Secretary of State for the Home Department v AU

A Control Order may lawfully be imposed after a successful terrorism-related prosecution where the Secretary of State reasonably suspects further terrorism-related activity or considers continuing preventive measures necessary for public protection. The criminal proceedings do not restrict the material or reasoning on which the order may be based.

Procedural fairness is assessed in all the circumstances. Disclosure of the gist of the essential allegations may suffice; disclosure of the whole evidential case is not invariably required. A sixteen-hour curfew is at the outer limit of lawful non-derogating control orders. Whether it amounts to a deprivation of liberty depends objectively on the individual’s circumstances, including curfew length and social isolation.

AU, a Libyan national and recognised refugee, had pleaded guilty to a terrorism-related offence under the Terrorism Act 2000 and had served a custodial sentence. After his release, the Secretary of State made a non-derogating Control Order under the Prevention of Terrorism Act 2005, imposing residence, curfew, movement, association and visitor restrictions.

AU challenged the decision to make and maintain the order, and four obligations in particular. The issues were whether the criminal proceedings constrained the Secretary of State’s decision-making, whether the disclosure procedure was fair, whether there were reasonable grounds for suspecting further terrorism-related activity, whether the obligations deprived AU of liberty, and whether the order and its challenged obligations were necessary and proportionate.

1. Criminal proceedings. The conviction did not prevent the Secretary of State from relying on the facts underlying the prosecution or on other material known to the authorities. Section 8 of the Prevention of Terrorism Act 2005 did not prohibit a Control Order after a successful prosecution. The order remained preventative, and could address further or continuing terrorism-related activity. AU was taken to have committed the convicted offence by virtue of section 11(2)(a) of the Civil Evidence Act 1968.
2. Procedure. Applying the majority decision in Secretary of State for the Home Department v AF, AM and AN [2008] EWCA Civ 1148, fairness depended on all the circumstances. AU had received a sufficient gist of the broad grounds relied upon. The Secretary of State was not required to disclose the whole evidential basis.
3. Substantive case. The court was satisfied to the criminal standard that AU had been a senior figure in the Libyan Islamic Fighting Group, had participated in fundraising and provision of money and documents for terrorism-related purposes, had transferred money for such a purpose, and had re-engaged in extremist activity after his earlier release. These matters established reasonable grounds for suspicion.
4. Liberty. Applying Secretary of State for the Home Department v JJ [2008] 1 AC 385, the assessment was objective. Curfew length was the starting point, and social isolation was significant. A sixteen-hour curfew was at the outer limit of legality, but did not deprive AU of liberty because he could live with his family in adequate accommodation. The order was distinguished from Secretary of State for the Home Department v AP [2008] EWHC 2001, where the curfew effectively separated the controlled person from his family.
5. Necessity. Giving appropriate deference to the Secretary of State’s assessment, the court upheld the order and the four challenged obligations. They were necessary and proportionate to inhibit AU’s return to an active and senior role in the LIFG and to protect the public from terrorism-related risks.

The judgment records that AU had previously appealed against modifications to an earlier Control Order, and that the court dismissed that appeal on 31 July 2008: [2008] EWHC 1895 (Admin). The present proceedings challenged the making and continuation of the later Control Order. The Control Order and its individual obligations were upheld.