AV & AU v Secretary of State for the Home Department

A controlled person may appeal under section 10(3) of the Prevention of Terrorism Act 2005 against any decision on an application to modify an obligation, whether or not the application asserts a change of circumstances. The appeal is not confined to applications made under section 7(1).

The court must intensely scrutinise whether each obligation remains necessary, while allowing appropriate deference to the Secretary of State on protective measures. Where Convention rights are engaged, proportionality applies. The court may address Convention-rights challenges before the full control-order hearing where the statutory language permits it.

AV and AU were each subject to non-derogating control orders made under the Prevention of Terrorism Act 2005. They applied to the Secretary of State for modifications to curfews, geographical restrictions and other obligations. Some modifications were granted, but the remaining requests were refused.

Neither appellant asserted that circumstances affecting the order had changed. They appealed under section 10(3)(b). The central issue was whether an assertion of changed circumstances was a precondition to such an appeal. The court also had to determine whether the individual restrictions were flawed or disproportionate.

1. Jurisdiction. The appeals were competent. Section 7 does not prohibit an application to the Secretary of State for modification where the controlled person does not consider that circumstances have changed. Section 7(2)(b) permits the Secretary of State to relax or remove an obligation at any time. Section 10(3) therefore confers a right of appeal against any decision on an application for modification, including a refusal, without limiting the appeal to section 7(1) applications.
2. The court is an appropriate tribunal for Convention-rights claims concerning control-order obligations. Judicial review might theoretically be available, but proceedings under the Act, governed by CPR Part 76 and adapted to accommodate Article 6, provide the appropriate mechanism for considering closed evidence and national-security concerns.
3. Under section 10(5)(b), the court determines whether the Secretary of State’s decision that an obligation remains necessary for purposes connected with preventing or restricting terrorism-related activity was flawed. The court cannot use this appeal to revisit the grounds for suspecting terrorism-related activity or the necessity of making the control order itself.
4. The court must apply judicial-review principles under section 10(6). Where Convention rights are engaged, the applicable principle is proportionality. This requires intense scrutiny of the necessity of each obligation, balanced with appropriate deference to the Secretary of State’s protective assessment.
5. Applying a structured proportionality assessment, the refusals concerning curfews, geographical boundaries, travel, visitors and pre-arranged meetings were not flawed. The restrictions pursued an important objective, were rationally connected with it and were no more than necessary on the assumed facts concerning each appellant’s senior position in the LIFG and recent activity. The appeals were rejected.
6. In AV’s case, the prohibition on electronic storage devices was necessary and proportionate, but paragraph 9.1(c) was modestly too wide because it included non-digital devices such as VHS tapes. The Secretary of State should consider adding “digital”.

Not stated in the judgment.