BM v Secretary of State for the Home Department

Article 6(1) ECHR applies to an appeal against a control-order modification which substantially interferes with the controlled person’s right to occupy a home. The fact that the measure is temporary, or that the person’s intended occupation is disputed, does not prevent the right from being determined. The minimum disclosure required for a fair hearing is not reduced merely because the proceedings concern one control-order obligation or engage Article 6 in its civil aspect. The controlled person must receive sufficient information about the allegations and their grounds to give effective instructions. If the Secretary of State cannot make that disclosure, the closed material cannot be relied upon in the appeal. The court may direct revocation of the modification, although the underlying decision may have been properly made on the full closed material.

BM appealed under section 10(1)(b) of the Prevention of Terrorism Act 2005 against a modification requiring him to reside in Leicester rather than at his homes in Ilford. He argued that the appeal determined his civil rights and obligations under Article 6(1) ECHR, and that he had not been given sufficient information about the national-security case for relocation.

The Secretary of State argued that the modification was an interim measure, that BM’s right to occupy the Ilford properties had little practical value, and that the disclosure required by Secretary of State for the Home Department v AF was confined to the more onerous control-order regime considered in that case. The issues were whether Article 6(1) applied and, if so, what disclosure was required.

1. Article 6(1). The appeal determined BM’s civil right to occupy his homes. The right to occupy land, including a home, is a classic civil right, and Article 6(1) applies even where the interference is for a limited period. The argument that the modification was merely interim, because BM allegedly did not intend to occupy the properties, failed. The modification had a significant and direct effect on the right. The appeal and the section 3(10) review also concerned the same apparent interference for a finite period.
2. Disclosure. The minimum standard identified in Secretary of State for the Home Department v AF applied. A controlled person must receive sufficient information about the allegations and the grounds supporting them to enable effective instructions. The court rejected a distinction based on the fact that the proceedings engaged Article 6 in its civil rather than criminal aspect, or concerned only relocation.
3. The open case relied on the Security Service’s assessment that BM presented an imminent risk of absconding. The grounds for that assessment were not disclosed. Since the Secretary of State declined to make the further disclosure identified by the court, the closed grounds could not be relied upon. On the open material alone, the assessment was groundless and the modification was flawed.
4. The court recognised that this was not the statutory test under section 10(5)(a), which required determination of whether the Secretary of State’s decision that the modification was necessary was flawed. The decision had in fact been made on properly considered closed material and would have been upheld on that material, despite its adverse effect on BM’s family. Nevertheless, applying the principles in AF, the court directed the Secretary of State under section 10(7)(c) to revoke the modification.

The judgment does not state a prior judicial decision determining the appeal. It records that permission for the control order had been granted by Ouseley J and that an injunction application had been refused by Blake J, but the present decision concerned BM’s appeal against the subsequent modification.