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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) (20 May 2011) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2011/1273.html Cite as: [2011] EWHC 1273 (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 :
____________________
C D |
Appellant |
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- and - |
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Secretary of State for the Home Department |
Respondent |
____________________
Naeem
Mian (instructed by Soni & Kaur, Solicitors) for the Appellant
Ms Lisa Giovannetti QC and Ms Carys Owen (instructed by the Treasury Solicitor) for the Respondent
Mr Charles Cory-Wright QC (instructed by the Special Advocates' Support Office) appeared as Special Advocate
Hearing date: 10 May 2011
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Crown Copyright ©
The Hon. Mr Justice Simon :
Introduction
… for purposes connected with protecting members of the public from a risk of terrorism.
The circumstances in which these non-derogating control orders may be made are set out in section 2 of the Act.
The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.
…
(e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence;
…
(g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom.
The Secretary of State may, at any time …
…
(d) Make to the obligations imposed by such an order any modifications which he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.
The statutory framework for statutory appeals
… the Court is not entitled on an appeal under section 10(3)(b) of the Act (or an appeal under section 10(1)(b) of the Act for that matter) to question either the reasonableness of the grounds for suspecting that the controlled person has been involved in terrorism-related activity, or the necessity to make a control order against him to protect the public from a risk of terrorism. Since that is the effect of section 10 of the Act, the corollary is that the court should not – save perhaps in an exceptional case – proceed on the basis that anything more than reasonable grounds for suspecting the controlled person of involvement in terrorism-related activity exists, because that would open up the hearing of an appeal of this kind to a consideration of the wide-ranging issues which arise when the control order and the obligations imposed under it are reviewed under section 3(10) of the Act.
[63] Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligation that it is necessary to impose may depend on the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands on those resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance.
[64] The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasburg court, see for instance: Secretary of State for the Home Department v. Rehman [2001] UKHL 47, [2003] 1 AC 153; Republic of Ireland v. United Kingdom (1978) 2 EHRR 25.
[65] Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous and intrusive and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order 'with the consent of the controlled person' envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations.
See also AM v. Secretary of State for the Home Department (referred to above) at [7], and AV and AU v. Secretary of State for the Home Department [2008] EWHC 1895 (Admin) Mitting J at [7]
i) The court will engage in a scrutiny of the 'necessity' for the particular obligation imposed on the controlled person to which the appeal relates. The test of 'necessity' needs little further elaboration: it plainly goes further than reasonableness or utility, see also Keith J in AM at [7]
ii) The scrutiny must be intense, in other words, closely focused on the decision to impose the obligation in the light of the relevant material put before the Court. The Court applies the principles applicable on an application for judicial review, see s.10(6); and if, as will usually be the case, the obligation under scrutiny affects Convention rights, the applicable principle will be proportionality, see MB at [63] and AV and AU at [8].
iii) However, since the Secretary of State is better placed than the Court to decide what measures are necessary to protect the public against the activities of a terrorist suspect, the court will accord a degree of deference to the Secretary of State's assessment of what is necessary. The Court's restraint is a reflection of the fact that the Secretary of State is making evaluative and predictive judgements of risk, see for example the speech of Lord Hoffmann in Secretary of State for the Home Department v. Rehman (referred to above) at [48] and [57].
iv) The Court will also need to have in mind that it has been provided with evidence which has been withheld from the controlled person and his legal team on the grounds of national security, and that the Special Advocate is necessarily inhibited from taking instructions on the material which he has seen.
The Open Security Service submission to the Secretary of State on relocation
The Secretary of State's evidence on relocation
CD's evidence
First,
Since the relocation and imposition of the Control Order, the impact on my family and [me] has been devastating in terms of the enormity of what has happened in terms of separation from my family, both psychologically and physically.
Secondly,
I wish to be relocated back to London preferably to my home address.
If my request is not granted, consideration should be given to the provision of a travel subsidy for my family and friends to visit on a reimbursement basis
The submissions on behalf of CD
The submissions on behalf of the Secretary of State in relation to the open material
Discussion on the open material
The Secretary of State recognises that relocating a person can have a detrimental impact on his social life. However it is assessed that that if [CD's] wife chooses to locate to [the relocation place] with the children the impact would be less onerous. The Home Office will ensure that there are mosques within [CD's] proposed geographical boundary.
Conclusion