England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
SAUNDERS J
[2009] EWHC 264 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/04/2011

Lord Justice Thomas:

1. The appellant (BM), a 38 year old British national born in Sheffield and his brothers A and B were designated in August 2007 under the Terrorism (United Nations Measures) Order 2006 on the basis there were reasonable grounds to suspect that they were "persons who commit, attempt to commit, participate in or facilitate the commission of acts of terrorism". Designation under that Terrorism Order had the effect of subjecting them to very substantial controls over their finances. All three were re-designated in 2008.
2. On 30 April 2009, the respondent (the Home Secretary) applied to Ouseley J under s.3 of the Prevention of Terrorism Act 2005 (the Act) to make a non-derogating control order in relation to BM. s.2(1) specifies the conditions that have to be satisfied before such an order can be made:

"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."

Permission was granted and the order was made by the Home Secretary. It was served on BM on 1 May 2009.

3. As soon as permission was granted the court had to give directions for a hearing at which the function of the court is, under s.3(10) and (11) to:

"(10) … 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.

(11) In determining –

….

(b) the matters mentioned in subsection (10),

the court must apply the principles applicable on an application for judicial review."

If the court determines that the decision is flawed, then by s.3(12), its only powers are to quash the order, quash one or more of the obligations imposed by the order or to give directions to the Secretary of State to revoke the order or to modify the obligations imposed by the order.

4. The hearing did not take place until 26 January 2010. The delay appears to have been caused by an unsuccessful attempt by the Home Secretary to modify the control order by requiring BM to live in Leicester and by the process of discovery which had to comply with the provisions of Part 76 and the requirements set out in Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28. Evidence was heard by the judge, including evidence from Ms Hadland (a Home Office official). The judge concluded that the order and its conditions should be upheld.
5. During the course of closing submissions in the hearing on 1 February 2010 the Home Secretary made a further modification to the order requiring BM to relocate to Bristol. I will return to consider that modification and how it was dealt with by the judge at paragraph 30 below.
6. It is a criminal offence under s.9 of the Act to contravene, without reasonable excuse, an obligation imposed by a control order. Criminal proceedings have been brought against BM for contravention of the control order; these were adjourned pending this appeal on the validity of the control order.
7. Permission to appeal was initially refused but granted on an oral application by Maurice Kay LJ. Over one year after the judgment was handed down on 16 February 2010, the matter came on for hearing in this court.
8. The challenge that is made by Ms Dinah Rose QC, on behalf of BM, is that the judge failed to approach the issues under s.3(10) in accordance with its provisions and with the decision of the Court of Appeal in SSHD v MB [2006] EWCA Civ 1140, [2007] QB 415.

The points of time at which the Home Secretary's decision has to be reviewed by the court for the purpose of determining whether it is flawed.

9. It is, as Ms Rose QC submitted and as was accepted by Mr Eicke on behalf of the Home Secretary in the course of the hearing, clear that on the plain and ordinary reading of s.3(10) the task of the court is to determine whether the decision of the Home Secretary to make a control order was flawed at the time the control order was made. The court has to review the evidence before the Home Secretary at the time the control order was made and the reasons given by her. Thus, for example, if on a review of the evidence put before the court it was clear that the evidence before the Home Secretary at the time of the making of the control order and the reasons relied upon by her did not amount to reasonable grounds for suspecting that an individual had been involved in terrorism related activity, the court would be bound to set aside the decision. That would be so even if by the time of the hearing the Home Secretary had obtained new evidence which would give her good reasons for making an order, and which a court concluded would give her reasonable grounds for suspecting that the individual had been involved in terrorism related activity. In short, the validity of the order has, in the first instance, to be considered by reference to the evidence before the Home Secretary and her reasons at the time the control order was made. The importance of that is obvious because, as I have set out above, under s.9 of the Act it is a criminal offence to contravene an obligation imposed by a control order. If the decision was flawed when made, Parliament could not have contemplated that subsequent events could be used to validate a flawed decision and thereby secure the conviction of a person who had contravened the order without reasonable excuse, when at the time the order was made it was not validly made.
10. Although the plain wording of the Act requires the court to determine whether the decision is flawed at the time the control order was made, this court in MB determined that because of the requirement of the Convention, s.3(10) of the Act could not be read so as to restrict the court when addressing a human rights issue to consideration of whether the Home Secretary had reasonable grounds for so doing solely at the time the control order was made. The court concluded that it was the duty of the Home Secretary to keep the decision to impose a control order under review; that a purposive approach to s.3(10) required the court also to determine whether the continuing decision of the Home Secretary to keep the order in force was flawed. The court concluded at paragraph 46:

"For these reasons we consider that section 3(1) 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."

11. It is therefore clear that in determining whether a decision is flawed a court must carry out a two stage examination; it must first determine whether the decision was flawed at the time the control order was made and must, if it was not flawed, then determine whether the continuing decision to maintain the control order is flawed as at the time of the court's determination.

The decision of the judge: consideration of the position at the time of the court's determination

12. In his judgment, Saunders J recorded at paragraph 6 that it was accepted before him that he had to consider whether the decision of the Home Secretary was flawed as at the time of the court's determination. He referred to paragraph 46 of the judgment in MB. It is not clear to me how what is now accepted to be an error came to be treated as common ground before the judge.
13. The judge then reviewed the extensive evidence against BM at paragraphs 10-40 of his judgment. The evidence related to matters primarily in 2001 to 2004 and what the judge considered was supporting evidence of continued activity up to and including events immediately prior to the making of the Terrorism Order in August 2007. He concluded at paragraph 41 that the Home Secretary had reasonable grounds for suspecting that BM had been involved in terrorism related activity; he listed the specific matters which included explosives training in the Kashmir area, being in contact in Pakistan with a senior Al Qaeda leader, being concerned in the transfer of funds to Pakistan to be used for terrorist purposes, providing equipment to facilitate terrorist activity in Pakistan, leading a group in Ilford involved in promoting terrorism with his brothers A and B, travelling to Pakistan on a number of occasions on trips which at least in part were connected with terrorist activity and expressing an interest in being involved in fighting in Afghanistan.
14. The judge then turned to consider whether the making of the control order was necessary for the purpose of protecting members of the public from a risk of terrorism. His conclusion at paragraphs 43 to 45 of his judgment was:

"43. [BM] argues that a Control Order is not necessary because the matters relied on are historical and the evidence does not support the inference that he presently has any intention of involving himself in terrorist activity, and also, as the matters relied on by the [Home Secretary] were known to him at the time of the designation under the Terrorism Order in August 2007, if it was not necessary to make the Order then, then it cannot be now.

44. On the evidence before the [Home Secretary], BM was involved in terrorist activity from 2001 until the making of the direction of the Terrorism Order. He has been subject to the conditions of this Control Order since 1^st May 2009. While there are cases where a final cessation of activities can be implied from a significant period when there has been no terrorist related activity, the material does not exist to draw that inference in this case. The clear inference in this case, on the basis of the reasonable suspicion held by the [Home Secretary] as to BM's activities, is that he will continue those activities if under no restraint.

45. While [BM]'s 2^nd argument has some merit it ultimately fails. The Act gives the [Home Secretary] a discretion to make a Control Order if (a) and (b) are met. The fact that he didn't make one until May 2009 does not mean that (a) and (b) were not met prior to that date. There may be all sorts of operational reasons why an Order was not made earlier. I must look at the situation now and consider whether or not an Order is necessary. On the basis of the matters for which there are reasonable grounds for suspicion, [BM] represents a considerable danger to public safety. He is an organiser; he has shown that he has the means to contact senior Al Qaeda figures and he has had explosives training. I have no doubt that, acting, as I must, on the matters where reasonable suspicion has been established, that a Control Order is necessary to protect the public."

The issue for determination in this court

15. It is clear, as was submitted by Ms Rose QC and in the result not disputed during the course of the hearing before this court, that the judge throughout his judgment approached the issues on the basis that he was determining whether the decision of the Home Secretary was flawed as at the time of the hearing before him and not at the time that the Home Secretary made the control order. It appears that he did so because it was accepted before him that that was the correct approach –see paragraph 6 of this judgment.
16. As I have set out, it became common ground before us that the judge had first to determine whether the decision of the Home Secretary was flawed at the time the control order was made. As the judge did not do that, it is necessary for this court to consider whether on the evidence before us the decision was flawed.

The evidence in relation to the position at the time that the Home Secretary made the decision

17. In the statement served upon BM when the control order was made the necessity for making the control order was advanced on the following basis:

"The security service considers that it is necessary to impose a control order on [BM] who has had a long-standing involvement in terrorism-related activities given

BM's continued terrorism-related activity notwithstanding the designation; and

the security service's assessment that [BM] has travelled to Pakistan to participate in terrorism-related activity and would seek to do so again. It is considered that there is no other adequate measure that could be taken to protect members of the public from the risk of terrorism-related activity."

From the evidence before this court it would appear that the Home Secretary considered that the designation under the Terrorism Order made in August 2007 was insufficient to protect the public, as BM had continued to be engaged in terrorism related activity after that making of the designation. There was a further paragraph in the statement served on BM that this referred to his continued activity with his two brothers. The statement of Ms Hadland made at about the same time contained a paragraph about the reasons, but it added nothing further.

18. However, as a result of Ouseley J's ruling on 17 December 2009 in relation to disclosure the Security Services served a third statement on 8 January 2010, "in order to provide open gists" to BM. There were four relevant paragraphs in that statement. These referred to the fact that BM's brothers, A and B, were not currently abiding by the controls imposed on them as a result of their designation under the Terrorism Order; A and B were concealing their whereabouts from the authorities; because of the past history of co-operation between the brothers, it was, in the assessment of the Security Services, likely that BM would have been involved in A and B's evasion of anti-terrorist measures. It was made clear that the disappearance of A and B was of concern since they could be anywhere, even abroad and free from the controls consequent upon their designations under the Terrorism Order; they were likely to be engaged in terrorism. Considering the strength of the relationship between BM and his two brothers and the nature of their previous activities, BM was likely, in the assessment of the Security Services, to be aware of his brothers' whereabouts and activities.
19. It seems clear that that evidence was before the Home Secretary at the times he made the control order; this court does not know what other material, if any, was relied on. However, it seems to me that this court has to determine the question on the evidence before it. On that evidence, I have concluded that the decision to make the control order was flawed as it could not be justified as necessary:

i) It is clear from paragraph 44 of the judgment of the judge, which I have set out at paragraph 14 above, that the judge found that BM was engaged in terrorism activity from 2001 until the making of the Terrorism Order in August 2007. He made no finding that BM was engaged in any terrorism related activities thereafter, although as set out in paragraph 17 above, the Home Secretary had asserted in the statement served when the control order was made that he was.

ii) The judge also found at paragraph 44 that the clear inference was that BM would continue terrorist activities unless restrained. The key question in determining whether the control order was necessary was therefore, in the light of those findings, whether the designation under the Terrorism Order in August 2007 was insufficient to protect the public.

iii) There was no detail of any further matter relied on by the Secretary of State that had occurred after BM's designation under the Terrorism Order in August 2007 other than the information contained in the third statement of the Security Services to which I have referred at paragraph 18 above. According that degree of respect to the decision of the Home Secretary to which it is entitled, though subjecting it to careful scrutiny, I do not consider that it discloses any basis for considering it necessary to impose a control order at the time the control order was made. If the Home Secretary relied only on the evidence set out in the third statement, it was too vague and speculative and set out an insufficiently firm basis for concluding that a control order was necessary in addition to designation under the Terrorism Order. In saying so, I emphasise that this is a judgment I reach solely on the basis of the material before me, as there is no other, and in the full knowledge that it is contended on the Home Secretary's behalf that there may be other material in the closed evidence.

iv) Although the evidence in relation to the disappearance of BM's brothers A and B and the Security Services' assessment that the designation of BM under the Terrorism Order in August 2007 was not sufficient was before the judge, the judge did not rely upon that as being a reason why a control order was necessary in 2009 or at any time thereafter, including the time at which the control order was made. He simply concluded that there might be all sorts of operational reasons why a control order was not sought earlier. There is no reference in the open judgment to any reasoning contained in a closed judgment, which there would have been if there was any further reasoning. It is therefore difficult to see how on the face of the open judgment anything in the closed judgment could have been material to the issue of whether the control order was necessary.

v) Part of the judge's judgment was in a confidential annex to the approved judgment. In that annex, which can be made public to the following extent, the judge considered it unlikely that BM had no idea that his brothers A and B were going to disappear and had no idea as to their present whereabouts. He did not rely on BM's association with his brothers and their disappearance as a reason why the control order was necessary. He made no finding that BM was involved in the activities of his brothers or their evasion of the measures taken against them under the Terrorism Order.

20. This appeal was brought before the court solely on the basis of the open judgment given by Saunders J. There is a closed judgment, but that was not put before us. In a letter to BM's solicitors on 3 November 2010 the Treasury Solicitor noted that BM would submit that, if he was successful in the Court of Appeal, the control order should be quashed. The letter continued:

"The Secretary of State wishes to reserve her position to seek to rely on CLOSED material, if in her view it becomes necessary, to make CLOSED submissions on the issue of the appropriate remedy that should be ordered, in the event that the Appellant is successful in his appeal. After all, unlike in AN the control order against the Appellant remains in force and the present appeal is merely one step in the proceedings which, overall, need to comply with Article 6. If, contrary to the Secretary of State's position, the Court of Appeal were to find that the judge has erred it will be for the Court of Appeal or the judge on remittal to consider whether there is further material (disclosure of which is contrary to the public interest) in relation to which the Secretary of State needs to be put to her election. It must be obvious that this can only be done by reference to CLOSED material. As a result, the Secretary of State will make an application to the Court of Appeal for permission to rely on CLOSED material under CPR 76.28, if it should become necessary to do so."

As the closed judgment and the closed material were not before us on this hearing, I do not see how in this appeal this court could take into account the closed material in assessing at this stage whether the control order was necessary.

21. For these reasons, therefore, I have concluded that on the open evidence before this court the control order could not be justified as necessary at the time the control order was made.
22. There was no new matter disclosed in the open evidence as to anything which occurred between 30 April 2009 when the control order was made and the handing down of the judgment by Saunders J in February 2010 which showed that a control order was necessary. I would therefore have found the greatest difficulty holding that, on the basis of the information set out at paragraphs 43-45 of the judgment, a control order was necessary. Those reasons are in substance those I have already given.

Involvement in terrorist related activity

23. I have, however, only considered the issue of whether a control order was necessary; I have not considered, because I do not think it necessary in the light of that conclusion to do so, the further argument made by Ms Rose QC that, if paragraphs 43-45, which I have set out, are read carefully, the judge had in fact made findings inconsistent with there being reasonable grounds for suspecting BM was involved in terrorism related activity at the time of his decision.

Conclusion in relation to the control order as originally made

24. In the light of the common ground before this court that the judge was in error in not considering whether the decision of the Home Secretary was flawed at the time the control order was made, the decision of the judge must be set aside. For the reasons I have given, I have concluded on the open evidence before the court that the decision to make the control order was flawed.

Should the matter be remitted to the High Court?

25. It was submitted on behalf of the Home Secretary, both at the hearing and in written submissions made after the conclusion of the argument, that this court should remit the matter to the High Court for it to be able to consider the issue in the light of the decision of this court, on the whole of the open and closed evidence. It was contended that it was the court, as distinct from the Home Secretary, which had to assess whether evidence, which it was contrary to the public interest to disclose, should be disclosed so as to ensure that the process for determining the validity of the control order was compatible with the right to a fair trial. This was an ongoing process and, if at any stage it became clear that further disclosure was needed to make the proceedings fair, then the court was required under CPR Part 76.29 to consider whether further disclosure should be made and put the Home Secretary to her election to disclose it or to withdraw the matter to which it related.
26. The Home Secretary's view was that at the time of making the control order the order was necessary on the whole of the open and closed evidence. The present position was therefore, it was submitted, not one where the Home Secretary could produce further evidence for consideration by the court; the issue was how much of the open and closed evidence which was already before the court had to be disclosed to BM. Although it was the Home Secretary's position that sufficient disclosure had been made, it was for the court on the totality of the evidence, including the closed evidence, to determine whether the decision to make a control order was flawed; there was no obligation on the Home Secretary to disclose sufficient material to enable the court to determine whether on the open material the decision was flawed. This court should therefore remit the issue for the High Court to consider the question on the whole of the open and closed material, making such further disclosure as it considered necessary.
27. The submission that the matter should be remitted was opposed by BM:

i) As there was no respondent's notice, the Home Secretary could not seek to uphold the judgment on reasons other than those set out in the judgment; it was therefore not open to her to ask the court to make additional findings or to rely on the closed judgment.

ii) It was for the Home Secretary to be satisfied when making a control order that the requirement that the proceedings be fair could be satisfied by the making of sufficient disclosure. She could not transfer that responsibility to the court.

iii) It would be unjust in all the circumstances to remit the case now.

28. It is, in my view, necessary to have regard to the following matters in relation to the Home Secretary's submission that the matter be remitted:

i) As neither the closed judgment nor the closed evidence has been provided to this court, this court is not, in my view, in a position to judge whether further disclosure should be made. As I have observed at paragraph 19.iv) above, there is no reference in the open judgment to other matters in the closed judgment which the judge took into account in reaching his decision.

ii) I cannot accept, without further argument, the submission that if there is insufficient in the open material which demonstrates that the decision of the Home Secretary was not flawed, then it is for the court, of its own motion, to direct the Secretary of State to disclose more of the material (assuming there is more) to BM so that it can be seen that the decision is not flawed. In AN v SSHD [2010] EWCA Civ 869, Maurice Kay LJ held at paragraph 31:

"Moreover, I cannot escape the conclusion that it is unlawful for the Secretary of State to begin to move towards the making of a control order if, in order to justify it, he would need to rely on material which he is not willing to disclose to the extent required by AF(No.3), regardless of his understanding of the law at the time. If I were wrong about that it would mean that the Secretary of State could lawfully place significant restrictions on a person's liberty without that person ever being able to discover the basis for the Secretary of State's decision. It would be beyond scrutiny or challenge. This would run counter to the unappealed decision of the Court of Appeal in Secretary of State for the Home Department v MB [2007] QB 415 that the task of the court is to determine whether the decision to make the control order was flawed at the time it was made and thereafter (see paragraphs 40-46). For these reasons, I reject the submission that the orders only became flawed from the time of, or in the approach to, the section 3(10) hearings."

Although we have not had the benefit of full argument, it seems to me that, if the submission of the Secretary of State is correct, the court would be put in the position of deciding not only whether the decision to make the control order was flawed, but how much of the evidence had to be disclosed to prove that it was not flawed.

iii) It has been clear at least since the grant of permission by Maurice Kay LJ in the present appeal that it was being contended on behalf of BM that the judge had not determined whether the decision to make a control order was flawed at the time the control order was made and that there was no evidence in the open material which would show that the decision was not flawed. No steps were taken by the Home Secretary to address the question by raising the issue of whether further disclosure should be made.

iv) Although the Treasury Solicitor wrote the letter on 3 November 2010 which I have set out at paragraph 20, no respondent's notice was served. If it had been, then the issues which were canvassed during the hearing and in the submissions served after the conclusion of the hearing could have been examined by the court in the light, if appropriate, of the closed judgment, the closed material and the assistance of the special advocate.

v) It is now over 22 months since the control order was first made. If the matter were to be remitted, there would be undoubtedly significant further delay while issues of further disclosure were, in the light of this judgment, considered. If the Home Secretary had conceded, as he did in the course of the hearing, that the judge had failed to consider whether the initial decision was flawed, the position might have been different. A re-hearing in the High Court could have taken place by now. The very significant delay that has already occurred and the further time that would elapse whilst further disclosure was considered are not consistent with the expedition that cases of this type require. I consider this to be an overriding consideration.

vi) If the Home Secretary considers the conditions for the making of a control order are still satisfied, then she can take steps immediately to impose another control order and the interests of the public can be protected in the meantime.

vii) Even though any new order might be imposed immediately, so that there is no gap, there will be a very significant benefit to BM, as the criminal proceedings brought against him will rightly fall to be dismissed.

29. In those circumstances, it seems to me that it would not be just to remit the case for further consideration in the High Court, as the interests of the Home Secretary can be met in the manner I set out at paragraphs 37-38 below.

The modification of the order

30. As I have set out in paragraph 5 above, the Home Secretary modified the control order by requiring BM to relocate to Bristol after the conclusion of the evidence before the judge and in the middle of the submissions. The judge was due to hear a long-fixed trial which it was impossible to transfer or put before another judge. For very understandable reasons, he therefore wished the issues in relation to the modification of the control order to be dealt with at a later date.
31. However, the means by which he sought to achieve this was to give a final judgment in relation to the control order and the terms of the control order as they existed prior to the modification made in January 2010 and directing that the modification be considered by way of appeal under s.10(1) of the Act. This had the consequence that such a proceeding could be dealt with before another judge.
32. In my view this was not permissible. As I have set out, under s.3(10) (referred to at paragraph 3 above) the judge was required to determine whether the decision on each of the obligations imposed by the order was flawed. The judge was required not only to do that at the time the Home Secretary made his decision, but as the terms of the order had been modified, to consider any extant modifications at the time the court made its decision; this is an inevitable consequence of the decision of this court in MB.
33. It is clear, and was accepted by Ms Rose QC, that a judge who was faced with a modification made whilst he was considering the original order would be entitled as a matter of case management to determine whether the original decision satisfied the conditions under s.2 (a) and (b) at the time the order was made and at the time of the court's determination and to postpone his consideration under s.3(10)(b) on the modification of the obligation which had recently been made. However, it would have been for him to determine that as part of the case reserved to him. In my judgement, therefore, the judge was not entitled to do what he did; the only practical difference it makes is that the matter would had to have been dealt with by him. It is, however, not necessary to make any consequential orders as in my judgement the matter should not be remitted for the reasons I have given.

Provision of the draft judgment

34. After the conclusion of the hearing, the Treasury Solicitor wrote to the Court on 18 March 2010 asking the court to impose an embargo of at least 5 working days before the release of the judgment. It was requested that during that period either the draft of the judgment or the notification of the decision be communicated to those involved in counter-terrorism in the Home Office, the Metropolitan Police and Avon and Somerset Police as well as Home Office Ministers, Senior Officials, the Security Service and the Home Office Press Office. There was no objection to counsel and solicitors for BM seeing the draft, but BM should not be allowed to see it. The reasons given for seeking the embargo were that the Home Secretary might wish to seek permission for a new control order to be made and for the police and the Security Services to put measures in place to lessen the risk of BM absconding.
35. The imposition of such an embargo was opposed by those acting for BM. It was submitted that the purpose of the court providing a judgment in draft was to enable typographical or factual errors to be corrected and consequential orders to be agreed or submissions made; it was not provided so that parties could change their position or to enable one party to gain an advantage over the other. S.2(2) of the Act prevented the Home Secretary from making a new control order until either the court had decided that the present order be revoked or where the effect of the revocation had been postponed for the purpose of giving the Home Secretary an opportunity to decide whether to exercise her own powers to make a control order. The Home Secretary could not in any event use the draft judgment for the purposes of applying to the court, as it was not a final judgment and could be altered by the court before handing down.
36. In my view experience has shown that the provision of a draft judgment to anyone other than solicitors, counsel and the parties on the terms of strict confidentiality has produced undesirable consequences. There may be exceptional circumstances where this rule should not be followed; an example is the necessity for checking in a case where there has been closed evidence that the judgment does not contain any matter which it is contended may be contrary to public interests to disclose, such as interests of national security. However save in such circumstances the draft should only be provided on the basis that it is confidential to solicitors, counsel and the parties only. There are other ways to meet the rare case where legitimate interests need to be protected.

The order to be made

37. The Home Secretary has, in my view, legitimate interests which need to be protected in the interests of national security. This is a case where the appeal has been allowed because the judge, with the acquiescence of the parties before him, did not determine whether the decision was flawed at the time the Home Secretary made her decision. This court has determined that issue on the material before it, but it has not seen the closed evidence. The primary reason for not remitting the matter is the delay which would make it unjust to remit it if the legitimate interests of the Home Secretary could be met in another way.
38. I would therefore exercise, as part of the terms on which I would decline to remit that matter, the power under s.3(12)(c) of the Act to give directions to the Secretary of State that the Order be revoked 48 hours from the time of the handing down of the judgment with effect from the time the control order was made.
39. After a draft of our judgments had been provided to the parties a submission was made to us on behalf of BM that we should declare the control order void ab initio. I replied on behalf of the court in the terms set out in the following paragraph.
40. The court reached the conclusion that the control order was flawed only on the open evidence. It did not consider the closed evidence. There was a dispute about remission. The court considered it was unnecessary to remit if the legitimate interests of the Home Secretary could be met. The court met those interests by directing that the Home Secretary revoke the order. The court wishes to make clear that the Home Secretary must revoke the order 48 hours after handing down with effect from the time the control order was originally made. The court considers that the powers under the Act are wide enough for it to do this. It considers this is a more appropriate course as the court has not examined the closed evidence and therefore has not decided whether, on the totality of the open and closed evidence, the control order was flawed. It has decided against remission for the reasons set out at paragraph 28 above, particularly the delay. In those unusual circumstances it considers that the interests of all the parties can be best met in this way. The prosecution of BM cannot be continued as the control order will have been revoked from the date it was made, but the Home Secretary will have 48 hours in which to obtain a new order if she considers it necessary to do so.

Observations

41. There are three further observations which I consider it necessary to make in the light of the argument before us:

i) It is essential that cases of this kind are brought to trial and any appeal is heard in a period measured within a vastly shorter timescale than the present proceedings have taken to reach this court. It is simply not right that the proceedings to determine the validity of this control order with its significant impact on the civil liberties of BM have lasted 22 months.

ii) I have touched briefly on the issue of the respective responsibilities of the court and the Home Secretary as to the requirement of disclosure in the light of the fact that this appeal proceeded only as an appeal from an open judgment with no directions having been given by the court as to what was to happen if the court concluded that the order could not be upheld on the open judgment. If, in the future, it is proposed that an appeal proceed only on the open judgment, then it is highly desirable that if, as in the present case, the Home Secretary wishes to rely upon the closed judgment or closed material in the event that the court allows the appeal on the open judgement, there is, in advance of the hearing of the appeal, a directions hearing before a member of the constitution which is to hear the appeal so that detailed consideration can be given to the best way to proceed. This will inevitably require the presence of the special advocate.

iii) The judge's judgment had a confidential annex. It is now accepted that there are circumstances in cases such as this in which certain conclusions and certain evidence can only be set out in a closed judgment. However, it seems to me, that where matters were dealt with in open court, it is not permissible to put them into an annex that is confidential to the parties. The objective in this case was to protect the anonymity of BM and his brothers; the judge was plainly right to protect their anonymity. As is apparent from this case, this could, in my view, have been done without the need for a confidential annex, provided the judge was given appropriate assistance by counsel. There cannot properly, in my view, be an intermediate category of judgment. There should only be an open judgment and where necessary and authorised by law, a closed judgment.

Lord Justice Hooper:

42. I agree.

Lord Justice Sedley:

43. I also agree.