BM v Secretary of State for the Home Department

Under section 3(10) of the Prevention of Terrorism Act 2005, the court must first review whether a control-order decision was flawed when made, using the evidence and reasons then available. If it was valid, the court must also review the continuing decision to maintain the order at the date of determination. Later evidence cannot cure an initially flawed decision. Where the open evidence does not establish necessity and the closed material is not before the appellate court, remittal is not automatic. Delay and the availability of a fresh order may justify revocation with retrospective effect.

The Home Secretary made a non-derogating control order against BM under the Prevention of Terrorism Act 2005. Saunders J upheld the order, concluding that it was necessary to protect the public. The judge approached the issue by reference to the position at the date of his determination, rather than the date on which the order was made. BM appealed, challenging that approach and the proposed treatment of a later modification requiring relocation to Bristol. The central issues were the temporal scope of the court’s review, whether the matter should be remitted for consideration of closed material, and the appropriate remedy.

1. Appeal allowed. Thomas LJ, with whom Hooper and Sedley LJJ agreed, set aside the decision of Saunders J. Under section 3(10) of the Prevention of Terrorism Act 2005, the court must apply judicial-review principles in two stages. It must first determine whether the Home Secretary’s decision was flawed when the control order was made. If it was not flawed, the court must then consider whether the continuing decision to maintain the order was flawed at the date of determination. This reflected the approach in SSHD v MB [2006] EWCA Civ 1140, [2007] QB 415.
2. The initial decision had to be assessed by reference to the evidence before the Home Secretary and the reasons relied on at that time. Later evidence could not validate a decision which was invalid when made, particularly because breach of a control-order obligation was a criminal offence under section 9. Saunders J had not carried out that initial review.
3. On the open evidence, the control order could not be shown to have been necessary when made. The evidence established historical terrorist activity and contained assertions concerning BM’s brothers, but did not provide a sufficiently firm basis for concluding that the existing designation controls were inadequate. The material was vague and speculative. The court did not need to determine the separate argument concerning reasonable grounds for suspecting current terrorism-related activity.
4. Remittal was refused. The appellate court had not been provided with the closed judgment or closed evidence and was not in a position to determine whether further disclosure was required or to assess the order on the totality of the material. The substantial delay was an overriding consideration, and the Home Secretary could protect the public by making a fresh order if the statutory conditions remained satisfied. The reasoning in AN v SSHD [2010] EWCA Civ 869 supported the concern that undisclosed material could not be used to avoid scrutiny of the original decision.
5. A modification made while the original proceedings were still before the judge had to be considered under section 3(10)(b), including at the date of determination. The judge could postpone that issue for case-management reasons, but could not transfer it into a separate appeal under section 10(1).
6. Under section 3(12)(c), the court directed the Home Secretary to revoke the control order 48 hours after hand-down, with effect from the date on which it was made. The criminal proceedings for breach therefore could not continue. The court also observed that control-order proceedings required much greater expedition, that any appeal proceeding only on an open judgment should be addressed at an advance directions hearing, and that judgments should ordinarily be either open or, where lawfully necessary, closed, without an intermediate confidential annex.

1. Court of Appeal (Civil Division). Appeal allowed. The court set aside the High Court decision, declined to remit the matter, and directed revocation of the control order with retrospective effect: [2011] EWCA Civ 366.
2. High Court of Justice, Queen’s Bench Division (Administrative Court). Saunders J upheld the control order: [2009] EWHC 264 (Admin).