Suspect terrorist on bail entitled to continued anonymity in his own interests

29 June 2010 by Rosalind English

Secretary of State for Home Department (Respondent) v AP (Appellant) (no 2) [2009] EWCA Civ 731 Supreme Court 23 June 2010

AP, who had been subject to a control order and who now continued to live at the same address under bail pending a deportation decision on grounds of national security, was entitled to continuing anonymity because of the risks he faced if his identity were revealed – read judgment

We posted recently on a ruling by the Supreme Court that the social isolation of a suspected terrorist suspect subject to a control order rendered the order unlawful. It will be remembered that the appellant, an Ethiopian national, had been suspected of involvement in terrorist activities. The Secretary of State only withdrew her decision to exclude him from the UK when she was granted permission to make a control order against him, which was later modified to prevent him from contacting extremist affiliates in London by moving him to an address in the Midlands.

The Control Order Appeal – Social Isolation of the subject

There he complained of social isolation in a community where the local Muslim population came from a middle Eastern rather than African backgound, a “close-knit and closed structure”:

No one in the mosque has welcomed him into the community, or asked him how he finds the area or even what his name is. The Imam shows no interest in him … The mosque has simply become a place to pray. It has not become either the spiritual or social focus of his life.

For these reasons, he appealed against the modification of the control order and the Supreme Court upheld the decision of the judge at first instance, quashing the modification order ((2009) EWCA Civ 731). By the time the control order appeal was heard in the Supreme Court, the issue was academic, so far as the appellant himself was concerned, since on 2 July 2009 the Secretary of State had revoked the control order and decided that he should be deported on national security grounds. Following his appeal to the Special Immigration and Asylum Commission (SIAC) against the decision to make the deportation order he was granted bail pending deportation, on conditions, including residence in the Midlands, broadly similar to those of the previous control order, except that the curfew period was 18, not 16 hours.

The court also raised the question of whether to maintain the respondent’s anonymity in this case. This was to be a subject of the present judgment.

Justification for Continuing Anonymity

An anonymity order had been made at the outset of the proceedings in the Administrative Court and had been in force ever since. A similar anonymity order was made in the SIAC proceedings and it remains in force pending the Commission’s decision.

In this instance, both sides argued for the continuation of the anonymity order. The Secretary of State argued that an anonymity order allowed the police and the other officials to carry out their duties without attracting significant attention or any possible hostility from the local community. In this way the officials could perform their duties more effectively.

This, and the consideration that the knowledge that the appellant was subject to a Control Order might make him attractive to extremists in the area where he lives, convinced the Court that it was in the public interest to maintain the interim injunction. It was even more influenced by the appellant’s submissions that there had been strong local opposition to the Muslim community in the town where he lived, particularly those who were suspected of being associated with terrorism.

In these circumstances, if he were revealed to be someone who was formerly subject to a control order and was now subject to deportation proceedings for alleged matters relating to terrorism, then he would be at real risk not only of racist abuse but of physical violence. In other words there was at least a “risk” that the appellant’s article 3 Convention rights would be infringed.

No Media Intervention in Anonymity Determination

Since these submissions were made in the absence of any submissions on behalf of the media meant that, unlike in In re Guardian News and Media Ltd [2010] 2 WLR 325, the Court was not aware of any “special circumstances” which might point to a particular public interest in publishing a report of the proceedings which identified the appellant.

Accordingly the anonymity order should be maintained and the Court’s judgment, and any reports of that judgment, should not reveal the appellant’s identity. He should continue to be referred to as “AP”.

However – particularly in the absence of any media arguments to the contrary – Lord Rodgers was at pains to emphasise that the judgment should not be regarded as laying down any general rule as to the way that applications for anonymity orders should be determined in control order cases.