Secretary of State for the Home Deparment v AN

Where the essential grounds for a control order have been withdrawn, the court cannot retrospectively uphold the original decision by relying on residual material which was not the basis of the decision and has not been properly disclosed or gisted. The decision is therefore flawed.

An order lawfully made at inception is not a nullity merely because it can no longer be sustained at the statutory review stage. The court may direct its revocation rather than quash it. A fresh order may be considered on the basis of material which remains available.

The Secretary of State had made and renewed a control order against AN under the Prevention of Terrorism Act 2005. The court had previously ordered disclosure by reference to the approach then understood from Secretary of State for the Home Department v MB & Others [2007] UKHL 46. The House of Lords later quashed that decision and remitted the matter for reconsideration.

The Secretary of State withdrew the material which had represented the essence of the case against AN, but sought to rely on other material in the original Security Service submission. The issues were whether the original decision remained capable of being upheld on that residual material, whether the order was a nullity, and whether it should be quashed or revoked.

1. The decision to make and continue the control order was flawed. The material withdrawn had represented the essence of the case against AN. The court could not perform the statutory review under section 3(10) of the Prevention of Terrorism Act 2005 by reconstructing the Secretary of State’s decision from residual material which had not been at the forefront of the minister’s mind and had not been properly disclosed or gisted.

2. The position would differ where the Secretary of State relied on several distinct and independently sufficient grounds. The withdrawal of one or more less significant grounds would not prevent the court determining whether the decision was flawed on the remaining grounds.

3. The order was lawful at inception and was not a nullity. The Secretary of State and the judge granting permission had jurisdiction to act on closed material. The obligation to disclose or gist the essence of the case arose when the decisions were reviewed under section 3(10). The court applied the requirement that the proceedings be considered as a whole, identified in Secretary of State for the Home Department v MB & Others [2007] UKHL 46, and the disclosure requirement applied in Secretary of State for the Home Department v AF & Others [2009] UKHL 28.

4. The court had a discretion under section 3(12)(a) and (c) to quash the order or direct its revocation. Because the order had been properly made and renewed but could no longer be sustained after the withdrawal of its essential grounds, the appropriate course was to direct revocation. Quashing would have consequences for the outstanding breach charge, including the statutory consequence concerning convictions.

5. It might constitute an abuse of process to seek permission for a control order which the Secretary of State intended from the outset not to sustain at review after the clarification in AF. That consideration did not apply here, because the Secretary of State had reasonably expected the order to be upheld on properly withheld closed material. The Secretary of State remained free to consider a fresh order on the disentangled material.

1. House of Lords: an earlier closed-disclosure decision in the same proceedings was quashed on 10 June 2009 and the matter was remitted for reconsideration.

2. High Court (Administrative Court): reconsidered the matter and directed revocation of the control order rather than quashing it.