England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2009

MR JUSTICE MITTING :

1. On 29^th February 2008 I identified in a closed disclosure judgment what must be disclosed to AN to fulfil his right to a fair hearing in accordance with my, then, understanding of the speeches of the majority in Secretary of State for the Home Department v MB & Others [2007] UKHL 46. That understanding was, that to fulfil that right, the special advocates must be able to challenge the Secretary of State's grounds for suspicion on the basis of instructions from the controlled person which directly addressed their essential features, by being told their gist. I put the Secretary of State to an election, comparable to that specified in CPR 76.29(7) – to make the disclosure required or to withdraw the matter to which it related from consideration. By its order of 10^th June 2009, the House of Lords quashed my decision and remitted the matter to me to reconsider afresh. It would have been open to the special advocate, Mr McCullough, to submit that further disclosure, beyond that which I had ordered, should be made. In the event, any such submission would have been academic, because, on 15^th July 2009, the Secretary of State indicated that he would be withdrawing reliance on the material on which his predecessor was put to her election.
2. That material represented the essence of the case, as it was then put by the Secretary of State, against AN. Mr O'Connor submits that the Secretary of State's decision to make the control order and to continue it in force and to renew it on 3^rd July 2009 can be shown not be flawed by reference to other material, not withdrawn, which was contained in the original Security Service submission to his predecessor. That material has not yet been disentangled from that which the Secretary of State has withdrawn. Nor has it been disclosed or gisted to AN in anything other than the most general terms. It may or may not be capable of justifying a decision to make a control order and/or to continue it in force. For reasons which are briefly explained in the closed judgment, they cannot reasonably be taken to have been the Secretary of State's essential grounds for suspecting that AN was or had been involved in terrorism related activity when she made the control order on 4^th July 2007. The exercise which Mr O'Connor invites me to undertake is, accordingly, not that required by section 3(10) of the Prevention of Terrorism Act 2005 – to determine whether the decision of the Secretary of State that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order, but whether or not, given the withdrawal of the material upon which the decision was essentially founded, it remains possible to uphold that decision on the basis of what is left. This was not the issue considered by the House of Lords in MB or Secretary of State for the Home Department v AF & Others [2009] UKHL 28. The issue is free of binding authority and guidance. The outer perimeters of the range of circumstances in which the question may arise are readily identifiable. When the Secretary of State makes the decision to make a control order on a materially erroneous basis, the decision should be held to be flawed and will normally be quashed: Secretary of State for the Home Department v AT & AW [2009] EWHC 512 (Admin) paragraphs 9 to 20. When the Secretary of State has several grounds for reasonable suspicion, but is unwilling to disclose or gist one or more of the less significant grounds, he is nonetheless entitled to rely upon the remaining grounds and the Court can determine whether or not his decision was flawed on those grounds alone. No difficulty, in my judgement, would arise in a case in which the Secretary of State relied on, say, three distinct grounds which, independently of each other, would justify the making and continuance of the order, even if he were forced to withdraw one or even two of the three from consideration. It would still then be possible to answer the statutory question whether or not the Secretary of State's decision that the requirements of section 2(1)(a) was flawed. That is not the exercise which Mr O'Connor invites me to perform. His suggestion is that, in a case in which the core allegations or essential case against AN have been withdrawn, the decision of the Secretary of State, which must have been based upon them, should be reviewed to determine whether it is capable of being supported by material which cannot have been at the forefront of her mind, which may be capable of being disentangled from that which was. That is so far removed from the statutory exercise that I would not be performing it. I acknowledge that in the much simpler modification appeal BM v Secretary of State for the Home Department [2009] EWHC 1572 (Admin), I did just that. I did so, because I had no choice. Something much closer to the statutory exercise can be achieved here, by the means explained below. My decision is that if I can perform a task that is closer to the statutory exercise than that which Mr O'Connor suggests, I should.
3. On the material as it is at present deployed, the requirement of Article 6 identified by Lord Phillips in paragraph 65 of AF has not been fulfilled: non- disclosure has gone so far as to deny AN knowledge of the essence of the case against him. The essence of that case has now been withdrawn. It therefore follows that the decision of the Secretary of State was made upon grounds upon which no reliance can now be placed. I must, therefore, hold that the decision was flawed.
4. In this context, no question arises about individual obligations imposed by the order. My powers are, accordingly, limited to those contained in section 3(12)(a) and (c): power to quash the order or to give directions to the Secretary of State for its revocation. Mr Owen QC submits that I should quash the order. Mr O'Connor submits that I should give directions for its revocation. Mr Owen submits that the order was a nullity, because the Secretary of State had no power to make an order which could not subsequently be sustained in proceedings which complied with the civil proceedings limb of Article 6. If I had been persuaded that the order was a nullity, I agree that it would have to be quashed, like the order which the Secretary of State had no power to make in Secretary of State for the Home Department v JJ [2007] UKHL 45 (because the Secretary of State had no power to deprive JJ of liberty). Article 6 applies to "control order proceedings": see Lord Bingham's summary of the Secretary of State's concession in MB at paragraph 15. Whether or not the procedure used has involved significant injustice to the controlled person must be determined by looking at the process as a whole: paragraph 35. The making of the order by the Secretary of State is part of that process. But it is the Court which determines, when granting or withholding permission to make the order under section 3(2) whether the decision of the Secretary of State is obviously flawed and which determines, on a review hearing under section 3(10), whether the decision to make the order and to continue it in force is flawed. The obligation to disclose or gist to the controlled person the essence of the case only arises at the stage when the Secretary of State's decisions are reviewed under section 3(10). Subject to the qualification made below, when the Secretary of State decides to apply for permission to make the order and makes it, he is not inhibited from relying on closed material which, in due course, he may elect to withdraw rather than to disclose or gist. Further, when the Secretary of State decided to make the order it was reasonable to suppose that she would be permitted to rely on the closed material without gisting or disclosing it: the hearing in MB did not begin until the following day and the decision was not handed down until 31^st October 2007. If Mr Owen's argument is right, it was not only the decision of the Secretary of State which was a nullity, but also that of Collins J, when he granted her permission to make the order on 3^rd July 2007. On the principle that a decision of a properly constituted Court on an issue within its jurisdiction is binding unless and until set aside, that proposition is untenable. I am satisfied that both elements of the proceedings at the inception of the control order (Collins J's permission, and the minister's decision, to make the order) were lawful and that neither was a nullity. Taken together, that stage of the proceedings, cannot be so described. It follows that I am not required by the application of ordinary judicial review principles to quash the order.
5. I accept that I have discretion whether to quash the order or to give directions for it to be revoked. The difference matters in this case, because AN has been charged with an offence of breaching the order. A decision by me to quash it would, without more, require the charge to be abandoned (this is the necessary consequence of the automatic quashing of any conviction provided for in section 12). Different orders have been made without full argument in R(ota Secretary of State) v Cerie Bullivant [2008] EWHC 337 (Admin) by Collins J and by me in BM. This is, as far as I know, the first occasion on which the issue has been fully argued. I am, therefore, free to determine it uninhibited by either of those two decisions. I am satisfied that I should not quash the order, but simply give directions for it to be revoked. I do so for the same reasons as those given briefly in BM. The order was properly made and renewed on the basis of material which the Secretary of State and Collins J were entitled to take into account. It was not a nullity. It is a control order which cannot now be sustained as a result of a proper decision made on or shortly before 15^th July 2009 in the light of the law as it has now been declared to be by the House of Lords. In the exercise of the discretion which section 3(12) gives to me, I propose to give directions that an order, lawful at inception, but which can no longer be sustained, should be revoked.
6. During argument, one circumstance was canvassed which, in my view, should lead to the quashing of a control order made wholly or essentially in reliance on closed material. If, following the clarification of the law in AF, when applying for permission, the Secretary of State intended not to disclose or gist the material, it may be an abuse of the Court's process to make the application. What the Secretary of State would have done would have been to apply for permission to make a control order which he had no intention of seeking to sustain at the section 3(10) review. In those circumstances, it may well be right to quash the order. Not so, as here, when the Secretary of State had good reason to anticipate that the order would be upheld on the basis of closed material properly withheld from AN.
7. The Secretary of State will now be free to decide whether or not to apply for permission to make a fresh control order on the basis of the material disentangled from the withdrawn material. He will then be applying his mind to the two questions set out in section 2(1) on the basis of the material which the Court will then review to determine whether his decision was obviously flawed, at the permission stage, or flawed, on review. In this way, the statutory scheme will be fulfilled. National security will not be put at risk by the existence of what is called a "protection gap", because, with Mr Owen's consent, I have directed that the draft judgment be sent to the Secretary of State at the same time as it is sent to the Security Service under CPR 76.33(2). The Secretary of State will have adequate time in which to consider whether or not to make a fresh control order before the existing order is revoked. For the avoidance of doubt, the Secretary of State will be entitled to take into account material deployed in these proceedings other than that which has been withdrawn. I have not decided that that material would be incapable of supporting a decision to make a control order. That decision will be for the judge (who will not be me) who grants or withholds permission and/or conducts the section 3(10) review.