Secretary of State for the Home Department v JJ and Others

JurisdictionEngland & Wales
JudgeMR JUSTICE SULLIVAN:
Judgment Date28 June 2006
Neutral Citation[2006] EWHC 1623 (Admin)
Docket NumberPTA/14/2005; PTA/15/2005; PTA/16/2005
CourtQueen's Bench Division (Administrative Court)
Date28 June 2006

[2006] EWHC 1623 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005

Royal Courts of Justice

Strand

London WC2

Before:

Mr Justice Sullivan

PTA/14/2005; PTA/15/2005; PTA/16/2005

PTA/17/2005; PTA/18/2005; PTA/19/2005

The Secretary Of State For The Home Department
Applicant
and
Jj; Kk; Gg; Hh; Nn; Ll
Respondents

MR TIM EICKE and MR ANDREW O'CONNOR (instructed by Treasury Solicitor) appeared on behalf of the Applicant

MR KEIR STARMER QC and MR RONAN TOAL (instructed by Messrs Tyndallwoods) appeared on behalf of the Respondent HH

MR KEIR STARMER QC and MS STEPHANIE HARRISON (instructed by Messrs Tyndallwoods) appeared on behalf of the Respondent NN

MR RAZA HUSAIN and MR DANIEL FRIEDMAN (instructed by Messrs Gladstones) appeared on behalf of the Respondents GG and KK

MR MANJIT GILL QC and MR BARNABAS LAMS (instructed by Messrs Lawrence & Co) appeared on behalf of the Respondent JJ

MISS MELANIE PLIMMER (instructed by Greater Manchester Immigration Unit) appeared on behalf of the Respondent LL

MR MICHAEL SUPPERSTONE QC and MISS JUDITH FARBEY (instructed by the Special Advocates Support Office) appeared as Special Advocates

MR JUSTICE SULLIVAN:

Introduction

1

On 12th April 2006 I gave judgment in the case of Secretary of State v MB [2006] EWHC 1000 (Admin). MB was the first hearing under section 3(10) of the Prevention of Terrorism Act 2005 ("the Act") in relation to a non-derogating control order made by the applicant under section 2(1) of the Act. I decided under section 3(13) of the Act that the control order was to continue in force, but granted a declaration pursuant to section 4(2) of the Human Rights Act 1998 ("the 1998 Act") that the procedures in section 3 of the Act relating to the supervision by the court of non-derogating control orders made by the Secretary of State were incompatible with the respondents' right to a fair hearing under Article 6(1) of the European Convention on Human Rights ("the Convention"). I gave the Secretary of State permission to appeal, and the appeal is due to be heard by the Court of Appeal in the week beginning 3rd July 2006.

2

The orders made by the applicant under section 2(1) of the Act against the six respondents, GG, HH, JJ, KK, LL and NN, were the subject of a directions hearing on 25th May 2006. At that time it was known that there would be an appeal against the decision in MB, but it was not known when the appeal would be heard. In an ideal world it would have been desirabLe to adjourn the hearing under section 3(10) of the Act in respect of these six cases pending the Court of Appeal's judgment in MB. However, it is not an ideal world. The six respondents all continue to be subject to the severe obligations imposed in the control orders made against them, and the applicant needs to know whether these, and other control orders containing the same or similar obligations, are lawful. It is, perhaps, unfortunate that MB will be the first case under the Act to be considered by the Court of Appeal, because the obligations imposed upon MB (see paragraph 18 of the judgment) were far less restrictive than those imposed upon the six respondents in the present case, and were not representative of the obligations imposed by most of the non-derogating control orders. Annex 2 to the First Report of Lord Carlile of Berriew QC, the Independent Reviewer appointed under section 14 of the Act, contains the pro forma of the Schedule of Obligations "imposed on most but not quite all of the controlees so far" (see paragraph 42 of his report). Although there are minor variations between the six control orders in the present case, the orders are for all practical purposes identical, and they are in the same terms as those set out in the pro forma. The obligations imposed by the control orders made against the respondents are set out in Annex I to this judgment.

3

Lord Carlile concluded in respect of the pro forma obligations:

"On any view those obligations are extremely restrictive. They have not been found to amount to the triggering of derogation, indeed there has been no challenge so far on that basis —but the cusp is narrow.

The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet. And a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably."

4

As mentioned in MB (see paragraph 4) the Act distinguishes between two types of control order: derogating control orders, which impose obligations which are incompatible with the controlee's right to liberty under Article 5 of the Convention, and non-derogating control orders. The former are made by the court, and may be made only when the court is satisfied (inter alia) that there is a designated derogation from the whole or part of Article 5 under section 14 of the 1988 Act: see section 4(3)(c) of the Act. The latter are made by the Secretary of State.

5

The Statutory Framework is set out in paragraphs 2-16 of the judgment in MB, and it is unnecessary to repeat the whole of it here. The following provisions are of particular importance for present purposes. Section 1(2) states who shall be entitled to make what type of control order:

"(2) The power to make a control order against an individual shall be exercisable—

(a) except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State; and

(b) in the case of an order imposing obligations that are or include derogating obligations, by the court on an application by the Secretary of State."

6

Subsections 1(3)-(8), which deal with the obligations that may be included in a control order, apply to control orders made under both paragraph (a) and paragraph (b) in subsection 1(2).

7

Subsection 1(10) defines a derogating obligation:

"'derogating obligation' means an obligation on an individual which—

(a) is incompatible with his right to liberty under Article 5 of the Human Rights Convention; but

(b) is of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order;

'designated derogation' has the same meaning as in the Human Rights Act 1998 (c. 42) (see section 14(1) of that Act); …"

8

Section 2 deals with the making of non-derogating control orders by the Secretary of State. Subsection 2(3) states that:

"A control order made by the Secretary of State is called a non-derogating control order."

That definition is repeated in section 15(1), a "'non-derogating control order' means a control order made by the Secretary of State." Section 15(1) also defines a derogating control order:

"'derogating control order' means a control order imposing obligations that are or include derogating obligations;"

9

As explained in MB, non-derogating control orders once made by the Secretary of State under section 2 and derogating control orders once made by the court under section 4, then go their wholly separate and very different procedural ways. In particular, in the former case the court's role is supervisory and the standard of proof is a reasonable suspicion, whereas in the later case the court decides whether to confirm its order on the balance of probabilities. Subsection 4(7)(d) provides that:

"(7) At the full hearing, the court may confirm the control order (with or without modifications) only if—

(d) the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order."

10

Unlike a non-derogating control order, which has effect for a period of 12 months, but may be renewed by the Secretary of State for further periods of 12 months (see subsections 2(4) and 2(6)), a derogating control order ceases to have effect after six months, but may be renewed by the court for further periods of six months (see subsections 4(8) and (9)). The power conferred by section 7 of the Act to modify the obligations in control orders is careful to maintain the distinction between non-derogating and derogating obligations:

"(3) The Secretary of State may not make to the obligations imposed by a control order any modification the effect of which is that a non-derogating control order becomes an order imposing a derogating obligation."

11

Article 5(1) of the Convention —the Right to Liberty and Security —provides that:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …"

12

In their responses to the making of the control orders, the respondents argued that the orders were unlawful on a number of grounds. Pre-eminent among those grounds was the submission that the cumulative impact of the obligations imposed by the orders amounted to a deprivation of the respondents' liberty in breach of Article 5(1). It was therefore contended that the Secretary of State had made a derogating control order which he had no power to do (and which the court had no power to do in the absence of a designated derogation).

13

The other grounds raised by the respondents included submissions that:

(1) proceedings under section 3 of the Act were criminal, not civil, for the purposes of Article 6 of the Convention;

(2) if the procedures under section 3 were civil, not criminal, they...

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