QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR KEIR STARMER QC and MR ALI BAJWA (instructed by Messrs Arani & Co (and MR BAJWA alone on this occasion) appeared on behalf of the RESPONDENT
MR MICHAEL SUPPERSTONE QC and MISS JUDITH FARBEY (instructed by the Treasury Solicitor) (and MISS FARBEY alone on this occasion) appeared on behalf of the SPECIAL ADVOCATE
Crown Copyright ©
Wednesday, 12th April 2006
MR JUSTICE SULLIVAN:
"An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity; to make provision about appeals and other proceedings related to such orders; and for connected purposes."
Section 1(1) defines a control order thus:
"In this Act 'control order' means an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism."
"(1) In this Act 'terrorism' means the use or threat of action where -
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it -
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section -
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a part of the United Kingdom, or of a country other than the United Kingdom."
"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."
"(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
(d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity;
and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."
"... any obligations that the Secretary of State ... considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism-related activity"
(see subsection 1(3)) and may include, in particular (see subsections 1(4) to (7)):
"4(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."
"(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and
(b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity."
(see subsections 2(4) to (8)).
"It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate."
"(1) The Secretary of State must not make a non- derogating control order against an individual except where --
(a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order and has been granted that permission;
(b) the order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission [urgent cases]; or
(2) Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and --
(a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed;
(b) the court may give that permission unless it determines that the decision is obviously flawed; and
(c) if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.
(3) and (4) [urgent cases]
(5) The court may consider an application for permission under subsection (1)(a) ... --
(a) in the absence of the individual in question;
(b) without his having been notified of the application or reference; and
(c) without his having been given an opportunity (if he was aware of the application or reference) of making any representations to the court;
but this section is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference.
(6) [urgent cases]
(7) The directions given under subsection 2(c) ... must include arrangements for the individual in question to be given an opportunity within 7 days of the court's giving permission or (as the case may be) making its determination on the reference to make representations about --
(a) the directions already given; and
(b) the making of further directions.
(8) and (9) [urgent cases]
(10) On a hearing in pursuance of directions under subsection (2)(c) ... the function of the court is to 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 --
(a) what constitutes a flawed decision for the purposes of subsection (2) ... or
(b) the matters mentioned in subsection (10),
the court must apply the principles applicable on an application for judicial review.
(12) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) ... that a decision of the Secretary of State was flawed, its only powers are --
(a) power to quash 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.
(13) In every other case the court must decide that the control order is to continue in force." (emphasis added)
"At the full hearing, the court may confirm the control order (with or without modifications) only if --
(a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;
(b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism;
(c) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and
(d) the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order." (emphasis added)
(a) that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;(b) that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;(c) that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);(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;(g) that provision satisfying the requirements of sub-paragraph (4) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.
(4) The provision that satisfies the requirements of this sub-paragraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court --
(a) if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court, to give directions for securing that the matter is withdrawn from the consideration of that court; and
(b) in any other case, to ensure that the Secretary of State does not rely in the proceeding on the material or (as the case may be) on what is required to be summarised.
(5) In this paragraph 'relevant material', in relation to any proceedings, means --
(a) any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those proceedings; or
(b) the reasons for decisions to which the proceedings relate."
"... disclosure is made contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest."
"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."
"The basis for this decision is:
The Secretary of State believes that you intended to go to Iraq to fight against coalition forces."
"(1) You will reside at [address given] ('the residence') and shall give the Home Office at least 7 days prior notice of any change of residence.
(2) You shall report in person to your local police station (the location of which will be notified in writing to you at the imposition of this order) each day at a time to be notified in writing by your contact officer, details to be provided in writing upon service of the order.
(3) You must surrender your passport, identity card or any other travel document to a police officer or persons authorised by the Secretary of State within 24 hours. You shall not apply for or have in your possession any passport, identity card, travel document(s) or travel ticket which would enable you to travel outside the UK.
(4) You must not leave the UK.
(5) You are prohibited from entering or being present at any of the following:-
(a) any airport or sea port;
(b) any part of a railway station that provides access to an international rail service.
(6) You must permit entry to police officers and persons authorised by the Secretary of State, on production of identification, at any time to verify your presence at the residence and/or to ensure that you can comply with and are complying with the obligations imposed by the control order. Such monitoring may include but is not limited to:-
(a) a search of the residence;
(b) removal of any item to ensure compliance with the remainder of the obligations in these orders; and
(c) the taking of your photograph."
"3. The Secretary of State received and considered the relevant material relating to MB, being the same material as has been delivered to the Court. Having considered the papers and after meeting with relevant officials to discuss this case, the Secretary of State has concluded that there are reasonable grounds for suspecting that MB has been or is involved in terrorism-related activity and that a control order is necessary for purposes connected with protecting members of the public from a risk of terrorism. Therefore, having decided that there are grounds to make such an order against MB, the Secretary of State applies to this court under section 3(1)(a) for permission to make the order.
4. In considering what obligations to impose on MB, the Secretary of State has taken into account all the information before him, including the specific terrorism-related activity that he suspects MB was or is involved in. In addition, he has taken into account the known personal and family circumstances of MB. He is a single male and his immediate family are resident in the UK. The obligations will restrict his ability to travel outside the United Kingdom. However, given the seriousness of the activity that MB has been and is suspected of, the Secretary of State is satisfied that the proposed obligations are necessary to protect members of the public from a risk of terrorism, and that where the obligations interfere with MB's Convention rights, they are proportionate and the least intrusive measure needed to prevent and/or restrict involvement in that terrorism-related activity.
5. MB currently resides with his adult sister. Consideration has been given to any proposed obligation that would or might interfere with his or his sister's Convention rights and whether such interferences outweigh or reduce to any extent the proportionality of each obligation. Insofar as the proposed obligations do still interfere with his or his sister's Convention rights, the Secretary of State considers such interferences to be justified and proportionate, bearing in mind the legitimate aim sought of preventing and restricting terrorism-related activity.
6. Before applying for the making of the control order, the Secretary of State has consulted the Chief Constable of South Yorkshire Police about whether there is evidence available that could realistically be used for the purposes of the prosecution of MB for an offence relating to terrorism. It was the view of the Chief Constable of South Yorkshire Police that MB cannot be prosecuted successfully for such offences."
1. The Security Service considers that:
- MB is involved in terrorism-related activities as defined in section 1(8) of the Prevention of Terrorism Act 2005.
- It is necessary, for purposes connected with protecting members of the public from the risk of terrorism, to make an order imposing obligations on MB.
- The combination of obligations recommended is necessary to reduce the risk posed by MB.
2. MB was naturalised as a British citizen in January 1998, after his mother was granted indefinite leave to remain in the UK.
3. MB is an Islamist extremist who, as recently as March 2005, attempted to travel to Syria and then Yemen. The Security Service assessment is that MB was intending to travel onwards to Iraq.
4. MB attempted to travel to Syria on 1 March 2005 but was prevented from doing so by police officers at Manchester airport. He was examined under Schedule 7 of the Terrorism Act 2000 (TACT) and was found to have a lock knife and knuckle-duster in his luggage. MB stated during interview that he was intending to travel to Syria on holiday and that he would be meeting friends at the airport in Damascus. When questioned further he could not, or would not, provide the names of his friends or any details of them. The interviewing officers expressed the opinion that much of what MB told them was not true and possibly rehearsed. During the interview MB displayed a range of emotions from providing polite co-operation to being defiant and dismissive of questioning.
5. Following MB's interview by the police officers he was then interviewed by a Security Service officer. The officer spoke to MB for approximately 1 hour 30 minutes. Given MB's reluctance to discuss his trip with the police officers the initially discussed broad issues relating to young British Muslims. When the officer broached the subject of MB's travel he was informed that the trip was a holiday and MB did not know anyone is Syria. This was in direct opposition to his previous comments to the police officers. The officer suggested to MB that his lack of plans for his time in Damascus and the Yemeni telephone numbers in his mobile telephone, which he had claimed were Syrian, was strange. Despite being offered the opportunity to explain, MB became sullen and aggressive and refused to answer any further questions. As MB was unwilling to discuss his trip to Syria the officer informed him that the Security Service was aware of his plans to travel to Iraq. What followed was a period of verbal sparring during which MB maintained that the officer's claims were speculation and that the Security Service had no proof. At no point during the interview did MB deny that he was seeking to enter Iraq. The Security Service assessment is that MB was intending to travel from Syria onwards to Iraq.
6. On 2 March 2005, MB was stopped before boarding his flight to the Yemen by the Metropolitan Police at Heathrow airport. MB was examined under Schedule 7 of TACT and questioned in the presence of a duty solicitor. MB stated that he intended to visit his mother's family in Yemen following the disruption by police (at Manchester airport) of his planned visit to Syria. MB asserted that he intended to surprise his family, therefore he had not informed them of his travel, he did however have a friend who would meet him at the airport. When questioned further regarding this individual MB became agitated and would not, or could not, provide contact details for his friend despite stating that he contacted him by telephone. Before his release MB's UK passport was seized by SO13 officers under Section 19 PACE (Police and Criminal Evidence Act) and Common Law.
7. On 7 March 2005 officers from South Yorkshire Police visited MB's mother, MA, at her home address in Sheffield. The officers informed MA that MB had been spoken to by police at Manchester and Heathrow airports and that in light of the fact that he had not used his plane tickets, and had left the airport by rail, the police were concerned for his safety. MA did not appear unduly concerned by this information and stated that MB had left the family home a number of months ago following a dispute with his father. When asked whether MB had considered travelling to Iraq to fight against the coalition forces, MA stated that the fighting in Iraq was over and there was no need to travel there now that the country had 'taken charge of its affairs'. As the interview was closing MB's father AM arrived at the address. He confirmed that he had a difficult relationship with his son but could not contemplate MB's intended travel to Yemen could be construed as an attempt to join the fighting in Iraq. The interviewing officers noted that, at odds with her earlier demeanour, MA became more restless and apparently more concerned for MB whilst AM was present. She even asked the officers for assistance in locating him.
Need to Impose a Control Order
8. The Security Service is confident that prior to the authorities preventing his travel, MB intended to go to Iraq to fight against coalition forces. Despite having been stopped from travelling once, MB showed no inclination to cancel his plans. The police prevented his travel on a second occasion, and seized his passport.
9. Following disruption by the police, MB has not made a concerted effort to reclaim his passport. However, given that SHAREB is an experienced facilitator with the ability to acquire false documentation, the Security Service assesses that his lack of passport will not prevent MB from travelling indefinitely.
10. The Security Service considers that it is necessary, for purposes connected with protecting members of the public, including armed forces abroad, from the risk of terrorism, to make an order imposing obligations on MB. It is considered that there is no other adequate measure that could be taken in order to protect members of the public from the risk of terrorism."
The court's function
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Article 6, Civil or Criminal?
"It can be argued that that part of the order [prohibiting the defendant from entering a particular area or engaging in some activity which is prima facie lawful] affects his civil rights so that Article 6.1 is engaged"."
"... the obligations which can be imposed under control orders potentially interfere with a wide range of rights: the right to respect for private and family life and home under Article 8, freedom of thought, conscience and religion under Article 9, freedom of expression under Article 10, freedom of association under Article 11, and the right to peaceful enjoyment of possessions under Article 1 Protocol 1."
It remains for me to deal with certain other subsidiary points which are advanced. The first is linked to the position in relation to the procedure adopted by the Commission. It is submitted that the proceedings relate to a criminal charge within the meaning of article 6, giving rise to the application of the presumption of innocence, the right to disclosure of the case against them, and the material upon which it is based, to the fullest possible extent. As to this, I agree with the Commission that the proceedings are not criminal. I would, however, accept the fact that the proceedings are civil proceedings within article 6. The proceedings before the Commission involve departures from some of the requirements of article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with article 6 it is necessary to look at the proceedings as a whole (including the appeal before this court). When this is done and the exception in relation to national security, referred to in article 6, is given due weight, I am satisfied there is no contravention of that article."
"(1) This section applies where it appears to the Secretary of State --
(a) that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism; and
(b) that the commission of that offence is being or would fall to be investigated by a police force.
(2) Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism.
(3) If a control order is made against the individual the Secretary of State must inform the chief officer of the police force that the control order has been made and that subsection (4) applies.
(4) It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect."
"It is permissible to consider whether the composite procedure of administrative decision together with a right of appeal to a court is sufficient ... it will be sufficient if the appellant (or reviewing) court has 'full jurisdiction' over the administrative decision ... as established in the landmark case of Bryan v United Kingdom  21 EHRR 342, 'full jurisdiction' does not necessarily mean jurisdiction to re-examine the merits of the case but, as I said in the Alconbury case  2 AC 295, 330, para 87, 'jurisdiction to deal with the case as the nature of the decision requires'."
"The great principle which Bryan decided ... was that 'in assessing the sufficiency of the review ... it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.'"
"A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as Part VII. The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government."
(see paragraph 42)
"Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on the grounds of expediency and to the nature of the complaints made by the Zumtobel Partnership."
(cited in paragraph 88 of Lord Hoffmann's speech in Alconbury).
(1) The order is made by the executive, not by the court. For entirely understandable reasons, this is one of those administrative decisions where there is no prior notice to, or consultation with, the individual who will be subject to the order. Thus, the controlee has no opportunity to make representations, to put his side of the case, or to attempt to influence the decision before it is made. While this is clearly a necessary feature of the control order process, it must be borne in mind when considering whether any potential unfairness is adequately addressed at a later stage in the proceedings.
(2) Although the order is made with the permission of the court, the ability of the court to exercise a supervisory role at the section 3(2) stage is very limited indeed. Its function is to consider "whether the Secretary of State's decision that there are grounds to make the order is obviously flawed" (see paragraph (a)). However, it considers that question upon the basis of the documents filed by the Secretary of State. There is no challenge to the Secretary of State's material because the court may consider the application without the respondent having even been notified of it: see subsection 3(5). Thus, apart from refusing to give permission to make an order containing the most egregious error upon its face, the court can have no significant input at the section 3(2) stage. In making this observation, I do not overlook the fact that Ouseley J made a number of amendments for the purpose of clarifying the obligations imposed by the order. In reality, such minor amendments mark the furthest extent of the court's ability to influence the decision-making process at the section 3(2) stage.
(3) The standard of proof to be applied by the decision taker in making the decision subject to review is very low: reasonable grounds for suspicion, even though the allegation made against the respondent, that he is or has been involved in terrorism-related activity, is a very serious one and may in some cases amount to an allegation that he has committed very serious crimes which would be punishable upon conviction in a criminal court with life imprisonment. Because the allegation against the respondent is very serious, the consequences of the decision for the respondent are equally serious, even if they do not (quite) amount to a deprivation of liberty. It should also be noted that contravention of any of the obligations in a control order without reasonable excuse is a criminal offence punishable with up to five years' imprisonment: see section 9 of the Act.
"a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ... (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of the Act applies; ..."
"My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.
This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or know to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances."
"(a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or
(b) it considers that for some other reason the certificate should not have been issued."
(see subsection (2)).
"46. We accept that those cases illustrate the proposition that the objective judgment of whether reasonable grounds exist depends on the circumstances. Urgency, for example, may make it reasonable to rely on information upon which it would be unreasonable to rely without taking matters further, if more time were available. We accept Mr Gill's submission that the extent, nature, independence and reliability of the evidence are relevant. The extent to which obvious lines of enquiry, which could have been followed, have been ignored is relevant. These cases also recognise the particular difficulties and risks faced in relation to terrorism, which may require urgent action and entail reliance on sources which do not usually appear in court cases. We also accept the general point that what may be reasonable for an arrest for a short period of detention may be insufficient for indefinite detention. It is all the circumstances which are relevant.
47. Mr Gill goes too far however when he submits that the evidence must point 'unequivocally and strongly to the conclusion' that the Appellant falls within section 21. Likewise, he is wrong to suggest that an extremely strong basis for suspicion, with the scope of that word strained to its uttermost limits, was required by the statute.
48. It cannot be construed so as to re-impose requirements which are the subject of the derogation. The test is still whether reasonable grounds for suspicion and belief exist. The standard of proof is below a balance of probabilities because of the nature of the risk facing the United Kingdom, and the nature of the evidence which inevitably would be used to detain these Appellants. Having said that, it does have to be scrutinised carefully and its weaknesses and gaps examined to see if it does provide such grounds or whether suspicion exists or survives because of a failure to investigate matters in obvious ways which would have cast a clearer light, one way or the other, on the point."
"SIAC's task is not to review or 'second guess' the decision of the Secretary of State but to come to its own judgment in respect of the issue identified in section 25 of the 2001 Act."
"... it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made." (emphasis added)
"raises a question which is a matter for evaluation and assessment. But the condition in section 1(1)(a) that the defendant has acted in an anti-social manner raises serious questions of fact, and the implications for him of proving that he has acted in this way are also serious. I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant's conduct is the criminal standard."
(4) In proceedings under section 3 the Secretary of State is able to deploy the whole of his case, relying on evidence which would not be admissible in ordinary criminal or civil proceedings (see CPR 76.26(4) above), and he may adduce any "sensitive" intelligence material in closed documents and closed session. Thus a lower standard of proof is not required because the Secretary of State is unable, because of the constraints of national security, to rely upon certain material in his possession. In cases under section 4, where the Secretary of State is similarly able to deploy the whole of his case, the court must apply the "balance of probabilities" test. The court's power to make derogating control orders may be exercised only in circumstances where there is a public emergency in respect of which there has been a designated derogation from all or part of Article 5: see section 4(7)(c). Since the obligations that may be imposed by derogating control orders are, by their very nature, more severe than those which can be imposed by non-derogating control orders, it follows that the risks to members of the public which a derogating control order is intended to address will be that much greater. Nevertheless, in circumstances where the activities of the controlee may pose a much greater risk to the public, the standard of proof to be applied by the court under section 4(7) makes it clear that the nature of intelligence material and the need to protect national security are not an obstacle to a procedural requirement that the Secretary of State's case for a non- derogated control order should be established on the balance of probabilities.
(5) Not merely does the Secretary of State have to meet a very low standard of proof whilst being able to deploy the whole of his case, including evidence that would otherwise be inadmissible, the procedure enables to the Secretary of State to place a significant part, and in some cases the significant part of his case, before the court in the absence of the respondent and his legal representatives: see the provisions relating to closed material, the court's power to exclude the respondent and his legal advisers, and the appointment and duties of the Special Advocate contained in Part 76 of the CPR (above).
"The Security Service is confident that prior to the authorities preventing his travel [the respondent] intended to go to Iraq to fight against coalition forces" (emphasis added).
"the fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party."
(see paragraph 16). He said this in paragraph 17:
"The European court has affirmed the importance of this principle in criminal cases governed by article 6(1) of the Convention, holding that as a general rule all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument, giving him an adequate and proper opportunity to challenge and question witnesses against him: see for example [authorities cited]. In non-criminal article 5(4) cases the approach of the court has been similar, generally requiring disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of his lawyer and has the opportunity to call and question witnesses: see, for example [authorities cited]. It is quite true, as the board insisted in argument, that the court accepted that these rights were not absolute or incapable of valid qualification. But in Tinnelly, para 72, the court pointed out that any limitations must not 'restrict or reduce the access [to the court] left to the individual in such a way or to such an extent that the very essence of the right is impaired."
"In view of what the European court in Garcia Alva, para 39, called 'the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, I would doubt whether a decision of the board adverse to the appellant, based on evidence not disclosed even in outline to him or his legal representatives, which neither he nor they had heard and which neither he nor they had had any opportunity to challenge or rebut, could be held to meet the fundamental duty of procedural fairness required by article 5(4). 'It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory': Stafford v United Kingdom  35 EHRR 1121, para 68. If the procedure proposed is fully adopted, the appellant's rights under article 5(4) could be all but valueless. The Secretary of State might have to make the difficult choice between not disclosing information to the board and ensuring effective protection of its source. But I would decline the appellant's invitation to rule, at this stage, that the adoption of the proposed procedure is necessarily incompatible with article 5(4). The practice of the European court is to consider the proceedings in question as a whole, including the decisions of appellate courts: Edwards v United Kingdom 15 EHRR 417, para 34. Thus its judgment is almost necessarily made in retrospect, when there is evidence of what actually happened. This reflects the acute sensitivity of the court to the facts of a given case. Save where an issue of compatibility turns on a pure question of statutory construction, the House should in my opinion be similarly reluctant to rule without knowing what has actually happened. This seems to me important because there are some outcomes which would not in my opinion offend article 5(4) despite the employment of a specially appointed advocate. It might, for instance, be that the board, having heard the sensitive material tested by the specially appointed advocate, wholly rejected it. Or having heard the material tested in that way the board might decline to continue the review unless the sensitive material, or at least the substance of it, were disclosed at least to the appellant's legal representatives, relying on the court's observation in Doorson, above, para 74, that 'the Convention does not preclude identification - for the purposes of article 6(3)(d) - of an accused with his counsel'. Or the board might, with the assistance of the specially appointed advocate, devise a way of anonymising, redacting or summarising the sensitive material so as to enable it to be disclosed to the appellant or his legal representatives. Or the board might, in a manner that was procedurally fair, reach a decision without relying at all on the sensitive material. If any of these possibilities were to eventuate, I do not think there would be a violation of article 5(4)."
"The nature of the panel who makes the decision, as illustrated by this case, perhaps provides the greatest protection for the prisoner because of the need to balance carefully the conflicting interests involved before deciding whether non disclosure is justified. An experienced judge is able to make some appropriate allowance for the fact that evidence or information is not tested as well as would normally be the case in an adversarial hearing. In addition there are usually steps which the judge can take which will minimise the scale of non disclosure and its effect. It is here that the SAA can assist. However, this is not to suggest that the prisoner will not remain at a significant disadvantage if he is not in a position to instruct his representative on the matters relied on against him in the usual manner. It is because of this that non disclosure is a last resort and the question can still arise as to whether in the particular case there has been a breach of the irreducible minimum standard of fairness."
"76. The fact that information is withheld from a prisoner does not mean that there is automatically such a fundamental breach of the prisoner's rights either under article 5(4) or under domestic law. There can be an infinite variety of circumstances as to the degree of information that is withheld completely or partially without any significant unfairness being caused. The responsibility of the panel is to ensure that any unfairness is kept to a minimum while balancing the triumvirate of interests to which I have already referred. There may need initially to be a total withholding of information, but at an early stage of the hearing the prisoner may be able to be informed of the gist of what is relied on against him. Documents can be edited. There has to be detailed management of the hearing to ensure that the prisoner has the widest information possible. In relation to this management the [Special Advocate] can have a critical role to play on the prisoner's behalf.
77. There are two extreme positions so far as the prisoner is concerned. On the one hand there is full disclosure and on the other hand there is no knowledge of the case against him being made available to the prisoner, so that even with a [Special Advocate] he cannot defend himself. In between the two there is a grey area and within that grey area is the border which is the parameter between what is acceptable and what is not acceptable. Where that border is situated is fact-specific, depending on all the circumstances that have to be balanced. So far as article 5(4) is concerned the need to examine the facts as a whole, including any appellate process, before coming to a decision is critical as Lord Bingham points out in his speech, at para 19. The same is true in domestic law. To make rulings in advance of the actual hearing would be to introduce a rigidity that would make the task of the board extraordinarily difficult. The position has to be looked at in the round examining the proceedings as a whole with hindsight and taking into account the task of the board. The board's existing statutory framework, including the Rules, do not entitle the board to conduct its hearing in a manner that results in a significant injustice to a prisoner and in view of article 5(4) I do not anticipate that primary legislation can now be introduced that expressly authorises such a result without contravening the Human Rights Act 1998 even if express legislative authority was thought to be desirable.
78. For support for this approach I would gratefully adopt the authorities relied on by Lord Bingham and the series of statutory precedents to which he refers in paras 25 et seq of his speech. In particular I refer to the citations he makes from R v Secretary of State for the Home Department, Ex p Pierson  AC 539 and R v Secretary of State for the Home Department, Ex p Simms  2 AC 115. If a case arises where it is impossible for the board both to make use of information that has not been disclosed to the prisoner and, at the same time, protect the prisoner from a denial of his fundamental right to a fair hearing then the rights of the prisoner have to take precedence, but we have not in my view reached the stage in this case where we can say this has happened. Certainly we cannot say it has happened without considering at least the closed as well as the open judgment of Maurice Kay J. The appellant has chosen to make the issue that which I identified at the outset. He is saying in no circumstances can a [Special Advocate] be engaged at a hearing and this is putting the case too high."
"The board when confronted with a situation where a [Special Advocate] may have to be appointed must balance carefully the conflicting interests involved. If it does not do so in a way which in the end protects a prisoner's rights to be treated fairly then the Administrative Court can quash its decision. In this way the rule of law is upheld."
(6) All of the features that I have so far identified and discussed in paragraphs (1) to (5) above were to be found in some form in the procedures for certification and appeal to SIAC under the 2001 Act. However, in M, A and A (No 2) the Court of Appeal did not have to consider whether the use of a Special Advocate could sufficiently reduce the unfairness of using closed material against a respondent in cases where the court was not coming to its own judgment upon the totality of the evidence, open and closed, but was merely reviewing the lawfulness of the Secretary of State's decision based upon the open and closed material before the Secretary of State at an earlier stage.
"As the assessment of whether the Secretary of State had reasonable grounds to suspect that the Respondent was or had been involved in terrorism-related activity is to be judged only by reference to the information which was before him when he made the control order. It is not necessary to go on to consider what was known to his informant or whether any facts on which he based his suspicion were in fact true or not."
(7) Considered individually, features (1) to (6) of the procedure under the Act would not necessarily render the process as a whole unfair for the purposes of Article 6.1. However, it is the combination and cumulative effect of all of these features which is unique and which results in a procedure which is uniquely unfair. The issue can be tested in this way. On the assumption that the court at a hearing under section 3(10) could be persuaded to consider material coming into existence after the decisions under challenge, including the respondent's answers to the open material and the Special Advocate's submissions in respect of the closed material, what would be the position if the court, having considered all of the material as at the date of the hearing concluded that:
(a) there was now no reasonable basis for suspecting that the controlee had been involved in terrorism- related activity, or even that, on the balance of probabilities, he had not been so involved, and/or
(b) the control order or all or some of the obligations imposed by it were not necessary for purposes connected with protecting members of the public from a risk of terrorism.
Sections 7 and 10
"7(1) If while a non-derogating control order is in force the controlled person considers that there has been a change of circumstances affecting the order, he may make an application to the Secretary of State for --
(a) the revocation of the order; or
(b) the modification of an obligation imposed by the order;
and it shall be the duty of the Secretary of State to consider the application.
(2) The Secretary of State may, at any time (whether or not in response to an application by the controlled person) --
(a) revoke a non-derogating control order;
(b) relax or remove an obligation imposed by such an order;
(c) with the consent of the controlled person, modify the obligations imposed by such an order; or
(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."
"10(3) Where an application is made by the controlled person to the Secretary of State for --
(a) the revocation of a non-derogating control order, or
(b) the modification of an obligation imposed by such an order,
that person may appeal to the court against any decision by the Secretary of State on the application.
(4) The function of the court on an appeal against the renewal of a non-derogating control order, or on an appeal against a decision not to revoke such an order, is to determine whether either or both of the following decisions of the Secretary of State was flawed --
(a) his decision that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force;
(b) his decision that the obligations to be imposed by the renewed order, or (as the case may be) the obligations imposed by the order to which the application for revocation relates, are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.
(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."
"The Secretary of State may renew a non-derogating control order (with or without modifications) for a period of 12 months if he -
(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and
(b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity."