AL v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The,Lord Burnett of Maldon |
| Judgment Date | 22 February 2018 |
| Neutral Citation | [2018] EWCA Civ 278 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: T1/2016/4224 |
| Date | 22 February 2018 |
[2018] EWCA Civ 278
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
COLLINS J
PTA/42/2006
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Burnett of Maldon
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
The Rt Hon Lord Justice Sales
and
The Rt Hon Lord Justice Flaux
Case No: T1/2016/4224
Hugh Southey QC and Barnabas Lams (instructed by Arani Solicitors) for the Appellant
Jeremy Johnson QC and Zubair Ahmad (instructed by the Special Advocates Support Office) as Special Advocates
Lisa Giovannetti QC and Steven Gray (instructed by the Government Legal Department) for the Respondent
Hearing date: 31 January 2018
Introduction and factual background
This is the judgment of the court.
The appellant appeals against the order of Collins J in the Administrative Court dated 21 July 2016 upholding the decision of the Secretary of State to impose a control order on the appellant on 28 December 2006. The control order was made pursuant to the Prevention of Terrorism Act 2005 (“the 2005 Act”), section 3 of which required permission to be obtained from the court before a control order could be put into effect.
The order could be made only if, as section 2(1) of the Act provided, the Secretary of State:
“(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”.
Collins J himself had given permission to make the control order in 2006. In the order the Secretary of State confirmed the matters set out in section 2(1) and then stated that the basis for her decision was that: “I believe that you have been involved in the radicalisation of [AK] and that you wish to travel abroad to take part in terrorism-related activities”.
Section 3(2)(c) required that directions be given for a hearing in relation to the order “as soon as reasonably practicable after it is made”. Section 3(10) required the court in such a hearing to determine whether the making of the order or any obligation contained in it was flawed. That hearing came before Ouseley J in July 2007. On 17 August 2007 he gave judgment upholding the lawfulness of the control order.
The control order was renewed on 7 December 2007. Its renewal was never challenged. In the meantime, on 6 July 2007, the appellant had been arrested for offences of aggravated burglary, criminal damage and robbery and remanded in custody. On 20 February 2008, the appellant was sentenced to 4 years' imprisonment in respect of those offences, at which point the control order was revoked.
Notice of appeal against the August order of Ouseley J had been served on behalf of the appellant on 12 December 2007 on the basis that the hearing had breached his rights under Article 6 of the ECHR. That appeal (together with appeals in other control order cases) was stayed pending the decision of the House of Lords in Secretary of State for the Home Department v AF (No. 3) [2010] 2 AC 269. In that case, it was decided that the extent of disclosure which had to be given to a controlee in order to comply with Article 6 of the European Convention on Human Rights was greater than previously considered. On 11 May 2010, Maurice Kay LJ then granted permission to appeal against the order of Ouseley J. On 8 July 2010, the appeal was allowed by consent, given the deficiency in disclosure, without consideration of the merits and the case was remitted to the Administrative Court to re-determine the issue.
The Prevention of Terrorism Act 2005 was repealed by the Terrorism Prevention and Investigation Measures (“TPIM”) Act 2011 on 15 December 2011, although Schedule 8 to the later Act provides in paragraph 3(1) that the repeal does not prevent or otherwise affect the holding of any hearing in relation to the imposition of a control order. However, paragraph 3(2) limits the power of the court to determining whether the control order or any renewal of it or any obligation imposed by it should be quashed. As Collins J pointed out at [2] of his judgment, it is obvious that the power to direct revocation cannot be available where no order continues to exist.
In the event, the hearing to re-determine the issue whether the original control order should be quashed did not take place until 17–19 May 2016, many years after the control order was revoked on 20 February 2008 and the 2005 Act was repealed in December 2011. It is important to note, as we have mentioned, that there was never an appeal by the appellant against the renewal of the control order on 7 December 2007, no doubt because it had ceased to affect him, since by then he was on remand in custody. It follows that all that was before Collins J was the issue whether the original control order made on 28 December 2006 should be quashed.
The open judgment of Collins J
Collins J began by considering at [4], what the correct approach of the court should be to re-consideration of that issue and the previous judgment of the court. He referred to and followed his own judgment in GG v Secretary of State for the Home Department [2016] EWHC 1130 (Admin) (another control order case remitted for re-consideration in the light of AF (No. 3)). He stated that since the appellant had not had knowledge of all the relevant material, the guidelines set out in Devaseelan v Secretary of State for the Home Department [2008] Imm AR 241, which suggested that findings should be preserved, did not apply. He said what he must do is reconsider the findings of Ouseley J in the light of any further evidence resulting from the additional disclosure now made in compliance with the law as set out in AF (No. 3). He referred to the fact that the appellant, who had not given evidence before Ouseley J, had now served three additional statements and had given oral evidence at the hearing before Collins J. He added that, as had been accepted by counsel for the Secretary of State, he should not vary any findings made by Ouseley J which were favourable to the appellant.
The judge noted that section 3(11) of the 2005 Act required the court to apply the principles applicable on an application for judicial review in determining whether a decision was flawed. Since Convention rights were involved, it was necessary for the court to have regard to facts as they were at the time the court made its order. He cited the decision of the Court of Appeal in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140; [2007] QB 415 on how this principle should be approached in control order cases, referring to the statement of Lord Phillips CJ giving the judgment of the Court at [40] that:
“Section 3(10) of the [2005 Act] cannot be read so as to restrict the court, when addressing a human rights issue, to a consideration of whether, when he made his initial decision, the Secretary of State had reasonable grounds for doing so”.
The judge then cited the further discussion of this issue at [43] and following of the judgment, culminating in [46]:
“46. For these reasons we consider that section 3(10) can and should be ‘read down’ 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.”
The judge clearly had in mind that, unlike the Court of Appeal in MB, he was concerned with whether a control order made nearly 10 years earlier should be quashed. Thus at [6] and [7] of his judgment, he said:
“6. Paragraph 46 must be read in context. The court must consider evidence which may or may not have been available to or considered by the applicant when it was decided to impose the control order if that evidence shows that material relied on to raise the necessary reasonable suspicion could not have justified that suspicion. Parliament had assumed that s.3(10) hearings would take place as soon as possible after the control order was imposed. So much is clear from the requirement in s.3(2)(c) of the 2005 Act that directions for a s.3(10) hearing ‘as soon as reasonably practicable after it is made’ must be given. The applicant must keep under review the need for a control order and so in paragraph 44 of MB Lord Phillips requires that the court must be enabled to consider whether the continuing decision to keep the order in force is flawed. If the system is working as it should and the relevant hearing takes place while the order is still in being, that can lead to revocation.
7. This does not and cannot mean that the original decision to impose a control order is flawed simply because at the time the court hears the s.3(10) application the order is shown to be unnecessary. The respondent in this case was released from custody in 2011 having served his sentence for the criminal offences he had committed. It has not been suggested that since then he is suspected of involvement in any terrorism related activity. But it would be absurd if, as one reading of paragraph 46 of MB might indicate, that meant that I had to quash the order. With the greatest of respect to Lord Phillips and the court, I think paragraph 46 is not entirely happily phrased. What in my view in context it must mean is that the court will consider all relevant evidence whether or not available to or known by the applicant. If that evidence shows that the making of the order was flawed because, for example, of reliance on material which is shown to have been unjustified, the court will quash the order. If the evidence shows that at the time the...
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QX v Secretary of State for the Home Department
...to Conditions A and B. The answer to this question depends in part on whether this Court is bound by the reasoning in MB v Secretary of State for the Home Department [2006] EWCA Civ 1140; [2007] QB 415 and in AL v Secretary of State for the Home Department [2018] EWCA Civ 278. iii. Did t......