Secretary of State for the Home Department v AE (Rev 1)

In control-order proceedings, Article 6 compliance is assessed by examining the process as a whole, including closed proceedings and the work of the special advocate. There is no minimum amount of open material which must invariably be disclosed. The court must scrutinise the withholding of material with care and considerable scepticism, but a finding of significant injustice will be exceptional where the special advocate procedure has operated effectively.

A 16-hour curfew is not automatically a deprivation of liberty, although its necessity and compatibility with Article 5 remain fact-sensitive. Existing restrictions which have adequately protected the public and have been observed create a strong presumption against strengthening them. That presumption may be rebutted by evidence of a continuing or different risk.

The Secretary of State imposed renewed non-derogating control orders on AE under the Prevention of Terrorism Act 2005. AE challenged the orders, the procedure involving closed material and a special advocate, and modifications made on 31 October 2007. The modifications increased his curfew from 14 to 16 hours and extended the visitor prohibition to non-curfew hours.

The proceedings followed earlier control-order decisions and the House of Lords decisions in Secretary of State for the Home Department v MB, [2007] UKHL 46, Secretary of State for the Home Department v JJ and others, [2007] UKHL 45, and Secretary of State for the Home Department v E and another, [2007] UKHL 47. The central questions were whether the orders and obligations were flawed, whether the procedure caused significant injustice, and whether the challenged restrictions were necessary and compatible with Article 5.

1. Article 6. The court applied the principles in Secretary of State for the Home Department v MB, [2007] UKHL 46, and Secretary of State for the Home Department v AF, [2008] EWCA Civ 117. There is no irreducible minimum of open material required in every control-order case. The court must assess the open and closed proceedings together and decide whether the procedure caused significant injustice.
2. The special advocate procedure places the controlled person at a grave disadvantage. The court and special advocate must probe the claim for secrecy with great care and considerable scepticism. Here, the special advocate obtained further disclosure, cross-examined the principal witness extensively and made detailed submissions. The closed material was strictly necessary to withhold, and the procedural safeguards sufficiently counterbalanced the disadvantage. AE’s Article 6 rights were therefore protected.
3. The court had to make its own objective assessment of whether there were reasonable grounds for suspicion. A control order may be justified by a matrix of facts established to differing degrees of certainty. The court concluded that the Secretary of State had reasonable grounds for suspecting AE’s involvement in terrorism-related activity and that the decision was not flawed.
4. The Secretary of State was entitled to conclude that the control order was necessary to protect the public. The offer of assisted return to Iraq did not undermine that conclusion because the return would have been controlled and visible.
5. A 16-hour curfew is not necessarily a deprivation of liberty under Article 5, but it is not automatically permissible. Necessity and proportionality remain fact-sensitive. The court must consider the competing interests, give intense scrutiny to each obligation, and explore less onerous means of achieving the same result. Monitoring resources may be relevant.
6. Where existing restrictions have protected the public and have been observed, there is a strong presumption that strengthened restrictions are unnecessary. That presumption was rebutted in relation to the curfew because AE continued to associate with Islamist extremists and the existing order did not adequately address the risk. The 16-hour curfew was necessary. The extended visitor ban, however, did not protect the public and was deleted.
7. AE’s appeals were dismissed except that the appeal against extending the visitor prohibition to non-curfew hours was allowed.

The judgment records earlier proceedings concerning AE’s control orders and the House of Lords decisions in related control-order cases. It does not state that the present judgment was itself an appeal from a lower court decision.