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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AV & AU v Secretary of State for the Home Department [2008] EWHC 1895 (Admin) (31 July 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1895.html Cite as: [2008] EWHC 1895 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF PROCEEDINGS UNDER THE
PREVENTION OF TERRORISM ACT 2005
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| AV and AU |
Appellants |
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| - and - |
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| SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
MISS KATHERINE OLLEY (instructed by the Treasury Solicitor) appeared for the Secretary of State
MISS CLARE BROWN (instructed by the Special Advocates' Support Office in respect of AV) and MR MARTIN CHAMBERLAIN (instructed by the Special Advocates' Support Office in respect of AU) appeared for the Special Advocates.
Hearing dates: 16th July 2008
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Crown Copyright ©
MR JUSTICE MITTING :
Jurisdiction
"a) to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed
c) if it gives permission, (to)...give directions for a hearing in relation to the order as soon as reasonably practicable after it is made."
The Court is neither required nor empowered to review the detailed terms of the order. Subsection 3(7) provides that directions given under subsection 3(2)(c) "must include arrangements" for the controlled person to make representations about,
"a) the directions already given; and
b) the making of further directions."
There is no express statutory prohibition on the controlled person inviting the Court to consider the detailed obligations, but subsection 3(12) suggests that the Court cannot or should not entertain such an application under subsection 3(7), because it provides for the exercise of the power to give directions for the modification of the obligations imposed by a control order, "on a hearing in pursuance of directions under subsection 2(c)" i.e. the full hearing ordered when permission is given to the Secretary of State to make the order. The statutory scheme under Section 3 is, in my view, clear: the Court's powers at the permission stage are limited to refusing to give permission and, if permission is given, the giving of directions for a full hearing. The controlled person may make representations about directions for that hearing. Only after it has occurred can the Court give directions to the Secretary of State for the modification of obligations. There is no prior opportunity under Section 3 for the controlled person to raise with the Court modifications to the obligations or for the Court to rule upon them.
"(1) If while a non-derogating control order is in force the controlled person considers that there has been a change of circumstances affecting the order, he may make an application to the Secretary of State for -
b) the modification of an obligation imposed by the order;
and it shall be the duty of the Secretary of State to consider the application.
(2) The Secretary of State may, at any time (whether or not in response to an application by the controlled person) -
b) relax or remove an obligation imposed by such an order."
Section 7 does not prohibit the controlled person from applying to the Secretary of State for a modification unless he considers that circumstances have changed. It provides for two situations in which the Secretary of State can consider modifying obligations under a control order: in response to an application by a controlled person, he must consider an application to modify when the controlled person considers that there has been a change of circumstances under subsection 7(1); he may modify the obligations at any time, in response to an application by the controlled person, under subsection 7(2)(b). In either case, the Secretary of State will make a decision, to modify or not.
"(3) where an application is made by the controlled person to the Secretary of State for -
b) the modification of an obligation imposed by such an order,
that person may appeal to the Court against any decision by the Secretary of State on the application"
The right of appeal encompasses both the terms of a modification made and a refusal to make a modification. It is not confined by the statutory language only to those cases in which the Secretary of State refuses to make a modification for which the controlled person has applied under Section 7(1). Given the potentially significant effect of the order on the controlled person, express words would, in my view, be required to limit the right of appeal against a decision to refuse to modify to that circumstance only.
"To determine whether the following decision of the Secretary of State was flawed -
(b) his decision that the obligation continues to be necessary for (purposes connected with preventing or restricting involvement by the controlled person in terrorism related activity) "
The Court's powers are limited to giving directions to the Secretary of State for the modification of the obligations imposed: subsection 10(7)(c). The Court is required to give intense scrutiny for the necessity for each of the obligations imposed, while giving appropriate deference to the decisions taken by the Secretary of State as to the measures necessary to protect the public against the activities of a terrorist suspect: Secretary of State for the Home Department v MB [2007] QB 415 paragraph 64 and 65. Although the Court of Appeal was concerned with a ruling under subsection 3(10), its words in paragraph 65 are apt to include appeals relating to the obligations imposed by a control order under subsection 10(3): "the exercise has something in common with the familiar one of fixing conditions of bail". Mr Hussain accepts that the task of the Court is as I have stated and that subsection 10(3) does not require or permit the Court to question the grounds for suspecting that an individual has been involved in terrorism-related activity or that it is necessary, for purposes connected with protecting the public from a risk of terrorism, to make the control order. He is right to make those concessions.
AU
i) To reduce the curfew from sixteen hours to fourteenii) To permit AU to drive twice daily from Hackney to the school in Acton and back
iii) To permit AU to drive from Hackney to the Arabic Cultural School in Cricklewood and back on Saturdays
iv) To permit visitors to visit his flat without prior approval
v) To permit him to attend pre-arranged meetings with individuals or groups outside his residence.
AV
i) To reduce the curfew from sixteen hours to twelveii) To allow him access to Sparkhill
iii) To clarify the definition of "electronic data storage devices" in paragraph 9.1c of the order