Secretary of State for the Home Department v AF

At a hearing concerning a new non-derogating control order, the court must determine the statutory questions by reference to the circumstances at the date of that hearing. Findings made at an earlier control-order hearing are relevant but are neither binding nor the required starting point. The judge must give them such weight as justice and fairness require, having regard to changes in the evidence and circumstances.

A judge is not ordinarily disqualified for apparent bias merely because the judge decided overlapping factual issues adversely to a party in earlier proceedings. The question remains whether a fair-minded and informed observer would see a real possibility of bias.

AF appealed against Stanley Burnton J's order in [2007] EWHC 2828 (Admin). The judge had declared that findings made at a hearing under section 3(10) of the Prevention of Terrorism Act 2005 were, in principle, binding in a later hearing between the same parties, subject to differences in the evidence. He also declared that deciding issues adversely to a party did not, without more, disqualify the judge from later proceedings through prejudgment.

The appeal arose from successive non-derogating control orders imposed on AF. The principal live question was how a court considering a new control order should treat conclusions reached at an earlier section 3(10) hearing. The apparent-bias issue had become largely academic because Ouseley J would not conduct the forthcoming hearings.

1. The appeal was allowed in part. The declaration that findings from an earlier section 3(10) hearing were in principle binding was set aside. The declaration concerning judicial disqualification was retained. Rix and Keene LJJ agreed with Sir Anthony Clarke MR.

2. For every new non-derogating control order, the court must determine the statutory questions as at the date of the section 3(10) hearing. It must itself be satisfied that the facts relied upon amount to reasonable grounds for suspecting involvement in terrorism-related activity. It must also scrutinise intensely the necessity of each obligation. An earlier decision concerning a different control order is not binding and should not be treated as the prescribed starting point.

3. The earlier conclusions remain relevant. The judge must give them such weight as is appropriate in the circumstances. The proper weight depends on matters including the interval between the hearings, changes in the evidence and issues, and whether justice requires previously examined material to be reopened. Where little has changed and the hearings are close in time, the judge may be reluctant to revisit recent evidence and may, as a case-management decision, refuse to reopen part of it.

4. The overriding objective is to deal with the case justly and to ensure a fair procedure under article 6 of the European Convention of Human Rights. This is particularly important where the controlled person cannot see the closed material. Although the proceedings are civil, procedural protection must be commensurate with the gravity of the possible consequences.

5. The guidance in Devaseelan could not be transferred wholesale from asylum adjudication to control-order proceedings. A control-order judge examines whether a matrix of material supplies reasonable grounds for suspicion, often through a closed procedure in which the controlled person lacks access to critical evidence. The applicable principle was therefore no more prescriptive than a duty to have such regard to earlier conclusions as the circumstances warranted.

6. Prior adverse findings do not, without more, establish apparent bias. Applying the fair-minded and informed observer test, it will ordinarily be permissible, and may best serve justice, for the same judge to hear successive control-order proceedings. Particular conduct or circumstances may nevertheless require recusal. No such appearance of bias had been shown in relation to Ouseley J.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 117, allowed AF's appeal in part. It set aside the declaration that earlier section 3(10) findings were in principle binding but retained the declaration concerning judicial disqualification.
2. High Court, Administrative Court: In [2007] EWHC 2828 (Admin), Stanley Burnton J refused the application concerning the identity of the judge and made declarations about the effect of earlier findings and prejudgment.
3. House of Lords: In the earlier proceedings concerning the second control order, the House reversed the article 5 determination and remitted the article 6 question to the Administrative Court.