Secretary of State for the Home Department v AF

Findings made on a Prevention of Terrorism Act 2005 section 3(10) hearing are, in principle, binding between the same parties in a later section 3(10) hearing, subject to differences in the evidence relevant to the issues. A judge is not disqualified by objective prejudgment merely because the judge made adverse findings in the earlier proceedings. The later court must consider changes in evidence, disclosure, admissibility, the passage of time and any appellate guidance. Recusal remains fact-specific. Where bias is alleged, the judge must also decide subjectively whether he or she can determine the issues unaffected by prejudgment or bias.

The Secretary of State sought directions concerning control orders PTA/33/2006 and PTA/4/2007. Ouseley J had previously quashed PTA/33/2006, while making findings concerning reasonable suspicion, necessity and procedural protection. The House of Lords later reversed the liberty finding and remitted the case for reconsideration under its guidance, reported at [2007] UKHL 45, [2007] UKHL 46 and [2007] UKHL 47.

The respondent argued that Ouseley J should be recused from the later proceedings because he had previously determined central issues on substantially similar evidence. The Secretary of State argued that the earlier findings should provide the starting point for the later hearing. The central issues were whether earlier findings were binding and whether the earlier judge was thereby disqualified.

1. Earlier findings. The court held that PTA/4/2007 was a different control order and could not be treated as a modification of PTA/33/2006 under section 7 of the Prevention of Terrorism Act 2005.
2. Section 3(10) requires the court to determine whether the Secretary of State’s decisions were flawed when the order was made and until the court determines the issue. Unlike section 10(4), it does not assume that the earlier order had already been upheld. Nevertheless, the wording of section 3(10) did not exclude the ordinary public-law principle that a judicial decision between parties should be respected in later proceedings.
3. Accordingly, where there has been an earlier section 3(10) hearing between the same parties, the earlier court’s findings are the starting point for the later hearing. If the evidence and issues are unchanged, the findings should be treated as binding. This does not require the later court to reach the same factual conclusions where evidence has changed, further evidence is available, disclosure differs, evidence is excluded, or the passage of time is material.
4. Recusal. A judge is not objectively disqualified merely because the judge previously decided issues adversely to a party. Since the earlier findings are in principle binding, a different judge would also have to respect them. In the present circumstances there was no objective basis for assuming that the earlier judge would not act fairly and impartially.
5. Recusal is nevertheless fact-specific. The judge must decide subjectively whether he or she can determine the later issues unaffected by prejudgment or bias. Because the evidence and issues at the substantive hearings were not yet known, the court declined to make a final decision on recusal. It held only that the earlier judge would not in principle be disqualified by prejudgment.

• Administrative Court: Ouseley J quashed PTA/33/2006 in [2007] EWHC 651 (Admin).
• House of Lords: The decision was reversed on the liberty issue and the case was remitted for reconsideration of procedural protection, in [2007] UKHL 45, [2007] UKHL 46 and [2007] UKHL 47.
• Administrative Court: The present judgment determined the status of earlier section 3(10) findings and the principles governing possible recusal.