Another control order bites the dust

7 April 2011 by Adam Wagner

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.

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Related posts

• Control orders: what are they and why do they matter?
• Another control order ruled unlawful
• Control orders quashed, compensation claims may follow