COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Collins
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LORD JUSTICE PITCHFORD
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Tim Eicke (instructed by Treasury Solicitor) for the Respondent
Hearing date: 24 March 2010
Crown Copyright ©
Lord Justice Pitchford :
(1) whether a "controlled person" to whom the Secretary of State has given notice of modification under section 7(2)(d) and (8)(c) PTA 2005, may seek to challenge or reverse its implementation in an interlocutory application for an injunction, either in the course of judicial review proceedings or in the course of an appeal against the modification under section 10 of the Act; and
(2) whether, and if so to what extent, the procedural safeguards of Article 6 ECHR apply to judicial consideration of the interlocutory application.
Non-Derogating Control Orders
"(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 the individual."
"...(e) a restriction in respect of his place of residence...;
…(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...",
and, under section 1(5), "in particular...a requirement on him to remain at or within a particular place or area..."
Supervision by the Court
Modification by the Secretary of State
"...(d) make to the obligations imposed by such an order any modifications which he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity."
but may not make any modification whose effect would be to impose a "derogating obligation" (section 7(3)).
"(5) The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order (whether on a renewal or otherwise), or on an appeal against a decision not to modify such an obligation, is to determine whether the following decision of the Secretary of State was flawed—(a) in the case of an appeal against a modification, his decision that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity; and(b) in the case of an appeal against a decision on an application for the modification of an obligation, his decision that the obligation continues to be necessary for that purpose.
(6) In determining the matters mentioned in subsections (4) and (5) the court must apply the principles applicable on an application for judicial review.
(7) If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are—(a) power to quash the renewal of the order;(b) power to quash one or more obligations imposed by the order; and(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
(8) In every other case, the court must dismiss the appeal."
"(1) Control order decisions and derogation matters are not to be questioned in any legal proceedings other than—(a) proceedings in the court; or(b) proceedings on appeal from such proceedings.
(2) The court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 in relation to proceedings all or any part of which call a control order decision or derogation matter into question.
(3) No appeal shall lie from any determination of the court in control order proceedings, except on a question of law.
(5) The Schedule to this Act (which makes provision relating to and for the purposes of control order proceedings and proceedings on appeal from such proceedings) has effect.
(6) In this Act "control order proceedings" means-
…..(g) proceedings on an appeal under section 10;(h) proceedings in the court by virtue of subsection (2);...
(7) In this section "control order decision" means—(a) a decision made by the Secretary of State in exercise or performance of any power or duty of his under any of sections 1 to 8 or for the purposes of or in connection with the exercise or performance of any such power or duty;(b) a decision by any other person to give a direction, consent or approval, or to issue a demand, for the purposes of any obligation imposed by a control order; or(c) a decision by any person that is made for the purposes of or in connection with the exercise of his power to give such a direction, consent or approval or to issue such a demand.
"Court" is defined in section 15(1) PTA 2005, in the case of a controlled person whose principal place of residence is in England and Wales, as the High Court.
CPR Part 76
Factual context of the present appeal
"While I think it is arguable that the court has power to grant an injunction against the putting into effect of a modification…..I recognise the force of the decision of Blake J in BM refusing a similar injunction. There are...powerful arguments that the effect of s. 11(1)(a) read with 11(6)(g) do suggest that the correct route to challenge is via the appeal. In fact, I think judicial review is not the correct route.
I appreciate that there are likely to be arguments about disclosure and it may well be necessary to extend it on the appeal. But the material before me persuades me that there are very strong grounds for requiring the move out of London and the choice of [town] is reasonable. BX's remedy lies in a speedy appeal. A special advocate should be appointed quickly and such application as may be needed for further disclosure can be made speedily…
In all these circumstances, I am not prepared to grant the injunction sought."
"I have some sympathy with the applicant since it is apparent that the removal to [the town identified] will take place at great inconvenience to him and to his family. However, the scheme of the 2005 Act is that control orders and their contents can only be considered by the court in proceedings within s. 11. I am satisfied that my suggestion in BH that judicial review was possible before the modification was put into effect was wrong.
However, a modification appeal is a proceeding within s. 11 and the court does have power to grant any appropriate order. Nevertheless, the modification can only be stopped in advance if there are grounds for thinking that it may be a wrong use of the powers given by the Act. It is not appropriate at this stage to go into what can or cannot be disclosed. That would take time since, as the applicant's advisers recognise, a special advocate would be needed to deal with the closed material.
The law provides a right of appeal against modification. Article 6 will then apply, but it does not arise at the interim stage. I am satisfied that the need for this modification and removal out of London is supported by the material I have seen. In those circumstances, despite the statements and the additional grounds, an oral hearing could not achieve anything. The applicant's only remedy is to seek to appeal against my order."
(i) disclosure 'in open' of sufficient of the evidence on which the Secretary of State relied to justify the modification as would enable BX to respond to the case he had to meet;
(ii) an opportunity to make informed representations to the Secretary of State upon both the national security and Article 8 issues; and
(iii) a speedy, practical and effective interim remedy by means of access to a court which could, in an appropriate case, maintain the status quo pending a full contested hearing.
Secretary of State's Response
Issue 1 – Jurisdiction
"The forced relocation of BX from London where he has resided since 1992, where his wife and step son reside, where he has accommodation available with his family and employment and to a place where he has never been before, where he has no ties, knows no-one, there is no [shared] community and where he will as a consequence face acute social isolation will inevitably have a grave impact on his rights under Article 8 ECHR and which in combination with the other obligations of the Control Order constitute a deprivation of liberty."
In my view, BX's claim for judicial review was expressly permitted by section 11(2) of the 2005 Act.
"The test for granting an injunction against a public authority exercising public law powers is [a] more stringent test than mere balance of convenience, and would require a strong arguable case as to prospects of success. On the assumption that the reliability and sufficiency of the material would be examined in a s. 10 appeal within an expedited time scale of under 28 days, with the assistance of more detailed submissions from a special advocate, its nature was such as did justify the refusal of injunctive relief against implementation of the relocation requirement until the hearing of such an appeal."
I accept the submission made on behalf of the Secretary of State that while the judge remains engaged in a consideration of the balance of convenience the balance is assessed in the context of the exercise by the Secretary of State of an important public duty. In Smith v. Inner London Education Authority  1 All ER 411 at page 422 Browne LJ said:
"...where a defendant is a public authority performing duties to the public one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed. I think this is an example of the "special factors" affecting the balance of convenience which are referred to by Lord Diplock in American Cynamid Co v. Ethicon Ltd  1 All ER 504 at 511,  AC 396 at 408."
(See also to similar effect Sierbein v. Westminster City Council  86 LGR 431 at pages 439-440, per Dillon LJ and R v. Transport Secretary, ex parte Factortame Ltd (No. 2)  3 WLR 818 at page 870F-871A, per Lord Goff.)
"13. In my judgment, there is an urgent need of an effective hearing where the court could scrutinise the justification for the interference in open and closed material and all the material that the claimant would want to marshal in response to it. The review of the decision to approve the control order at all was not going to be quick enough to perform that function. Separating a father from his children (and vice versa) for eight months without judicial supervision and appropriately intensive review in the light of the subject matter is not an acceptable timescale, especially where the interests of the child are concerned.
14. I do not accept Ms Rose's submission that the s. 10 appeal is incapable of providing the opportunity for the court to reach its own conclusion on legality, justification and proportionality. Although a modification appeal may assume the legitimacy of some terms of the control order on national security grounds, the question of whether nothing less than relocation for the time being was necessary on national security grounds could be sufficiently explored and determined as a distinct issue in the s. 10 appeal that can in these unusual circumstances be heard in advance of the full review itself. In my judgment, approaching the powers and function of the court under s. 10 in the light of the engagement of human rights principles, it would not be sufficient to justify the disputed particular requirement of relocation to [the named town] that the Secretary of State's reasons to restrict liberty in seeking a control order at all may not eventually turn out to be flawed. A hearing dedicated to the particular disputed requirement that is the issue on the appeal can be directed to the crucial material on which reliance is placed by both sides in open and closed.
15. As long as an effective appeal can be arranged within a reasonable period of time, I can see no advantage to bringing parallel proceedings for judicial review. Indeed, it may well be an abuse of the process if the judicial review sought to replace or circumvent the relevant tests in the statutory scheme. The fact that the statutory scheme did not envisage suspensive relief of modifications pending an appeal might be a pointer against injunctive relief in judicial review, although I accept judicial supervision of the legitimacy of the executive's actions might justify the statutory scheme being supplemented where there was no other way of discharging the court's duties under s. 6 Human Rights Act 1998."
Issue (2) – Procedural Fairness and Article 6
"(4) If it appears from the information submitted with a reference under subsection (1) that it may appear to be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall- (a) determine the reference in accordance with subsections (5) to (7); and (b) pending that determination, provisionally include the worker on the list."
The claimants had no opportunity to make representations before their names appeared on the provisional list. The process of receiving evidence and representations was frequently a lengthy one. By section 89, any relevant employer who knew or discovered that an employee or an applicant for employment was listed, provisionally or permanently, was prohibited from employing the worker. The effect of provisional listing was to deprive the worker of employment and the prospect of employment without providing the worker with the opportunity of making any contribution to the decision making process.
"108 The essential defect in the first stage of the process lies in the fact that, as interpreted by the Secretary of State, the CSA does not allow the care worker in any circumstances to make representations before being provisionally included in the list. Although, for the reasons given earlier, I consider that article 6 is engaged in all cases it does not follow that a worker should be given the right to make representations in all cases. The Parliamentary intention of protecting vulnerable adults from the risk of harm from care workers must be respected. The right to a fair determination of a worker's civil rights does not require that the worker be accorded the right to make representations in all cases. Fairness requires a proportionate approach. A balance must be struck between the need to protect vulnerable adults from the risk of physical and psychological harm and the article 6 rights of care workers. There will be cases where the allegations of misconduct are so serious that, if they are true, the care worker is potentially a serious danger to vulnerable adults. In such circumstances the paramount need to protect vulnerable adults from real danger may require the care worker to be included in the list provisionally without being given an opportunity to meet the case against him or her before that step is taken. It will be a matter for the judgment of the Secretary of State to decide whether it is necessary to include a worker in the POVA list without giving him or her an opportunity to make representations. In making this judgment the Secretary of State must take into account all the circumstances of the case but in particular the gravity of the allegations. We were told that in many cases the care worker is not included in the list until the lapse of a considerable time after the date of the reference under section 82(1). This provides some support for the view that, unsurprisingly, a significant number of references do not raise issues which call for urgent and immediate decision. No reason has been advanced on behalf of the Secretary of State to justify the blanket denial to workers of an opportunity to make representations in all cases."
In the House of Lords Baroness Hale, with whom their other Lordships agreed, said at §28:
"..in my view, Dyson LJ was entirely correct in his conclusion that the scheme as enacted in the Care Standards Act 2000 does not comply with article 6(1), for the reasons he gave. The process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment."
It was the danger of irreparable damage to employment rights to at least some, perhaps the majority, of care workers created by the statutory scheme which Baroness Hale considered (§22) constituted the risk of unjustifiable and irremediable interference with civil rights and, thus, engaged Article 6.
"114 I would therefore interpret section 82(4)(b) as requiring the Secretary of State to give workers the right to make representations before he makes a decision under paragraph (b) unless he reasonably considers that the resultant delay would place a vulnerable adult at risk of harm."
Baroness Hale called this the "Wright exception". At §29 she said:
"There may well be cases where the need to protect the vulnerable is so urgent that an "ex parte" procedure can be justified. But one would then expect there to be a swift method of hearing both sides of the story and doing so before irreparable damage was done..."
She was unable to accept that the scheme as operated with the "Wright exception" removed unfairness. On the evidence before the House of Lords in most of those cases to which the "Wright exception" had been applied there had still been delays of between three and six months between referral and provisional listing. Baroness Hale continued:
"The problem, it seems to me, stems from the draconian effect of provisional listing, coupled with the inevitable delay before a full merits hearing can be obtained. That cannot be cured by offering some of the care workers an opportunity to make representations in advance, while denying the opportunity to other workers who may have been just as unfairly treated by their former employers."
The House of Lords made the declaration of incompatibility sought.
"220. The court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State's belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of article 5(4) would not be satisfied."
At §59 of his opinion in AF (No. 3) Lord Phillips interpreted the effect of this passage as follows:
"59 …….I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."
Furthermore, procedural fairness for the controlled person was not be measured by the strength of the closed case against him. Procedural fairness was not to be equated with a just result. At §§62 and 63 Lord Phillips identified the policy considerations in favour of the supremacy of a fair procedure even where the closed case provided overwhelming evidence of "reasonable grounds for suspecting involvement….in terrorism-related activity". At §64 he continued:
"64 The best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed. Both our criminal and our civil procedures set out to achieve these aims. In some circumstances, however, they run into conflict with other aspects of the public interest, and this is particularly the case where national security is involved. How that conflict is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament. That law now includes the Convention, as applied by the HRA . That Act requires the courts to act compatibly with Convention rights, in so far as Parliament permits, and to take into account the Strasbourg jurisprudence. That is why the clear terms of the judgment in A v United Kingdom resolve the issue raised in these appeals."
"83. As previously noted, Article 6 in its civil "limb" applies only to proceedings determining civil rights or obligations. Not all interim measures determine such rights and obligations and the applicability of Article 6 will depend on whether certain conditions are fulfilled.
84. First, the right at stake in both the main and the injunction proceedings should be "civil" within the autonomous meaning of that notion under Article 6 of the Convention (see, inter alia, Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, §39, Series a no. 301-B; König v. Germany, 28 June 1978 §§89-90, Series A no. 27; Ferrazzini v. Italy [GC], no 44759/98, §§24-31, ECHR 2001-VII; and Roche v. United Kingdom [GC], no 32555/96, §119, ECHR 2005-X).
85. Second, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable.
86. However, the Court accepts that in exceptional cases – where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process – it may not be possible immediately to comply with all of the requirements of Article 6. Thus, in specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensible and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceeding at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measure in question."
"7. The Security Service assesses that…relocation from London is necessary at this time, primarily to restrict his ability to contact extremist associates and disrupt any plans for further terrorism-related activity. Further, the relocation will restrict [his] ability to travel to Somalia, possibly alongside his extremist associates, in order to engage in terrorism-related activity and restrict his ability to abscond.
8. The Security Service assesses that in the absence of a move away from his associates and the London area the likelihood of [him] contravening the terms and conditions of his control order are significantly increased."
The statement concluded:
"19. The Security Service considers that the relocation is necessary and there are no other adequate measures which could be taken in order to protect the public from the risk posed by [BX]. If [BX] were to remain in London, albeit on a control order, it is assessed that any obligations, even those considered most disruptive, would not be sufficient to restrict [BX] from contacting extremist associates with a view to furthering his own, or that of his associates, involvement in terrorism-related activity. Further, the Security Service assesses that such obligations would not be sufficient to restrict [BX] from contacting his extremist associates, with a view to travelling oversees to engage in terrorism-related activity.
20. The Security Service considers that relocating [BX] from London is the only way to sufficiently manage the risk that [he] poses, in combination with the other obligations imposed as part of [his] control order. As previously stated, [the identified town] was identified as being the most suitable place outside of the London area to which [he] could be moved."
"(3) Rules of court made in exercise of the relevant powers must secure—…(d) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;(e) that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;(f) that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest…"
The rules made under paragraph 4(3) include the following:
(1) The Secretary of State –(a) must apply to the court for permission to withhold closed material from a relevant party or his legal representative in accordance with this rule; and(b) may not rely on closed material at a hearing on notice unless a special advocate has been appointed to represent the interests of the relevant party.
(2) The Secretary of State must file with the court and serve, at such time as the court directs, on the special advocate –(a) the closed material;(b) a statement of his reasons for withholding that material from the relevant party; and(c) if he considers it possible to summarise that material without disclosing information contrary to the public interest, a summary of that material in a form which can be served on the relevant party.
(3) The Secretary of State may at any time amend or supplement material filed under this rule, but only with –(a) the agreement of the special advocate; or(b) the permission of the court.
Consideration of Secretary of State's objection
(1) This rule applies where the Secretary of State has –(a)…(b) applied under rule 76.28 for permission to withhold closed material.
(6) Where the court gives permission to the Secretary of State to withhold closed material, the court must –(a) consider whether to direct the Secretary of State to serve a summary of that material on the relevant party or his legal representative; but(b) ensure that no such summary contains information or other material the disclosure of which would be contrary to the public interest.
(7) Where the court has not given permission to the Secretary of State to withhold closed material from, or has directed the Secretary of State to serve a summary of that material on, a relevant party or his legal representative –(a) the Secretary of State shall not be required to serve that material or summary; but(b) if he does not do so, at a hearing on notice the court may –(i) if it considers that the material or anything that is required to be summarised might be of assistance to the relevant party in relation to a matter under consideration by the court, direct that the matter be withdrawn from its consideration, and(ii) in any other case, direct that the Secretary of State shall not rely in the proceedings on that material or (as the case may be) on what is required to be summarised.
(8) The court must give permission to the Secretary of State to withhold closed material where it considers that the disclosure of that material would be contrary to the public interest."
(1) Examination of the open material including the security assessment which was said to justify the modification;
(2) Examination of the open material to assess the extent to which disclosure already made informed the controlled person of the factual assertions on which the Secretary of State relied to support the security assessment and thereby to justify the modification;
(3) Examination of the closed material to identify the full range and detail of the factual assertions and supporting evidence on which the Secretary of State relied to support the security assessment and thereby to justify the modification;
(4) Reaching a judgement as to what further disclosure was required from the closed material (whether in summary or redacted form or otherwise) to enable the controlled person to give instructions and, if appropriate, to challenge each of the factual assertions upon which the Secretary of State relied to support the security assessment and thereby to justify the modification.
Issue 1 – Jurisdiction
Issue 2 – Procedural Fairness and Article 6
The Secretary of State
Lord Justice Maurice Kay
Master of the Rolls