[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> BH v Secretary of State for the Home Department [2009] EWHC 2938 (Admin) (17 November 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2938.html Cite as: [2009] EWHC 2938 (Admin) |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
BH |
Claimant/ Appellant |
|
- and - |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant/ Respondent |
____________________
(instructed by BIRNBERG PEIRCE & PARTNERS) for the Claimant/Appellant
MR ROBIN TAM QC & MR RUPERT JONES
(instructed by THE TREASURY SOLICITOR) for the Defendant/Respondent
MR MOHAMMED KHAMISA QC
(instructed by SPECIAL ADVOCATES SUPPORT OFFICE) as Special Advocate
Hearing date: 12th November 2009
Judgment
____________________
Crown Copyright ©
MR JUSTICE MITTING :
"However, the Secretary of State is of the view that it is necessary for the purposes of preventing or restricting your client's involvement in terrorism-related activity that any such variation to your client's boundary and police station reporting obligations would be subject to a number of conditions outlined below….
1. BH's curfew will end when he is picked up from his residence by the police at 9am;
2. BH's curfew will begin again at 2pm or if after 2pm, when he is returned to his residence by the police after the end of the legal conference;
3. BH must not leave his residence again until the end of his curfew at 5pm;
4. BH must return to his residence for the start of his curfew at midnight;
5. BH must be accompanied by a police officer(s) at all times during his travel from his residence to Birnberg Peirce & Partners and from Birnberg Peirce & Partners to his residence. For the avoidance of doubt, this will be from the time the police escort BH from his residence to Birnberg Peirce & Partners (see condition 1 above) to the time the police return him to his residence at the end of the legal conference:
6. Once at Birnberg Peirce & Partners, BH must remain there at all times until the conclusion of the legal conference at 1pm, including any breaks in the conference:
7. BH must allow himself to be searched before leaving his residence and again before leaving Birnberg Peirce & Partners (for the avoidance of doubt your client may be asked to remove his outer coat/jacket/hat/gloves and footwear. The police officer may search the inner thigh, place his hands inside the pockets of the outer clothing, or feel around the inside of the collars, belt, socks and shoes if this is reasonably necessary); and
8. Your client must inform the Home Office immediately and prior to the scheduled appointment if he is not going to attend.
We require confirmation of your client's agreement in writing to these conditions prior to the modification being granted. We will then proceed to vary your client's control order. Until such a time as the control order is formally varied we would remind you that your client remains subject to his existing control order obligations."
In cases in which a controlled person signifies his written agreement to such conditions, it was and is Home Office practice to send a further letter, setting out the variation granted in identical or substantially identical terms and to conclude,
"For the avoidance of doubt, this letter is deemed notice to your client of the variation of his control order".
That did not occur in this case, because by a fax letter of 16th September, BPP objected to condition 7, the personal search condition. In response, the control order contact officer declined to remove the personal search condition, invited BPP to provide written confirmation of BH's agreement to all of the conditions and reiterated that until the control order was formally varied, he remained subject to its existing conditions. BPP reiterated their refusal. On 17th September 2009, the control order contact officer replied that "the modification cannot be agreed" and pointed out that the existing obligations did not prohibit a visit to BH by his legal representatives within his boundary.
"(3) The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
(4) Those obligations may include, in particular…
(g) a prohibition or restriction on his movements to, from or within the United Kingdom…
(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)".
Section 1 contains no express provision authorising a personal search. SSHD v GG [2009] EWCA Civ 786 established that the general language of section 1(3) "is insufficient to authorise the inclusion in a control order of a general requirement to submit to searches of the person whether on demand of anyone authorised by the Home Secretary or only of a police officer." Miss Harrison, for BH, submits that this principle applies to personal searches required as condition of variation of the curfew and boundary to permit a controlled person to attend a legal or medical appointment or a court hearing, outside it. Mr Tam QC submits that the "condition" required by the control order contact officer did not amount to an obligation to submit to a personal search, but was merely the condition upon which the curfew and boundary obligations would be relaxed if he agreed to it. The distinction matters, because, if the condition amounts to an "obligation imposed on him by a control order" he may be prosecuted for its breach under section 9(1).