AR v Secretary of State for the Home Department

In an appeal against refusal to modify a control order, the court must apply rationality and proportionality, while allowing appropriate weight to the Secretary of State’s assessment, particularly where it is based on Security Service advice. A restriction is lawful if it forms part of a package directed to the statutory purpose and is not shown to exceed what is reasonably required. The absence of evidence of practical disadvantage may be material. Boundaries are an important part of such a package, and exceptions should be made only where unavoidable. An academic issue may still be determined where it may recur.

AR appealed under section 10(3) of the Prevention of Terrorism Act 2005 against refusal to modify a control order imposed in April 2008 and renewed in April 2009. He sought reductions to the curfew, enlargement of the geographical boundary, permission to attend an English course and an NHS dentist outside the boundary, and permission for his solicitors to keep mobile telephones switched on during visits. The Secretary of State later enlarged the boundary to include substantially the built-up area of Bolton and agreed to the telephone request. The central issue was whether the refusal decisions were flawed on judicial review principles.

1. The appeal was dismissed in relation to the disputed modifications. The court applied rationality and proportionality under sections 10(5)(b) and 10(6) of the Prevention of Terrorism Act 2005. It was required to show a degree of deference to the Secretary of State’s decisions based on Security Service advice, as stated in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140.

2. The twelve-hour curfew was rationally connected with the statutory purpose. Although the judge considered that a modest reduction might be appropriate during the light summer evenings, the Secretary of State could reasonably reach a different conclusion. Proportionality was finely balanced, but AR had supplied no evidence of practical disadvantage. The obligation was therefore not more than reasonably required.

3. The refusal to extend the boundary to Rochdale and Cheetham Hill was not flawed. The boundary was a significant part of the overall package of obligations. Exceptions should be made only where unavoidable.

4. The refusal of permission to attend the Bury College ESOL course was justified because no reasonably practicable safeguards could prevent access to internet-connected computers at the college. The issue was academic because the course had ended, but it was determined because it might recur.

5. The refusal to permit attendance at the Smile Dental Practice was lawful. It was unnecessary to resolve whether a suitable NHS practice existed within the original boundary. The expanded boundary increased the opportunity to find an NHS dentist within it. The solicitors’ mobile-phone issue had been resolved by agreement.

Under sections 1(9) and 15(1) of the 2005 Act, the definition of terrorism-related activity included action for the benefit of a proscribed organisation through section 1(5) of the Terrorism Act 2000. Pending a peace agreement accepted by the bulk of LIFG members, the Secretary of State was entitled to remain cautious.

The judgment does not state a prior appellate decision. It refers to the earlier control-order review decision, [2008] EWHC 3164 (Admin), but that decision concerned the same litigation and was not an appellate stage of this judgment.