPIM Act requires the court to 'apply the principles applicable on an application for judicial review' in determining whether a decision was flawed (s.3(11)). How this should be applied was considered by a strong court of appeal in SSHD v. MB [2007] QB 415. Since convention rights were involved, it was necessary for the court to have regard to facts as they were at the time the court made its order. As Lord Phillips CJ, giving the court's judgment said at paragraph 40:-
"Section 3(10) of the [2005 Act] cannot be read so as to restrict the court, when addressing a human rights issue, to a consideration of whether, when he made his initial decision, the Secretary of State had reasonable grounds for doing so".
In paragraphs 43 to 46 Lord Phillips continued:-
"43. It would be manifestly unsatisfactory that the court should have to apply a different approach to reviewing a control order depending upon whether or not it interfered with a Convention right. Furthermore if section 3(10) only permits the court to consider whether the Secretary of State's decision to make the control order was properly reached at the time that he made it, it will not, as Article 6 requires, enable the controlled person to have a fair review of his civil rights as they are at the time that the review is carried out.
44. It is implicit from the provisions of section 7 and would, we think be implicit even without those provisions, that it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary. 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.
45. Such an approach accords with the approach of this court under ordinary principles of judicial review, see R v Secretary of State for the Home Departmentex p Turgut [2001] 1 All ER 719 where Schiemann LJ said:
"If an applicant for permission to move for judicial review claims that the Secretary of State's decision is vitiated by some form of illegality he will file evidence to that effect. The Court will not shut out evidence which is relevant to the issues. Indeed, it may order disclosure of evidence necessary for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision."
46. For these reasons we consider that section 3(10) can and should be 'read down' 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."
Paragraph 46 must be read in context. The court must consider evidence which may or may not have been available to or considered by the applicant when it was decided to impose the control order if that evidence shows that material relied on to raise the necessary reasonable suspicion could not have justified that suspicion. Parliament had assumed that s.3(10) hearings would take place as soon as possible after the control order was imposed. So much is clear from the requirement in s.3(2)(c) of the 2005 Act that directions for a s.3(10) hearing 'as soon as reasonably practicable after it is made' must be given. The applicant must keep under review the need for a control order and so in paragraph 44 of MB Lord Phillips requires that the court must be enabled to consider whether the continuing decision to keep the order in force is flawed. If the system is working as it should and the relevant hearing takes place while the order is still in being, that can lead to revocation.
This does not and cannot mean that the original decision to impose a control order is flawed simply because at the time the court hears the s.3(10) application the order is shown to be unnecessary. The respondent in this case was released from custody in 2011 having served his sentence for the criminal offences he had committed. It has not been suggested that since then he is suspected of involvement in any terrorism related activity. But it would be absurd if, as one reading of paragraph 46 of MB might indicate, that meant that I had to quash the order. With the greatest of respect to Lord Phillips and the court, I think paragraph 46 is not entirely happily phrased. What in my view in context it must mean is that the court will consider all relevant evidence whether or not available to or known by the applicant. If that evidence shows that the making of the order was flawed because, for example, of reliance on material which is shown to have been unjustified, the court will quash the order. If...
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AL v Secretary of State for the Home Department
...APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT COLLINS J PTA/42/2006 [2016] EWHC 1845 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Before: The Rt Hon Lord Burnett of Maldon THE LORD CHIEF JUSTICE OF ENGLAND AND WALES ......