COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE WILSON
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Mr Danny Friedman and Ms Michelle Butler (instructed by Messrs Gladstone) for the Respondent
Hearing date: Wednesday 8 July 2009
Crown Copyright ©
Lord Justice Sedley :
The control order
You must permit entry to your residence and/or any building, land, vehicle, or other place in the United Kingdom that you own, control, or have any other interest in, to police officers and/or persons authorised by the Secretary of State and/or
bypersons from the monitoring company, on production of identification, at any time to your presence at the residence and/or to ensure that you can comply and are complying with the obligations imposed by this control order. Such monitoring may include but is not limited to:-
(a) a search of the residence
or any vehicle controlled by youand/or you whilst you are in the residence and/or a search of any building, land, vehicle, or other place in the United Kingdom that you own, control, or have any other interest in;
(b) removal of any item to ensure that it does not breach the obligations imposed by this control order;
(c) inspection/modification or removal for inspection/modification of any article to ensure that it does not breach the obligations by this control order;
(d) permitting the installation of such equipment, in the residence, as may be considered necessary to ensure compliance with the obligations imposed by this control order; and
(e) the taking of your photograph.
(3) The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
(4) Those obligations may include, in particular—
(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.
(8) A control order may provide for a prohibition, restriction or requirement imposed by or under the order to apply only where a specified person has not given his consent or approval to what would otherwise contravene the prohibition, restriction or requirement
56. Mr Friedman submits, as did Miss Harrison on behalf of NN, that there is no power to impose an obligation to submit to a personal search. Section 1(4) of the 2005 Act lists a number of obligations which may be included in a control order. The subsection commences with these words:-
"These obligations may include, in particular …"
They are therefore clearly not intended to represent a limitation on what may properly be included in an order. However, there is no reference to searches of the person. S.1(4)(k) permits a requirement to allow searches of his residence or other premises to which he can grant access 'for the purpose of ascertaining whether obligations imposed by an order have been, are being or are about to be contravened'. S.1 (4)(l) permits a requirement to allow anything found to be removed for testing or to be retained so long as the order is in force. S.1(4)(m) permits a requirement that he allow himself to be photographed.
57. In R (Gillan) v Commissioner of Police of the Metropolis  2 AC 307, the House of Lords considered the lawfulness of the use of powers of stop and search contained in the Terrorism Act 2000. The power is conferred (2000 Act, s.45) for the purpose of searching for articles of a kind which could be used in connection with terrorism and can be used whether or not the constable has grounds for suspecting the presence of articles of that kind. The House upheld the use of the power in the circumstances of that case, but Lord Bingham at the outset of his speech said this:-
"It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it."
The principle referred to by Lord Bingham will extend to a search of anyone at home, or in any place in addition to on the streets. There must be a clear statutory provision which permits a search of the person. It may well be that the same principle applies to a search of a person's home, but there is in s.1(4)(k) a clear statutory provision permitting it.
58. A search of the person is a trespass and, unless authorised, an unlawful act. It is interesting that Parliament considered it necessary to provide specifically for a requirement to submit to being photographed, something far less intrusive than a personal search. The 2000 Act contains provisions which permit a search for items which may constitute evidence that an individual is a terrorist, but Parliament has not included a suspicion that or to ascertain whether there may be a breach of control obligations.
59. I have no doubt that Mr Friedman and Miss Harrison are right. In order to justify a search of the person, there must be a clear and unambiguous authorisation in a statute. There is none in s.1 of the 2005 Act and the fact that specific powers are given to search premises and to photograph individuals is inconsistent with the existence of a power to search the person. The opening words of s.1(4) are insufficient to provide such a power. That obligation must be removed from the order.
"….. three principle or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense."
"It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole.
What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.
This is not to say that there can be no standing instructions. Although there may always be special features in any individual case, the circumstances in which people are taken into custody are capable of being categorised and experience may show that certain measures, including searches, are pima facie reasonable and necessary in a particular category of case. The fruits of this experience may be passed on to the officers in the form of standing instructions. But the officer having custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures. So far as searches are concerned, he should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. Clearly going through someone's pockets or handbag is lees of an affront than a body search. In every case a police officer ordering a search or depriving a prisoner of property should have a very good reason for doing so."
Lord Justice Dyson:
"Subject to this section, an inspector may by notice in writing require a person – (a) to deliver to him such documents as are in the person's possession or power and as (in the inspector's reasonable opinion) contain, or may contain, information relevant to – (i) any tax liability to which the person is or may be subject, or (ii) the amount of any such liability…"
"8. The courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication. The speeches of Lord Steyn and myself in R v Secretary of State for the Home Department, Ex p Simms  2 AC 115 contain some discussion of this principle and its constitutional justification in the context of human rights. But the wider principle itself is hardly new. It can be traced back at least to Stradling v Morgan (1560) I PI 1999."
"But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated, leaving no room for the inference that Parliament did not mean what it said."
"Conduct to which this Part applies shall be lawful for all purposes if (a) an authorisation under this Part confers an entitlement to engage in that conduct on the person whose conduct it is; and (b) his conduct is in accordance with the authorisation."
"Far from being general and ambiguous, the very essence of its provisions was to enable fundamental privacy rights to be overridden to an extent that was no more than necessary under precise conditions that were sufficiently strict and carefully regulated" (my emphasis).
Lord Justice Wilson: