BH v Secretary of State for the Home Department

The statutory power to impose control-order obligations is a comprehensive code. It does not authorise a general personal-search obligation, whether imposed directly or as a condition of varying curfew and boundary restrictions. A variation under the Prevention of Terrorism Act 2005 may lawfully require police escort, but a search condition must itself have statutory authority or valid consent. A purported non-statutory condition of doubtful enforceability cannot be used to circumvent the statutory scheme. The statutory appeal provides an adequate remedy for determining the legality of such arrangements, so judicial review may be refused.

BH was subject to a non-derogating control order under the Prevention of Terrorism Act 2005, including a twelve-hour curfew and a restricted geographical boundary. The Secretary of State agreed in principle to vary those obligations so that BH could attend a legal conference outside the boundary, but required police escort and personal searches before leaving his home and the solicitors’ offices.

BH challenged the refusal to vary the order unless he accepted the search condition, by both judicial review and a statutory modification appeal. The central issues were whether the search condition was an obligation imposed under the Act, whether such an obligation was authorised, and whether judicial review was necessary in addition to the statutory appeal.

1. Procedural remedy. The statutory appeal under section 10(3) of the Prevention of Terrorism Act 2005 gave the court adequate powers to determine the issue and provide guidance. Permission for judicial review was therefore refused.
2. Nature of the condition. A personal-search requirement imposed as a condition of relaxing curfew and boundary obligations was, in substance, a variation of the obligations under section 7(2)(c). If breached, it could expose the controlled person to prosecution under section 9(1). The Secretary of State’s submission that it was merely a non-statutory condition was rejected.
3. Statutory authority. Section 1 contained no express power authorising personal searches. Following Secretary of State for the Home Department v GG [2009] EWCA Civ 786, the general language of section 1(3) was insufficient to authorise such an obligation. The Secretary of State could restrict movement by requiring police escort, but that did not supply authority for a search.
4. Consent and enforceability. The court rejected the submission that consent to an escorted journey could operate as an irrevocable basis for a search on the return journey. Section 1 was a comprehensive code enforced by criminal sanctions, leaving no workable place for a different, non-statutory condition. The circumstances were materially different from those considered by Lord Neuberger in paragraph 43 of R(L)(FC) v Commissioner of Police of the Metropolis [2009] UKSC3.
5. Outcome. The refusal to relax the curfew and boundary unless BH accepted police escort was lawful and unflawed. No unauthorised obligation had in fact been imposed. The statutory appeal was dismissed.

The judgment does not state any prior appellate decision. The court determined a statutory modification appeal under section 10(3) of the Prevention of Terrorism Act 2005 and refused permission for judicial review.