Secretary of State for the Home Department v AY

A control order may be imposed after an acquittal where the statutory conditions remain satisfied. An acquittal establishes that the prosecution failed to prove the charged offence to the criminal standard; it does not establish that there are no reasonable grounds for suspecting involvement in terrorism-related activity. The control-order regime is not an alternative to prosecution where a terrorism-related prosecution has a reasonable prospect of success. After an unsuccessful prosecution, however, the Secretary of State may rely on the available material, including material not deployed at trial, provided the requirements of the Prevention of Terrorism Act 2005 are met. The court must objectively assess reasonable grounds for suspicion, while giving appropriate deference to the Secretary of State on protective measures and applying intense scrutiny to each obligation.

The Secretary of State reviewed a non-derogating control order imposed on AY under section 3(10) of the Prevention of Terrorism Act 2005. AY had previously been prosecuted in connection with a terrorist plot and acquitted on the counts relevant to him. The Secretary of State continued to rely on material used at trial and on email evidence deployed at a retrial but not at the first trial.

AY argued that the acquittal, and the prosecution’s failure to use available evidence at the first trial, made a subsequent control order unlawful or an abuse of process. The issues were whether the statutory requirements for the order were flawed and whether each obligation remained necessary.

1. Preliminary issues dismissed. The acquittal did not prevent a control order based substantially on the same material. Sections 2(1) and 8 of the Prevention of Terrorism Act 2005 contained no such restriction. The governing principle identified in SSHD v E was that control orders should be made only where there was no reasonable prospect of successfully prosecuting the subject for a terrorism-related offence. That principle was satisfied after the acquittal, subject to any possible retrial under Part 10 of the Criminal Justice Act 2003.
2. The criminal and control-order assessments were materially different. The jury considered whether the prosecution had proved the elements of a specific offence to the criminal standard. The Secretary of State considered whether there were reasonable grounds for suspecting involvement in terrorism-related activity. An acquittal therefore did not establish that the latter test could not be met.
3. The Secretary of State was not bound by the prosecution’s decisions about the conduct of the trial. Section 8 required consultation with the chief officer of police concerning evidence that could realistically support a prosecution. It did not transfer prosecutorial decisions to the Secretary of State or prevent her from considering evidence not deployed at trial.
4. Applying SSHD v MB, the court objectively assessed whether the open material provided reasonable grounds for suspicion. The unchallenged evidence concerning AY’s associations, travel, extremist material, conduct, and the email evidence established that threshold.
5. The court gave due deference to the Secretary of State’s assessment of measures required to protect the public, while applying intense scrutiny to each obligation. Given the seriousness of the plot and the assessed continuing risk, the order and each obligation remained necessary.

The control order was confirmed and the review dismissed.

This was a High Court review under section 3(10) of the Prevention of Terrorism Act 2005 of a control order imposed on 28 July 2008 and renewed thereafter. The judgment records an earlier procedural order by Ouseley J protecting AY’s anonymity, but no separate lower-court merits decision.