Secretary of State for the Home Department v MB
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 12 April 2006 |
| Neutral Citation | [2006] EWHC 1000 (Admin) |
| Docket Number | PTA/13/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 2006 |
[2006] EWHC 1000 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Sullivan
PTA/13/2005
MR IAN BURNETT QC and MR TIM EICKE (instructed by the Treasury Solicitor) (and MR EICKE alone on this occasion) appeared on behalf of the APPLICANT
MR KEIR STARMER QC and MR ALI BAJWA (instructed by Messrs Arani & Co (and MR BAJWA alone on this occasion) appeared on behalf of the RESPONDENT
MR MICHAEL SUPPERSTONE QC and MISS JUDITH FARBEY (instructed by the Treasury Solicitor)
(and MISS FARBEY alone on this occasion) appeared on behalf of the SPECIAL ADVOCATE
Wednesday, 12 th April 2006
Introduction
This is the first hearing under section 3(10) of the Prevention of Terrorism Act 2005 ("the Act") in relation to the non-derogating control order made by the applicant under section 2(1) of the Act. The order was made against the respondent on 5th September 2005.
Statutory framework
The short title to the Act is as follows:
"An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity; to make provision about appeals and other proceedings related to such orders; and for connected purposes."
Section 1(1) defines a control order thus:
"In this Act 'control order' means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism."
By virtue of section 15(1) of the Act "terrorism" has the same meaning as in the Terrorism Act 2000, see sections 1(1) to (4) of that Act, namely:
"(1) In this Act 'terrorism' means the use or threat of action where —
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it —
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section —
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a part of the United Kingdom, or of a country other than the United Kingdom."
The Act makes provision for 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 European Convention on Human Rights ("the Convention") which can be made when there has been a designated derogation within section 14 of the Human Rights Act 1998 ("the 1998 Act"), and non-derogating control orders. The former are made by the court, the latter by the Secretary of State: see section 1(2) of the Act.
Section 2 deals with the making of non-derogating control orders. Subsection (1) provides that:
"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."
"Terrorism-related activity" is defined in subsection 1(9) as any one or more of the following:
"(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
(d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity;
and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."
The obligations that may be imposed by a non-derogating control order are:
"… any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism-related activity"
(see subsection 1(3)) and may include, in particular (see subsections 1(4) to (7)):
"4(a) a prohibition or restriction on his possession or use of specified articles or substances;
(b) a prohibition or restriction on his use of specified services or specified facilities, or on his carrying on specified activities;
(c) a restriction in respect of his work or other occupation, or in respect of his business;
(d) a restriction on his association or communications with specified persons or with other persons generally;
(e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence;
(f) a prohibition on his being at specified places or within a specified area at specified times or on specified days;
(g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom;
(h) a requirement on him to comply with such other prohibitions or restrictions on his movements as may be imposed, for a period not exceeding 24 hours, by directions given to him in the specified manner, by a specified person and for the purpose of securing compliance with other obligations imposed by or under the order;
(i) a requirement on him to surrender his passport, or anything in his possession to which a prohibition or restriction imposed by the order relates, to a specified person for a period not exceeding the period for which the order remains in force;
(j) a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access;
(k) a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened;
(l) a requirement on him to allow specified persons, either for that purpose or for the purpose of securing that the order is complied with, to remove anything found in that place or on any such premises and to subject it to tests or to retain it for a period not exceeding the period for which the order remains in force;
(m) a requirement on him to allow himself to be photographed;
(n) a requirement on him to co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means;
(o) a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand;
(p) a requirement on him to report to a specified person at specified times and places.
(5) Power by or under a control order to prohibit or restrict the controlled person's movements includes, in particular, power to impose a requirement on him to remain at or within a particular place or area (whether for a particular period or at particular times or generally).
(6) The reference in subsection (4)(n) to co-operating with specified arrangements for monitoring includes a reference to each of the following —
(a) submitting to procedures required by the arrangements;
(b) wearing or otherwise using apparatus approved by or in accordance with the arrangements;
(c) maintaining such apparatus in the specified manner;
(d) complying with directions given by persons carrying out functions for the purposes of those arrangements.
(7) The information that the controlled person may be required to provide under a control order includes, in particular, advance information about his proposed movements or other activities."
An order has effect for 12 months but may be renewed with or without modifications by the Secretary of State for further periods of 12 months if he:
"(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and
(b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity."
(see subsections 2(4) to (8)).
Subsection 2(9) provides that:
"It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion...
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