Secretary of State for the Home Department v AF (No 2)
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR,Lord Justice Rix,Lord Justice Keene |
| Judgment Date | 22 February 2008 |
| Neutral Citation | [2008] EWCA Civ 117 |
| Docket Number | Case No: T1/2007/2839 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 February 2008 |
[2008] EWCA Civ 117
Sir Anthony Clarke Mr
Lord Justice Rix And
Lord Justice Keene
Case No: T1/2007/2839
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon Mr Justice Stanley Burnton
Mr Tim Otty QC and Mr Tom Hickman (instructed by Messrs Middleweeks) for the Respondent/Appellant
Ms Kate Grange (instructed by the Treasury Solicitor) for the Applicant/Respondent
Introduction
This is an appeal by AF from an order dated 30 November 2007 made by Stanley Burnton J ('the judge'). In the order the judge among other things refused an application that a hearing under section 3(10) of the Prevention of Terrorism Act 2005 ('the PTA') should be before a judge other than Ouseley J and made two declarations to which I refer below.
Background
AF has been the subject of three non-derogating control orders under section 3 of the PTA. The first was PTA/6/2006 which was imposed on 24 May 2006. It required AF, among other things, to remain in his residence for 18 hours a day and to remain in a restricted area for the remaining 6 hours. The order was revoked on 11 September 2006 by the Secretary of State ('the SSHD') following the decision of this court in SSHD v JJ and Others [2006] EWCA Civ 1141.
It was replaced by PTA/33/2006 on the same day, 11 September 2006. This second order reduced the hours of curfew to 14 and relaxed some of the other restrictions in the first order. There followed a full hearing under section 3(10) of the PTA before Ouseley J. The hearing lasted 7 days and involved both extensive oral evidence and legal submissions. It also involved both open and closed hearings and open and closed evidence. Ouseley J handed down his judgment, [2007] EWHC (Admin) 651, on 30 March 2007. By an order of the same date, Ouseley J quashed PTA/33/2006 on the ground that the order constituted a deprivation of liberty under article 5 of the European Convention of Human Rights ('the Convention'). In the course of his lengthy judgment, which ranged over a number of different issues, Ouseley J reached the following conclusions which are relevant or potentially relevant for present purposes:
i) On the closed material reasonable grounds existed for suspecting that AF was or had been involved in terrorism-related activity, although no such grounds were disclosed by the open material and it was not submitted that they were: [13].
ii) A control order was necessary for purposes connected with protecting members of the public from a risk of terrorism “in view of the potential harm to the public if AF engages in terrorism-related activity, and in view of his willingness and ability to do so”: [133].
iii) Had the control order not breached Article 5, the court could be satisfied that the general run of restrictions were necessary, but the detail and balance would have to be examined further: [145].
iv) The process under the PTA was not one in which AF had been without a substantial and sufficient measure of procedural protection, so that there was no breach of article 6 of the Convention: [167].
In anticipation of the judgment of Ouseley J and in the light of his conclusion on article 5 of the Convention, the third control order PTA/ 4/2007 was made on 29 March 2007 and served on the following day. It reduced the period of curfew to 12 hours.
Both parties appealed to the House of Lords under the leap frog procedure contained in section 12(3)(b) of the Administration of Justice Act 1969 and the appeal was heard together with an appeal from a decision of this court in SSHD v MB [2006] EWCA Civ 1140, [2007] QB 446. The House of Lords gave judgment in both cases on 31 October 2007. On the same day the House of Lords gave judgment in SSHD v JJ and Others [2007] UKHL 45 [2007] 3 WLR 642.
By a majority the House of Lords held in SSHD v MB & AF [2007] UKHL 47, [2007] 3 WLR 681
i) reversing the decision of Ouseley J, that PTA/33/2006 did not amount to a deprivation of liberty contrary to article 5 of the Convention for the reasons given in SSHD v JJ; and
ii) that the question whether AF had been given a fair trial in accordance with article 6 of the Convention would be remitted to the Administrative Court for reconsideration in the light of the opinions of the majority.
The majority comprised Baroness Hale, Lord Carswell and Lord Brown of Eaton-under-Heywood. They also I think included Lord Bingham, albeit dubitante. Lord Hoffmann dissented.
Before the House of Lords gave its judgment on 31 October 2007, the second control order PTA/33/2006 expired on 10 September 200This was because control orders (like the PTA itself) only have a life of one year and the order had been imposed on 11 September 2006. In fact AF had not been subject to PTA/33/2006 since 31 March 2007 when it was quashed by Ouseley J and replaced by PTA/4/200PTA/33/2006 was (I suppose) retrospectively revived by the order of the House of Lords which reversed Ouseley J's order and at the same time remitted it for reconsideration in the light of the majority opinions. Since, even if retrospectively revived, the order expired on 10 September 2007, the decision of the court on remission, so far as I can see, only has historical significance or potential significance.
In the meantime, PTA/33/2006 was (as I have just said) replaced by PTA/ 4/2007 on 29 or 30 March 2007. That order was modified in some respects by Goldring J on 17 August 2007 and was further modified on 31 October and 9 November 2007. In particular, the number of hours of curfew was increased to 16 on 31 October in the light of the decision of the House of Lords.
In these circumstances the matter was initially listed before Stanley Burnton J for directions in relation to the substantive hearing required under section 3 of the PTA in respect of PTA/ 4/2007. The control order was made under section 3(2). It follows that directions “for a hearing in relation to the order” were required under section 3(2)(c).
Section 3(10) provides:
“On a hearing in pursuance of directions under subsection 2(c) …, the function of the court 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.”
It was held by this court in SSHD v MB that section 3(10) should be construed so that the function of the court at such a hearing is to consider whether any of the decisions identified in section 3(10)(a) and (b) is (not was) flawed as at the date of the hearing. By section 3(11) the court must apply the principles applicable on an application for judicial review. This court explained at [60] of SSHD v MB that on the true construction of the PTA the review involved the court deciding whether the facts relied upon by the SSHD amounted (as at the date of the hearing) to reasonable grounds for suspecting that the controlee is or has been involved in terrorism-related activity.
It follows that the role of the court when considering PTA/ 4/2007 is to decide whether
a) the SSHD has reasonable grounds for suspecting that AF is or has been involved in terrorism-related activities;
b) 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 AF; and
c) the decision of the SSHD in respect of each such obligation is flawed.
Those formulations are derived from sections 2(1) and 3(2), (10) and (11) of the PTA as considered by this court in SSHD v MB. I will return below to the approach to be adopted by the court in reaching those decisions.
In the light of the recent jurisprudence there is an anterior question, namely whether the hearing of those questions will be a fair hearing in accordance with article 6 of the Convention. As already indicated, Ouseley J held that the hearing under section 3(10) in respect of PTA/33/2006 was fair. He did so on the basis of the decision of this court in SSHD v MB (to which I was a party together with Lord Phillips CJ and Sir Igor Judge P) that, although the case against AF depended on the closed material which he was not permitted to see and, although he was not permitted to be told even the gist of the case against him, the hearing was fair because of the role played by the special advocates Mr Hugo Keith and Mr Jeremy Johnson. As I said earlier, the majority in the House of Lords took a somewhat different view. The principles applicable to the question whether the hearing under section 3(10) of the PTA in respect of PTA/ 4/2007 will be fair within the meaning of article 6 of the Convention will be different from those applied by Ouseley J in respect of PTA/33/2006. They will be the principles to be deduced from the speeches of the majority in SSHD v MB and AF. The same principles will be applicable to the question remitted to the Administrative Court by the House of Lords in respect of PTA/33/2006.
The hearing before the judge on 21 November
On 21 November Stanley Burnton J was invited to consider a preliminary question or questions said to arise or potentially to arise in relation to the hearings in respect of PTA/33/2006 and PTA/ 4/2007. The judge said at [1] that two issues of importance arose in relation to hearings under section 3(10) and 10(4) of...
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