BG v Secretary of State for the Home Department

On an appeal against renewal of a non-derogating control order, the court determines whether the renewal decisions are presently flawed under the renewal provisions. It does not reconsider whether the original order was justified or reopen findings made at the original hearing. Evidence is admissible only insofar as it bears directly on the present necessity for renewal or on the necessity of the renewed obligations. The court must assess current risk and proportionality, while treating the original findings as the starting point. A reduction in risk may justify relaxing obligations without making the order unnecessary. The cumulative effect of the remaining obligations must be proportionate to the risk and their impact on the controlled person and family.

BG appealed under section 10(1) of the Prevention of Terrorism Act 2005 against the second renewal of his control order. The order had originally been made after Mitting J found reasonable grounds for suspecting that BG had assisted associates to pursue terrorist-related travel and had planned to travel to Pakistan for terrorist training or fighting.

BG relied principally on evidence given by BF at BF’s subsequent criminal trial and BF’s acquittal. He argued that this evidence undermined the original findings and showed that continued control was unnecessary. The Secretary of State contended that the court could not revisit the original decision and that the order remained necessary, although its obligations had been reduced. The central issues were the proper scope of a renewal appeal, the admissibility and use of the BF evidence, and the necessity and proportionality of the renewed obligations.

1. Scope of the appeal. The statutory contrast between sections 2(1), 2(6), 3(10) and 10(4) of the Prevention of Terrorism Act 2005 was decisive. On a renewal appeal, the court does not determine whether the original decision under section 2(1)(a) was flawed. It must start from the position that the original control order decision was not flawed and cannot reopen the findings made at that stage.
2. Admissibility of evidence. Evidence is inadmissible if its only purpose is to show that the original order should never have been made, or to discount the original findings through that route. Evidence bearing directly on whether the renewal decision is presently flawed, or whether the renewed obligations remain necessary, is admissible even if it also tends to undermine earlier findings. The BF trial evidence was inadmissible for the purpose for which BG sought to rely on it.
3. Effect of the BF evidence. In any event, the evidence did not materially weaken the original findings. BF’s acquittal established only that the criminal jury was not satisfied beyond reasonable doubt. It did not displace the lower statutory evidential threshold, and the jury had not seen the closed evidence. The explanations concerning the letters, photographs, equipment, extremist material and farewell letter did not undermine the reasonable grounds for suspecting terrorist-related purposes.
4. Present necessity and proportionality. The control order remained necessary to protect the public from a risk of terrorism. The absence of intelligence showing fresh terrorist-related activity was relevant, but the original conduct, continuing risk of re-engagement, contact with associates and effect of the order in preventing activity remained material. The phased relaxation of obligations showed careful assessment of changing risk, but did not make the order unnecessary. The individual obligations and their cumulative impact were not disproportionate.
5. Special Advocates’ communication. The Secretary of State should not make forensic use of a communication from Special Advocates advising the appellant on the strength of a proposed argument. The communication procedure protects the Special Advocates’ ability to act in the appellant’s interests. This point did not affect the outcome.
6. Disposition. The appeal was dismissed.

BG appealed to the Administrative Court against the Secretary of State’s second renewal of his control order under section 10(1) of the Prevention of Terrorism Act 2005. The original control order had been considered by Mitting J at a hearing under section 3(10). An appeal against the first renewal was not pursued because it was overtaken by the second renewal and the present appeal.