Secretary of State for the Home Department v E
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill |
| Judgment Date | 17 May 2007 |
| Neutral Citation | [2007] EWCA Civ 459 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T1/2007/9501 |
| Date | 17 May 2007 |
[2007] EWCA Civ 459
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
MR JUSTICE BEATSON
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Wall and
Lord Justice Maurice Kay
Case No: T1/2007/9501
PTA1102005
Mr R Tam QC & Mr A O'Connor (instructed by The Treasury Solicitor) for the Appellant
Mr K Starmer QC & Mr H Southey (instructed by Messrs. Birnberg Peirce & Partners) for the Respondents
Mr A McCullough (instructed by the Special Advocate Support Office) appeared as Special Advocate
Hearing dates : 26 & 27 April 2007
Approved Judgment
This is the judgment of the court to which all members have contributed.
It is an appeal against a judgment of Beatson J dated 16 February 2007 by which he allowed the appeal of E against the renewal by the Secretary of State for the Home Department (“the appellant”) of a control order made against E (“the respondent”) on 12 March 2005, and renewed on 7 March 2006. The judge quashed the order. The order was made under sections 1 and 2 of the Prevention of Terrorism Act 2005 (“the 2005 Act”) which came into force on 11 March 2005, that is the day before the order was made.
Permission to appeal was granted by the judge. S, the wife of E, was, by order, joined as a party to the proceedings so that she could make submissions, on behalf of herself and her children, about the effect of the control order on them.
In March 2005, the basis for the decision to make the control order, correcting an earlier clerical error, was stated to be:
“You were a member of an extreme Islamist group, the Tunisian Fighting Group (TFG) which is linked to Al Qaida and Algerian terrorist group, the Salafist Group for Call and Combat (GSPC). Both TFG and Al Qaida are aligned to the concept of 'global Jihad'.
When you were detained in December 2001, a considerable amount of material was found which suggests that you had been involved in credit card or cheque frauds in the course of which considerable sums of money had been raised.”
The Security Service submission stated:
“E has been involved in terrorism-related activity and is a significant international terrorist, with extensive extremist contacts. Before he was detained under the ATCSA [Anti-Terrorism Crime and Security Act 2001], he undertook a wide variety of terrorist support activity and posed a threat to UK national security. His conduct has facilitated the preparation or commission of acts of terrorism, or was intended to do so, and has provided support and assistance to individuals known or believed to be involved in terrorism-related activity.”
E has been refused asylum but his rights under the European Convention on Human Rights (“the Convention”) at present protect him from deportation. It is not submitted that the 2005 Act is incompatible with the Convention.
The background
The order was a non-derogating control order within the meaning of section 2 of the 2005 Act so that it was required to comply with article 5 of the Convention, as well as other articles. The judge held that restrictions in the control order imposed on the respondent amounted to a deprivation of liberty within the meaning of article 5. The judge also found that the appellant's failure sufficiently to consider the prospect of prosecuting E meant that his continuing decision to maintain the control order was flawed. Lord Phillips of Matravers CJ, giving the judgment of this court in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, stated, at paragraph 53: “A control order is only appropriate where the evidence is not sufficient to support a criminal charge”.
Aspects of the procedure under the 2005 Act have been considered in this court in JJ & Ors [2006] EWCA Civ 1141, decided on 1 August 2006. This court, dismissing an appeal by the appellant against a decision of Sullivan J [2006] EWHC 1623, held that restrictions in the control order in those cases amounted to a deprivation of liberty within the meaning of article 5.
Leave to appeal to the House of Lords has been given in both MB and JJ.In Secretary of State for the Home Department v AF (30 March 2007, [2007] EWHC Admin 651), Ouseley J quashed a control order and permitted the appellant to adopt a “leapfrog” procedure and petition the House of Lords for leave to appeal. We were told that a petition is being prepared. We bear in mind the possibility that application for leave will also be made in the present case, with the further possibility of this case being heard in the House of Lords with JJ.
E and S were jointly represented on the hearing of this appeal by Mr Keir Starmer QC and Mr Hugh Southey. A special advocate, Mr Angus McCullough, also appeared. There was a short closed hearing, to which no further reference need be made.
By a respondent's notice, E also submitted that the order of Beatson J should be upheld for reasons which did not find favour with the judge:
a) A breach of section 8(2) of the 2005 Act because of a failure properly to review the prospects of a prosecution before the control order was issued;
b) A failure to act in accordance with basic principles and procedural fairness when making or renewing the control order;
c) A failure to produce any sufficient justification for conditions that violate article 8(1) of the Convention, and
d) Article 3 of the Convention was violated because of the harm to the children of E and S.
E kept open, in case of appeal to the House of Lords, submissions not available in this court because of its decision in MB; that a control order is a criminal charge for the purposes of article 6 of the Convention and that the reliance on closed material is unfair in this context. We were told that other points decided by the court in MB are not subject to appeal.
The criteria to be satisfied before a non-derogating control order may be made by the Secretary of State are set out in section 2(1) of the 2005 Act. That provides:
“The Secretary of State 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.”
For the purposes of this appeal, and subject to argument based on procedural fairness and section 8, it is not challenged that the criteria were met. Such an order has effect for a period of 12 months beginning with the day on which it is made but may be renewed on one or more occasions (Section 2(4)). Section 3 provides for supervision by the court of the making of such orders. Section 3(2) provides that, where the Secretary of State makes an application for permission to make such an order, 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 and the court may give permission unless it determines that the decision is obviously flawed.
An order made without the permission of the court must be referred immediately to the court (section 3(3)). By virtue of section 3(12), if the court determines that a decision of the Secretary of State was flawed, it may quash the order, quash one or more obligations imposed by the order or may give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
Section 7 empowers the Court to revoke, relax or modify the obligations imposed by an order while it is in force. Paragraph 8 of the Schedule to the 2005 Act empowers the Secretary of State, when a control order, or a renewal of a control order, is quashed, to make a new order “to the same or similar effect.” That power has been exercised in the present case, following the judge's decision.
Section 10 confers a right of appeal against the renewal of an order, or its modification without the consent of the controlled person. That is the right exercised by the respondent in the present case. Under section 10(4), the function of the court, on an appeal against renewal, is to determine whether the decision of the Secretary of State that it is necessary for an order imposing obligations to continue in force was flawed and whether his decision that the obligations to be imposed by the renewed order are necessary was flawed. Before the judge, the respondents successfully argued that restrictions on the control order imposed on E amounted to a deprivation of liberty.
Article 5 and the authorities
Article 5(1) of the Convention provides: “Everyone has the right to liberty and security of the person”. It goes on to provide: “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” The limited circumstances in which that may occur are then set out including, of course: “the lawful detention of a person after conviction by a competent court.” The appellant does not seek to rely on any of the saving provisions, accepting that the issue under article 5 is whether the order involves a deprivation of E's liberty.
In Engel & Ors v Netherlands (No.1) [1976] 1 EHRR 647, the European Court of Human Rights (ECtHR) stated, at paragraph 58:
“In proclaiming the 'right to liberty', paragraph 1 of Article 5 is contemplating individual liberty in its...
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