Secretary of State for the Home Department v GG

In reviewing a control order, the court must itself decide whether the evidence establishes reasonable grounds for suspicion. The necessity and proportionality of the order and each obligation require intense scrutiny, although appropriate weight is given to the Secretary of State’s assessment of national-security risks.

Article 6 requires a fair hearing assessed in all the circumstances. Where disclosure is withheld for national-security reasons, the court must consider whether the procedure causes fundamental unfairness. Terrorism-related activity may include conduct supporting terrorism abroad. A personal search cannot be imposed under the Prevention of Terrorism Act 2005 without clear statutory authority. Article 5 depends on the overall effect of the restrictions, including curfew and social isolation.

GG and NN, Iraqi Kurdish nationals, were subject to control orders imposed after their arrests in Operation KNOP and the failure to obtain evidence sufficient for criminal prosecution. The orders were renewed in July 2008 under the Prevention of Terrorism Act 2005.

The court considered appeals against the renewals and against particular obligations. The issues included reasonable suspicion, Article 6 disclosure, the continuing necessity and proportionality of control orders, whether the restrictions amounted to deprivation of liberty under Article 5, the statutory power to require personal searches, the breadth of a prohibition on religious advice, and the proportionality of requiring GG to live away from his wife and stepchildren.

1. NN. The court accepted that there had initially been reasonable grounds for suspicion and that a control order had originally been justified. However, the suspected activity was limited to support for terrorism-related activities in Iraq, and there was no evidence that NN had continued such activity or was likely to resume it. The control order was therefore no longer necessary and was quashed.
2. Applicable approach. Applying Secretary of State for the Home Department v MB [2007] Q.B. 415, the court had to assess the facts itself and decide whether they amounted to reasonable grounds for suspicion. Necessity and proportionality were matters for judgment. Some deference was due to the Secretary of State, but the court was required to give intense scrutiny to the order and each obligation.
3. Article 6. The principles explained in Secretary of State for the Home Department v MB [2008] 1 A.C. 440 and Secretary of State for the Home Department v AF [2008] EWCA Civ 1148 required the court to assess fairness overall. There were no rigid disclosure rules. In this case, the disclosure and work of the special advocates enabled a fair determination. Further disclosure was unnecessary.
4. GG. Terrorism-related activity under section 1(9) of the Prevention of Terrorism Act 2005 included conduct supporting, facilitating or encouraging terrorism in Iraq. The absence of criminal liability for some conduct at the relevant time did not remove its significance when assessing the need for protective restrictions. The evidence established a continuing risk that GG might support or encourage terrorism-related activity.
5. Article 5. Following Secretary of State for the Home Department v JJ [2008] 1 A.C. 385, the curfew could not be considered in isolation. The overall effect of the restrictions, particularly social isolation, was material. Although the case was borderline, GG’s removal to Chesterfield, the absence of visitor restrictions, and his ability to mix with others meant that the 16-hour curfew did not amount to deprivation of liberty.
6. Personal searches. Section 1(4) of the 2005 Act was non-exhaustive, but its general wording did not authorise a personal search. A search of the person was a trespass and required clear statutory authority. The obligation was removed.
7. Other obligations and residence. Because breach of an obligation was a criminal offence, the prohibition on religious advice had to be clear and was narrowed to prohibit statements reasonably understood as encouraging, glorifying, inducing or assenting to violent offences. The requirement that GG live in Chesterfield was not upheld. His wife’s and children’s Article 8 interests had to be considered, and the fact that another police force would have responsibility was insufficient by itself to justify refusing a move.

• House of Lords: In the related control-order litigation, the House dismissed the Secretary of State’s appeal and held that an 18-hour curfew with associated restrictions could amount to deprivation of liberty: [2008] 1 A.C. 385.
• Court of Appeal: Earlier control orders were quashed or upheld on appeal in the related proceedings, and the Article 6 approach was addressed in Secretary of State for the Home Department v AF [2008] EWCA Civ 1148.
• High Court: This court quashed NN’s order, dismissed the appeals against renewal of GG’s order, removed the personal-search obligation, narrowed the religious-advice prohibition and declined to uphold the requirement that GG live in Chesterfield.