A v Secretary of State for the Home Department

On an interim appeal against refusal to modify a control order, the court must scrutinise the necessity of each obligation intensely. Where an obligation is particularly onerous for the individual, its personal impact is material. The court should explore alternative means of achieving the same preventive purpose.

Urgent interim relief may be granted on incomplete evidence where responsible medical evidence indicates a grave and immediate risk, and a reasonable alternative is available. The decision must remain provisional and must not fetter the judge determining the substantive appeal.

The appellant was subject to a control order under the Prevention of Terrorism Act 2005. He appealed under section 10(3) against refusals to modify restrictions concerning personal reporting at a police station, telephone reporting, internet access and visitors.

The substantive appeal against renewal of the order was listed for a later hearing. The present appeals were brought urgently because medical evidence linked the police-station reporting requirement to serious self-harm and the risk of further detention under the Mental Health Act 1983. The central issue was whether the refusals to modify the reporting obligations were legally flawed pending the substantive appeal.

1. Outcome. The appeals concerning police-station reporting and the timing of telephone reporting succeeded. The appeals concerning internet access and visitors were adjourned to the substantive appeal.
2. Under [2006] EWCA Civ 1140, the court must give intense scrutiny to the necessity of each control-order obligation. Where an obligation is particularly onerous, the court should examine alternative means of achieving the same objective. The degree of burden is individual and its effect on the person subject to the order is highly relevant.
3. For the interim appeals, the court proceeded on the basis that the control order and the existing reporting restrictions were otherwise necessary. The question was whether the appellant’s present circumstances, particularly his mental state and the medical evidence, made the police-station obligation unsustainable.
4. The medical evidence showed that personal reporting was the principal source of distress and created a serious risk of further self-harm. A telephone call from the appellant’s residence appeared capable of achieving most, if not all, of the same monitoring purpose. The refusal to substitute that obligation was therefore flawed.
5. The refusal to alter the telephone-reporting times was also flawed. The proposed times better accommodated the appellant’s medication and sleep pattern, while preserving an approximately even spread of reporting obligations.
6. The conclusions were expressly interim. They were reached despite incomplete evidence because of the urgency and gravity of the risk and the availability of a reasonable alternative. They were not intended to fetter the judge hearing the substantive appeal, who could reinstate or vary the obligations after full evidence and argument.
7. The court directed modification of the relevant clauses of the control order until judgment on the substantive appeal or an earlier decision in that appeal. The remaining modification appeals were adjourned.

The judgment describes earlier control-order modification appeals and a forthcoming substantive appeal against renewal of the order, but no earlier decision under appeal is identified by citation.