CD v Secretary of State for the Home Department

On an appeal under section 10 of the Prevention of Terrorism Act 2005, the court examines whether the challenged modification was flawed by applying judicial-review principles. Where Convention rights are engaged, the court must scrutinise necessity intensely and apply proportionality, while allowing appropriate deference to the Secretary of State’s predictive assessment of security risk.

Relocation is a substantial interference with private and family life. It may nevertheless be proportionate where the evidence establishes a real and immediate terrorism risk and relocation materially reduces that risk. The court should consider less intrusive alternatives, including measures that reduce the isolating effects of relocation. A travel allowance may therefore be an appropriate variation where the family bears costs arising solely from the relocation.

The appellant was subject to a non-derogating control order under the Prevention of Terrorism Act 2005. The order was modified under section 7(2)(d) to require him to reside outside Greater London. He appealed under section 10, challenging relocation only.

The Secretary of State accepted that relocation interfered with the appellant’s and his family’s Article 8 rights, but maintained that it was necessary and proportionate because of the appellant’s assessed involvement in attack planning, attempts to obtain firearms, covert meetings with associates and high security awareness. The central issue was whether the relocation decision was flawed and whether its effects should be mitigated.

1. Appeal dismissed. Applying sections 10(5)(a) and 10(7) of the Prevention of Terrorism Act 2005, the court held that the Secretary of State’s decision was not flawed.
2. Under section 10, the court determines whether the challenged modification was flawed by applying judicial-review principles. The appeal does not ordinarily reopen whether there were reasonable grounds for suspecting involvement in terrorism-related activity or whether the control order itself was necessary. Those matters fell to be considered at the substantive section 3(10) hearing.
3. The court must scrutinise the necessity of the particular obligation intensely. Where Convention rights are affected, proportionality applies. The Secretary of State receives a degree of deference because she is better placed to make evaluative and predictive judgments about security risks, but that deference does not remove the court’s duty to examine each obligation closely and consider alternative means of achieving the same result. This approach was drawn from Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, AM v Secretary of State for the Home Department [2009] EWHC 572 (Admin) and AV and AU v Secretary of State for the Home Department [2008] EWHC 1895 (Admin).
4. Relocation outside Greater London substantially interfered with Article 8 rights, but the evidence showed an immediate and real risk of terrorism-related attack. The appellant’s background, attempts to obtain firearms, covert meetings with associates and security awareness justified the conclusion that remaining in London presented a significant risk despite the other restrictive obligations. The associate’s current residence outside London carried little weight because he remained free to travel to London.
5. The court should not ordinarily substitute its own choice of property or location where the Secretary of State had considered security, family, social, religious, employment and accommodation factors. However, the appellant could raise the suitability of an alternative London location at the section 3(10) hearing.
6. The Secretary of State should reimburse at least part of the appellant’s family travel costs. This was a proportionate means of reducing the onerous and isolating effect of relocation and was the type of variation contemplated in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140 at [65]. The closed material reinforced, rather than undermined, the open evidence.

High Court (Administrative Court): The appellant appealed against the section 7(2)(d) modification requiring residence outside Greater London. The appeal was dismissed because the Secretary of State’s decision was not flawed.