Secretary of State for the Home Department v AM

On an appeal concerning obligations under a non-derogating control order, the court must scrutinise intensely whether each challenged obligation is necessary to protect the public from terrorism-related activity. The obligation must be more than useful, reasonable or desirable. The court should accord appropriate deference to the Secretary of State’s assessment, while ensuring compliance with the controlled person’s right to a fair trial under Article 6.

The court may take account of the increased opportunity for terrorism-related activity created by unemployment, suspected attempts to access the internet, and possible extremist associations. Restrictions may remain necessary and proportionate even where they cause social isolation or may reveal the existence of the control order. Control-order obligations must also be clear and readily understood where breach may attract criminal sanctions.

A control order had been made against AM in June 2007 and renewed in June 2008. Following earlier modifications by Collins J, AM appealed against refusals to relax, and modifications of, obligations governing his curfew, visitors, meetings, mobile phones and visits to his parents’ home.

The appeal was brought under sections 10(3)(b) and 10(1)(b) of the Prevention of Terrorism Act 2005. The central issues were whether the challenged obligations were necessary and proportionate to protect the public, and how the court should treat closed material and AM’s Article 6 rights.

1. Scope of the appeal. The court could not question the reasonableness of the grounds for suspecting AM’s involvement in terrorism-related activity or the necessity of making the control order itself. Its critical function was to scrutinise the necessity of the individual obligations challenged on appeal.
2. Intensity and deference. Scrutiny had to be intense. The Secretary of State nevertheless had greater institutional and evidential advantages in assessing protective measures, so the court accorded a degree of deference to that assessment. The court also considered the requirements of Article 6 in evaluating closed material.
3. Curfew. A 12-hour curfew, beginning at 7 pm while AM was unemployed, was necessary and proportionate. The increased time available for terrorism-related activity, suspected attempts to obtain internet access or remove extremist material, and possible extremist associations justified the restriction. The request to remain out until 4 am for clubbing was also refused.
4. Visitors and meetings. Requiring AM to provide visitors’ addresses, and to provide names and addresses for people he wished to meet outside his flat, was justified because names alone might not identify them. The requirement that visitors switch off mobile phones and surrender them for inspection if requested was also necessary to prevent covert communication or internet access. The relevant meeting obligation was clarified because control-order obligations must be clear where breach may attract criminal sanctions.
5. Family visits and disposition. Limiting visits to AM’s parents’ home and prohibiting the use there of equipment capable of connecting to the internet were necessary and proportionate measures to prevent AM accessing the internet. The appeal was dismissed. Some reasons relied on closed material, but the court concluded that AM had not been deprived of a fair trial.

1. High Court (Administrative Court). Collins J had previously modified some obligations imposed by the control order. The present court determined AM’s subsequent statutory appeal and dismissed it.