Another control order bites the dust

7 April 2011 by

BM v Secretary of State for the Home Department [2011] EWCA Civ 366 (05 April 2011) – Read judgment

Another control order has been ruled unlawful and quashed by the court of appeal, on the basis that the evidence relied upon to impose it was “too vague and speculative”.

Control orders are a controversial anti-terorrism instrument (see this post) which are soon to be replaced with Terrorism Prevention and Investigation Measures. These will impose less onerous restrictions upon a terrorist suspect. No doubt they will be approached by the courts at some stage. In the meantime, there are still 9 control orders in operation under the current regime. One has just been quashed by the court of appeal.

The appellant (BM), is 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”.

On 30 April 2009, the Home Secretary applied to Mr Justice Ouseley under the Prevention of Terrorism Act 2005 to make a non-derogating control order in relation to BM. Section 2 sets out that the secretary of state must have “reasonable grounds” for suspecting the individual is or has been involved in terrorist activity, and considers it necessary to make a control order imposing obligation in order to protect the public.

The control order was then subject to a review by a court (section 3). The court of appeal made clear that at that review, which was undertaken by Mr Justice Saunders in early 2010, it was for the court to consider first whether at the time the order was made, it was made validly, and then also whether at the time of the hearing it was still valid. The judge got this two-part test wrong, stating:

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.

The court of appeal therefore asked the questions again for itself. It found that the decision to impose the control order was flawed as it could not be justified as necessary.

First, there was no detail of matters relied up on after the imposition of the Terrorism Order in August 2007 other than the information provided in a statement by the Security Services to the court in early 2010. That statement was provided in order to fulfil the secretary of state’s duty to give the controlled person sufficient of the case against him to enable him to give effective instructions (as required by Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28 (see Rosalind’s analysis), although quite what this means in practice is something that the courts have since been grappling with). In BM’s case the statement did not provide sufficient evidence to justify the order:

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

There was also a “closed” judgment, which the court of appeal had not seen. An odd and somewhat Kafkaesque aspect of control order cases is that there is usually a separate, secret procedure happening in court at the same time in which “special advocates”, appointed to act in the controlled person’s interests, discuss security-sensitive evidence away from the presence of the ‘controlee’ to seek to challenge the closed case against him (see my Q&A on control orders). The controlee must be provided with enough of the case against him to enable him to give effective instructions to his representatives. However, in this case, the court had not seen any other material save for a confidential annex to the Mr Justice Saunders’ original judgment (something which the court said must not happen again – see para 41(iii)). It ultimately concluded, in strained fashion:

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.

Not a particularly clear paragraph, but the court was effectively saying that it could only work on the information available to it, and not any unknown unknowns hinted at by the security services.

The court refused to send the case back to the High Court, for reasons set out in paragraph 28. In essence, it was concerned that there would be further significant delay which would add to the 22 months since the control order was first made. This was already an unacceptable delay:

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.

And it was not for the court to direct disclosure of more of the secret evidence which had not been revealed for this hearing. The court made clear that in future this must be dealt with in advance of the hearing, not after it:

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.

In any event, if BM was still a threat, it would always be open to the secretary of state to impose a new control order (or whatever replaces it) upon him.

The order was to be revoked within 48 hours of the handing down of the judgment. So right about now.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts


  1. Ed Bates says:

    A very useful update on a recent case – thank you.
    There was an interesting debate on control orders (in fact the recent terrorism laws review more generally) on BBC Radio 4’s “Unreliable Evidence” programme a couple of weeks ago. Lord MacDonald and Lord Carlile had different views on the prospects for the prosecution of ‘controlees’ whether under a control order or the new, proposed ‘TPIM’. It’s worth listening too and can still be found on the BBC site.

  2. Tara Davison says:

    The loss of civil liberty for one person or group can destroy the civil liberties of all.

    Control Orders in any form and pre-charge Restraint Orders should be abolished root and branch.

    The destruction of the presumption of innocence has no place in a civilized society.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: