BX v Secretary of State for the Home Department

A modification of a non-derogating control order may be challenged by judicial review, and the High Court has power to grant interim relief. Where an adequate statutory appeal exists, however, parallel judicial review proceedings will ordinarily be unnecessary; the appropriate route is an interlocutory application within the appeal.

The interim applicant must show a strong arguable case that the decision is flawed. The court must assess the public interest, urgency and interference with fundamental rights. Article 6 safeguards at the interim stage need apply only so far as compatible with the nature and purpose of urgent proceedings. The Secretary of State must consider the individual’s circumstances and likely disclosure obligations, but need not always invite representations before urgent action.

BX was subject to a non-derogating control order under the Prevention of Terrorism Act 2005. After permission had been granted for the order, the Secretary of State modified it under section 7(2)(d) to require BX to relocate from London. Three days’ notice was given.

BX challenged the modification by judicial review and by an appeal under section 10. He sought an oral hearing, interim relief preventing relocation, disclosure and the appointment of a special advocate. Collins J refused the applications on the papers, holding that the statutory appeal was the appropriate route and that the material justified urgent relocation. The central issues were whether judicial review and interim relief were available, and what procedural fairness and Article 6 required before the modification took effect.

The Court of Appeal unanimously dismissed the appeal.

1. Jurisdiction. Section 11 of the Prevention of Terrorism Act 2005 did not exclude the High Court’s jurisdiction to judicially review a control-order decision. That jurisdiction included urgent consideration and an interlocutory injunction. The court also had power to grant interlocutory relief within an appeal against modification under section 10.
2. Proper procedural route. Although both routes existed, parallel judicial review proceedings were ordinarily unnecessary and wasteful where the section 10 appeal provided an adequate remedy. The proper route was an interlocutory application in the appeal, coupled where necessary with an expedited disclosure hearing and appeal hearing. This approach was consistent with BM and Others v Secretary of State for the Home Department [2009] EWHC 1159 (Admin).
3. Interim relief. The applicant had to show a strong arguable case that the Secretary of State’s decision was flawed. The balance of convenience had to be assessed in the context of the Secretary of State’s public duty. That required attention both to the public interest in preventing terrorism-related activity and to the individual’s fundamental rights.
4. Article 8 and procedural fairness. The court considering a section 10 appeal had to take account of the interference with family and private life when deciding whether the modification decision was flawed. The Secretary of State had to consider the controlled person’s personal circumstances before deciding to modify the order. There was no universal requirement to invite representations before implementation: urgent action, including action where notice would jeopardise national security, could justify proceeding without prior representations.
5. Article 6 and disclosure. Following Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28 and A v United Kingdom The Times, 20 February 2009, the Secretary of State had to make the modification decision conscientiously with the likely disclosure requirements of any challenge in mind. He need not predict the precise outcome of the disclosure hearing, but could not intend to withhold disclosure necessary to make the section 10 process Article 6 compliant.
6. Interim safeguards and outcome. At the interlocutory stage the judge could examine the open and closed material, determine whether there was a strong arguable case, and decide whether to preserve or restore the status quo. An oral hearing might be appropriate in a particular case, but full Article 6 safeguards did not necessarily have to precede urgent implementation. Collins J had sufficient material and written representations to make an informed decision, and his refusal of relief was not wrong. The appeal was dismissed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court held that judicial review jurisdiction existed, but that an interlocutory application within the section 10 appeal was ordinarily the proper route.
2. High Court, Queen’s Bench Division: Collins J refused an oral hearing and interim injunctive relief against relocation on 12 November 2009.