Secretary of State for the Home Department v AY
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Owen |
| Judgment Date | 26 July 2010 |
| Neutral Citation | [2010] EWHC 1860 (Admin) |
| Date | 26 July 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/36/2008 |
[2010] EWHC 1860 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
Before: The Honourable Mr. Justice Owen
Case No: PTA/36/2008
PTA/44/2009
Tim Eicke and Carys Owen (instructed by the Treasury Solicitor) for the Claimant
Henry Blaxland QC and Dan Squires (instructed by Birnberg Pierce) for the Respondent
Mohammed Khamisa QC and Martin Goudie – Special Advocates for the Respondent
Hearing dates: 23 -24 June 2010
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE MR JUSTICE OWEN
The Honourable Mr. Justice Owen:
This is a hearing under Section 3(10) of the Prevention of Terrorism Act 2005 (PTA) and constitutes a review of a control order imposed on AY on the 28 July 2008. On 1 April 2009 Ouseley J ordered pursuant to paragraph 5 of Schedule 5 to the PTA, that nothing should be published that would tend to identify AY. The order remains in force.
The background
AY is a British national of Pakistani origin born in Birmingham on 5 August 1981. In 2002 he left the United Kingdom when wanted by the Police in relation to a serious, but non terrorism-related offence. He spent the following 4 years living in Pakistan, and for short periods in South Africa. When in South Africa AY assumed the identity of a South African national so as to obtain a South African passport. In June 2006 he married a British national, and in July 2006 he and his wife travelled to the United Kingdom from South Africa by way of Mauritius, AY travelling under this assumed identity.
In August 2006 AY was arrested in connection with a plot to mount multiple terrorist attacks. AY was remanded in custody, and in August 2006 was charged with offences of conspiracy to murder and engaging in conduct preparatory to acts of terrorism.
In a trial commencing in April 2008, the appellant and others were tried on an indictment containing four counts. All pleaded not guilty to count 1, a charge of conspiracy to murder particularised as conspiracy to murder by the detonation of improvised explosive devices (IEDs), and to count 1A, a simple charge of conspiracy to murder. The jury convicted three of the defendants on count IA, but could not agree in relation to the remaining counts and defendants.
In a second trial that took place between February 2009 and September 2009, defendants in the first trial were retried on the counts upon which the jury had been unable to come to a verdict.
The Legal Framework
Under Section 2(1) of the PTA the Secretary of State may made a control order against an individual if she —
“(a) has reasonable grounds for suspecting 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.”
A control order made by the Secretary of State is called a non-derogating control order, and under Section 2(4) has effect for a period of 12 months, but may be renewed on one or more occasions.
The function of the court on a hearing under Section 3(10) 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.”
In determining what constitutes a flawed decision, the court must apply the principles applicable on an application for judicial review (section 3(11)). What that means in practice was explained by the Court of Appeal in SSHD v MB (2007) QB 415, (2006) EWCA Civ 1140. At paragraph 44 Lord Phillips of Worth Matravers CJ (as he then was), said that “…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…” and continued at paragraph 46 –
“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.”
At paragraphs 60 – 67 Lord Phillips addressed the nature of the exercise to be carried out by the court under section 3(10), saying at paragraph 60 –
“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.”
At paragraph 67 he went on to consider the standard of proof –
“…The PTA authorises the imposition of obligations where there are reasonable grounds of suspicion. That issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may have involved considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on the balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the procedure for determining whether reasonable grounds for suspicion exists that has to be fair if article 6 is to be satisfied.”
At paragraph 64 Lord Phillips observed that the Secretary of State is better placed than the court to decide the measures necessary to protect the public against activities of a terrorist suspect, and that for that reason a degree of deference must be paid to decisions taken by the Secretary of State. But notwithstanding such deference, the court must give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order (paragraph 65).
But before considering the issues that arise under section 3(10), it is necessary to address a preliminary issue of law raised by AY in his Notice of Appeal to the High Court against the renewal of the control order filed on 12 August 2009. He contends that it is wrong in principle and an abuse of process for the SSHD to make a control order on the basis of alleged terrorism-related activity which has been the subject of a criminal charge upon which the subject of the order has been acquitted by a jury (the principal preliminary issue). A supplementary argument was developed by Mr. Blaxland QC who appeared for AY in the open hearing, and by the Special Advocate Mr. Khamisa QC in the course of their submissions, namely that it is wrong in principle to make a control order in reliance upon evidence that was available to be adduced at the trial, but was not deployed by the prosecution (the supplementary preliminary issue). It is submitted that in either case a decision to impose a control order would be flawed and should be quashed.
The principal preliminary issue
It is first necessary to consider section 8 of the PTA which defines the inter-relationship between a potential prosecution and the making of a control order. The relevant provisions are in the following terms
“8. Criminal investigations after making of control order
(1) This section applies where it appears to the Secretary of State –
(a) that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism;
(b) that the commission of that offence is being or would fall to be investigated by a police force.
(2) Before making or apply for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism.”
(3) If a control order is made against the individual the Secretary of State must inform the Chief Officer of the police force that the control order has been made and that sub-section (4) applies.
(4) It shall then be the duty of the Chief Officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect”
In SSHD v E and another [2008] 1 AC 499, the House of Lords considered the relationship between section 2(1) and the provisions of section 8. At paragraphs 14–16 of his speech, Lord Bingham of Cornhill endorsed the view of the Court of Appeal as to the principle governing the legislative provisions.
“14. In the submission of E, it is a fundamental premise of the 2005 Act in general, and section 8 in particular, that where there are realistic prospects of prosecuting an individual against whom it is proposed to make a control order, he will indeed be prosecuted. There is strong support for this contention. In Secretary of State for Home Department v MB [2007] QB 415, para 53, the Court of Appeal (Lord Phillips of...
To continue reading
Request your trial
-
Secretary of State for the Home Department v AY
...which had been imposed on AY on 8 September 2008. 8 In an open judgment handed down on 26 July 2010 with the neutral citation number [2010] EWHC 1860(Admin) ("the 2010 judgment"), Owen J held that:— "57. Given the extremely serious nature of the Plot and the conclusions to be drawn from th......