AM v Secretary of State for the Home Department

On statutory review of a non-derogating control order, the court applies judicial review principles to the Secretary of State’s decisions and assesses the continuing position at the date of determination. Reasonable grounds for suspicion require an objective assessment. The choice of protective measures attracts appropriate deference, but each obligation must receive intense scrutiny for necessity, with less intrusive alternatives considered where relevant. Procedural fairness requires sufficient disclosure to understand and answer the case; national security may require closed material and a Special Advocate. There is no improper delegation where the Security Service supplies evidence and advice but the Secretary of State makes the final decision. An order is not made for an ulterior purpose merely because intelligence officers consider a person’s willingness to engage or provide information when assessing risk.

AM appealed against Wilkie J’s statutory review of a control order imposed in June 2007 and renewed in 2008 and 2009. The decision under appeal was reported at [2009] EWHC 3053 (Admin). The order required residence at a specified address, imposed a curfew and tagging, restricted visitors and meetings, and permitted searches.

The appeal alleged procedural unfairness, inadequate disclosure and evidence, failure to consider material matters, improper delegation and an ulterior purpose. The central issue was whether the Secretary of State’s decisions or the individual obligations were flawed under sections 3(10) and 3(11) of the Prevention of Terrorism Act 2005.

1. Appeal dismissed. Lord Justice Laws delivered the judgment. Lord Justice Jackson and Lord Justice Tomlinson agreed. The court found nothing in any of the five grounds of appeal and regarded Wilkie J’s detailed reasoning as compelling.
2. On statutory review under sections 3(10) and 3(11) of the Prevention of Terrorism Act 2005, the court applies judicial review principles. The continuing decision is assessed as at the date of determination. The approach in MB was followed: reasonable grounds for suspicion involve an objective assessment; appropriate deference is due to the Secretary of State’s choice of protective measures; and each obligation requires intense scrutiny for necessity, including consideration of alternatives where obligations are onerous or intrusive. The approach to reasonable suspicion in O’Hara was also applied.
3. The procedural fairness grounds failed. The allegations at the heart of the case had been clearly communicated through written material and witness statements. The appellant had the opportunity to answer them in evidence. Where national security restricted disclosure, he had the assistance of a Special Advocate in closed proceedings. The procedural protection required by Article 6 was therefore provided.
4. Section 4 of the Civil Evidence Act 1995 had no application. CPR 76.26 disapplied CPR Parts 32 and 33. The court could receive oral or written evidence, documentary evidence in any form, and evidence that might otherwise be inadmissible.
5. The challenge based on material considerations failed. The Security Service’s provision of evidence and advice did not amount to improper delegation because the Secretary of State retained the final decision and was not bound to accept that advice. The matters said to require further investigation had been considered, and additional material could not alter the conclusion reached on the existing evidence.
6. The control order was not imposed for an improper or ulterior purpose. In assessing risk and advising the Secretary of State, the Security Service was entitled to consider a person’s willingness to engage, admit past conduct, provide information or abandon terrorist activity. The Secretary of State’s decision remained directed to protecting national security. The order accordingly continued in force.

• Court of Appeal (Civil Division). The appeal was dismissed. The court upheld Wilkie J’s conclusion that none of the challenged decisions or obligations was flawed.
• Administrative Court. Wilkie J conducted a statutory review under the Prevention of Terrorism Act 2005, giving open, in camera and closed judgments. Permission to appeal was granted. The decision is reported at [2009] EWHC 3053 (Admin).