ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THOMAS
LORD JUSTICE HOOPER
|- and -
|Secretary of State for the Home Department
Mr Tim Eicke (instructed by Treasury Solicitors) for the Respondent
Hearing date: 11 March 2011
Crown Copyright ©
Lord Justice Thomas:
"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.
"(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.
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.
"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."
The decision of the judge: consideration of the position at the time of the court's determination
"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 1st 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 2nd 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
The evidence in relation to the position at the time that the Home Secretary made the decision
"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.
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.
"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.
Involvement in terrorist related activity
Conclusion in relation to the control order as originally made
Should the matter be remitted to the High Court?
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.
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  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  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.
The modification of the order
Provision of the draft judgment
The order to be made
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:
Lord Justice Sedley: