A & Ors v Secretary of State for the Home Department

Recusal in control-order proceedings is not governed by an automatic rule arising from a judge’s earlier involvement with the same person. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. That assessment is fact-sensitive. It requires consideration of what the judge previously decided, the material relied upon, and the relationship between the earlier and later functions. The court supervising a control order applies judicial-review principles. The Minister is not confined by judicial rules of evidence when deciding what material may properly be considered.

The applicants were subject to control orders made under the Prevention of Terrorism Act 2005. They raised preliminary issues concerning the evidential status of open judgments of the Special Immigration Appeals Commission and whether a judge who had previously acted under the Anti-terrorism, Crime and Security Act 2001 or the 2005 Act should recuse himself from the supervisory function under section 3(10).

The Administrative Court, following directions given by Ouseley J, considered disclosure concerning the Secretary of State’s use of SIAC judgments and the general question of judicial recusal.

1. The court ordered the Secretary of State to state within seven days how he had taken account of the relevant SIAC judgments, which parts he had relied upon, and for what purposes. Further material was to be relisted if it could not be recovered and considered for disclosure.

2. Under the Prevention of Terrorism Act 2005, the Administrative Court supervises control orders by applying judicial-review principles. The Secretary of State is not bound by the rules of evidence governing a court and may properly have regard to material according to the issues and circumstances of the individual case. This differs from SIAC’s function under section 25 of the 2001 Act, where SIAC had to reach its own conclusion on whether there were reasonable grounds for certification.

3. The applicable recusal test is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. Earlier involvement in related proceedings does not create an automatic disqualification. The issue must be assessed in the individual case by the judge assigned to perform the section 3(10) function.

4. The relevant inquiry includes what the judge previously decided, the material on which that decision was based, and whether the distinction between the earlier decision and the decision now required has become tenuous. Previous findings, bail conditions, or earlier functions under sections 3(3), 3(6) or 3(8) may require recusal in a particular case, but no general rule could properly be declared on the facts before the court.

5. Mr Justice Walker agreed. The court declined to make the requested sweeping declaration and made the consequential costs orders sought where required.

The judgment was a first-instance determination of preliminary issues in Administrative Court proceedings. The judgment records earlier directions by Ouseley J and earlier proceedings before SIAC, but gives no citation for a lower-court judgment under appeal.