Secretary of State for the Home Department v AF and AE
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 18 January 2010 |
| Neutral Citation | [2010] EWHC 42 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | PTA/6/2006 PTA/4/2007 PTA/23/2008 PTA/13/2009 PTA/4/2006 PTA/34/2006 |
| Date | 18 January 2010 |
[2010] EWHC 42 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF APPLICATIONS PURSUANT TO THE PREVENTION OF TERRORISM ACT 2005
Before: Mr Justice Silber
PTA/6/2006
PTA/33/2006
PTA/4/2007
PTA/23/2008
PTA/13/2009
PTA/4/2006
PTA/34/2006
Tim Eicke and Andrew O’ Connor (instructed by Treasury Solicitor) for the Applicant
Timothy Otty QC and Zubair Ahmad (instructed by Middleweeks of Manchester) for the Respondent AF
Tim Owen QC and Ali Naseem Bajwa (instructed by Chambers of Bradford) for the Respondent AE
Hearing dates: 15 and 16 December 2009
MR JUSTICE SILBER:
I Introduction
AE and AF (who will collectively be referred to as “the controlees”) were each the subject of non-derogating control orders made by the Secretary of State for the Home Department (“the Secretary of State”) under section 3(1) of the Prevention of Terrorism Act 2005 (“PTA”). During applications and hearings relating to all these control orders, the Secretary of State relied on closed material, which on grounds of national security was not disclosed to the controlees, whose interests were represented by special advocates at the closed hearings under section 3(10) of the PTA. The controlees contended that as they had not been told the gist of the case against them, neither of them had had a fair hearing which complied with article 6 of the European Convention on Human Rights (“the ECHR”).
The control orders against both controlees have now been revoked by the Secretary of State as a result of the decision of the House of Lords in Secretary of State for the Home Department v AF (No. 3) [2009] 3 WLR 74 (“AF (No. 3)”), which required the Secretary of State to disclose substantially more of the closed information to the controlees and a third appellant AN than he had done previously. The three issues raised on these applications concern the effect of this decision and they are: first whether the control orders should be only regarded as revoked from the dates of revocation, or quashed or revoked ab initio, or from a later date but prior to the actual date of revocation (I interject to state that I do not consider that revoking ab initio is different from quashing it and I will use the term “quashing” to refer to any form of revocation with retrospective effect.); second whether the duty of disclosure explained by the House of Lords in AF (No. 3) which led to the control orders being revoked applies to a claim for damages by a controlled person arising out of the imposition of a control order upon him; and third whether the controlled persons are entitled to their costs of the earlier proceedings in this court. I will consider these issues against the context of the open facts of the cases concerning AE and AF but I have not been shown any closed evidence and there have been neither closed hearings nor closed submissions and a special advocate was not appointed.
II The Facts
The relevant procedural history in respect of AE's control orders can be summarised as follows:
(a) On 18 May 2006, AE was served with a control order (PTA/ 4/2006) imposing inter alia, an 18 hour curfew. On 28 June 2006, Sullivan J held in Secretary of State for Home Department v JJ & Others [2006] EWHC 1623 (Admin) that control orders including curfews of such length constituted deprivations of liberty and were therefore ultra vires and fell to be quashed ab initio. Sullivan J's decision was upheld on 1 August 2006 by the Court of Appeal in Secretary of State for Home Department v JJ and Others [2007] QB 446 and on 31 October 2007 by the House of Lords in Secretary of State for Home Department v JJ and Others [2008] 1 AC 385. AE was deprived of his liberty by PTA/ 4/2006 between 18 May and 11 September 2006, i.e. for 116 days.
(b) On 12 September 2006, the Secretary of State revoked the control order in PTA/ 4/2006 and made a further control order PTA/34/2006 in its place imposing, inter alia, a 14 hour curfew. This order was renewed on three occasions, in September 2007, 2008 and 2009. Its terms varied over time and included a 14 hour curfew between 12 September 2006 and 30 October 2007 (412 days), a 16 hour curfew between 31 October 2007 and 2 April 2009 (518 days), a 12 hour curfew between 3 April 2009 and 2 September 2009 (152 days) and a 10 hour curfew between 3 September 2009 and 22 September 2009 (20 days). AE was restricted by PTA/34/2006 between 12 September 2006 and 22 September 2009, i.e. for 1,104 days.
(c) On 22 September 2009, the Secretary of State revoked AE's control order in the light of the decision in AF (No.3).
(d) In total, AE has been restricted by the two control orders (PTA/ 4/2006 and PTA/34/2006) between 18 May 2006 and 22 September 2009, i.e. for 1,221 days, which is about 3years and 7 months.
In the case of AF's control orders, the relevant history may be summarised as follows:—
(a) On 2 June 2006, AF was served with a control order imposing, inter alia, an 18-hour curfew and a geographical boundary restriction for the remaining 6 hours (“PTA/6/2006”). On 1 August 2006, the Court of Appeal held in Secretary of State for Home Department v JJ and Others [2007] QB 446 that control orders including curfews of such length constituted deprivations of liberty and were therefore ultra vires and fell to be quashed ab initio. The Court of Appeal's decision in this regard was upheld by the House of Lords in Secretary of State for Home Department v JJ and Others [2008] 1AC 345. AF had been deprived of his liberty by PTA/6/2006 for 102 days.
(b) On 11 September 2006, Secretary of State revoked the control order in PTA/6/2006 and made a further order in its place imposing, inter alia, a 14-hour curfew and a geographical boundary restriction for the remaining 10 hours (“PTA/33/2006”). On 30 March 2007, Ouseley J held that this control order also constituted a deprivation of liberty and was ultra vires and fell to be quashed ab initio. AF had been restricted by PTA/33/2006 for 231 days.
(c) On 30 March 2007, the Secretary of State made a further control order imposing, inter alia, a 12-hour curfew and a geographical boundary restriction for the remaining 12 hours (“PTA/4/2007”). This order was renewed on two occasions (under PTA/23/2008 and PTA/13/2009) and was ultimately revoked by Secretary of State on 27 August 2009, following the decision of the House of Lords in AF (No. 3). AF had been restricted by PTA/ 4/2007 for 2 years and 149 days. Its terms varied over time and included a period between 1 November 2007 and 29 March 2009 when AF was subjected to a 16-hour curfew.
(d) In a judgment dated 31 October 2007, the House of Lords held unanimously that control orders with 12 and 14 hour curfews did not amount to a breach of Article 5 – see Secretary of State for the Home Department v MB and AF [2008] 1 AC 440. Consequently, Ouseley J's order dated 30 March 2007 and referred to in sub-paragraph (b) above quashing PTA/33/2006 was reversed.
(e) During the currency of his various control orders, AF has also been detained on remand for alleged breach of the orders. He was detained for alleged breach of PTA/33/2006 for 85 days between 5 January 2007 and 30 March 2007. The Crown offered no evidence to these charges following the decision of Ouseley J on 30 March 2007. He was also detained for alleged breaches of PTA/ 4/2007 on 3 occasions between 30 July 2007 and 20 March 2009 for periods totalling 99 days. The charges in relation to these alleged breaches remain pending and his trial at the Central Criminal Court in respect of these matters has been adjourned to await the outcome of these proceedings.
(f) In total, AF had been restricted by the control orders imposed on him for a total of 3 years and 15 days.
(g) Lord Phillips explained in AF (No. 3) in relation to the material available when all the control orders against AF were made that: —
“23…It is common ground that the open material did not afford the Secretary of State reasonable grounds for suspicion of involvement by AF in terrorism-related activity. The case against him was to be found in closed evidence”
There were broadly similar restrictions imposed on AE and AF, which were in addition to the curfews to which I have referred. Those imposed on AF were described by Lord Bingham in the case of Secretary of State for Home Department v MB and AF (supra) in this way at pages 468–469:—
“7… He was required to wear an electronic tag at all times. He was restricted during non-curfew hours to an area of about 9 square miles bounded by a number of identified main roads and bisected by one. He was to report to a monitoring company on first leaving his flat after a curfew period had ended and on his last return before the next curfew period began. His flat was liable to be searched by the police at any time. During curfew hours he was not allowed to permit any person to enter his flat except his father, official or professional visitors, children aged 10 or under or persons agreed by the Home Office in advance on supplying the visitor's name, address, date of birth and photographic identification. He was not to communicate directly or indirectly at any time with a certain specified individual (and, later, several specified individuals). He was only permitted to attend one specified mosque. He was not permitted to have any communications equipment of any kind. He was to surrender his passport. He was prohibited from visiting airports, sea...
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