Secretary of State for the Home Department v AV

A control order may be made lawfully where material is mistakenly included in the decision-making process, provided the Secretary of State did not found the decision, or place significant reliance, on that material. The decision-maker must receive information sufficient to ensure that legally relevant matters are considered, but need not receive every detail of a terrorism-related prosecution. The continuing necessity of a control order must be assessed in the circumstances existing when its continuation is challenged. Changed political circumstances may remove the real risk requiring protection, even where the original order and its renewal were lawful. In that event the order should be revoked rather than retrospectively quashed.

AV, a Libyan refugee and former senior member of the Libyan Islamic Fighting Group, was subject to a non-derogating control order following terrorism-related convictions. He challenged the Secretary of State’s decision to make and maintain the order, contending that the decision-making process was flawed, that there were insufficient grounds to suspect terrorism-related activity, and that the order was no longer necessary.

The challenge also concerned procedural fairness and the modification of individual obligations. During the proceedings, developments in negotiations between the Libyan authorities and LIFG leaders materially altered the assessment of the risk associated with AV. The central question was whether continuation of the control order remained necessary to protect the public from a risk of terrorism.

1. Decision to make the order. The reference to AV’s alleged Moroccan conviction should not have appeared in the Security Service submission. However, applying the policy established following A v Secretary of State for the Home Department (No. 2) [2005] UKHL 71, the Secretary of State was taken to have applied her policy against reliance on detainee reporting. The order was not founded, to any significant extent, on the conviction, so the decision was not flawed.
2. Relevant information. The submission inaccurately described the prosecution but correctly conveyed the substance of the terrorism-related materials. The principle stated in R (National Association of Health Stores and Anr) v Department of Health [2005] EWCA Civ 154 required the minister to know enough to ensure that legally relevant matters were not omitted. The sentencing remarks and the partly accepted basis of AV’s guilty pleas were not necessary to the decision whether reasonable grounds existed to suspect terrorism-related activity.
3. Reasonable suspicion. AV’s leadership role in the LIFG, his endorsement of material advocating training in weapons and explosives, and the evidence concerning documents found in his home established reasonable grounds to suspect involvement in terrorism-related activity within section 1(9) of the Prevention of Terrorism Act 2005.
4. Necessity. The March 2009 negotiations ruled out a real possibility that the LIFG would prepare or mount attacks against the Libyan government or its security organs while the talks continued. There was no reasonable basis to conclude that AV would frustrate the negotiations or independently relaunch terrorism-related activity. The original and renewed orders were therefore not quashed, but continuation was no longer necessary.
5. The control order was directed to be revoked under section 3(12)(c) of the Prevention of Terrorism Act 2005. The procedural and modification issues were academic and were not determined.

The judgment records that AV had previously appealed under section 10(3) of the Prevention of Terrorism Act 2005 against refusal to modify the order, and that appeal was dismissed in judgments handed down on 31 July 2008. The present judgment concerned the review of the decision to make and maintain the order.