Secretary of State for the Home Department v BF

In reviewing a non-derogating control order, the court must assess whether the statutory requirements were satisfied both when the order was made and at the hearing. The court must determine for itself whether the evidence affords reasonable grounds for suspicion, while applying appropriate deference to the Secretary of State’s national-security assessment on necessity and proportionality. Each obligation requires intense scrutiny. The Prevention of Terrorism Act 2005 does not impose a separate public-law duty to provide a specified rehabilitation or de-radicalisation opportunity. It requires regular and meaningful review of the order and its obligations, with potential modification, revocation, non-renewal or other exit routes kept under review. A criminal acquittal does not itself invalidate a control order based on a different statutory test and evidential material.

The Secretary of State made a non-derogating control order against BF under the Prevention of Terrorism Act 2005. The order imposed extensive restrictions, including residence, curfew, electronic monitoring, reporting, association, computer, travel and boundary restrictions.

BF had previously faced a control order, criminal proceedings and stringent bail conditions. He was acquitted of a terrorism offence concerning a proposed journey to Pakistan. A new control order was made on 10 November 2010. At the statutory hearing, BF challenged both the decision to make and maintain the order and each obligation imposed. He also sought a declaration that the Secretary of State was under a public-law duty to provide a reasonable opportunity to demonstrate that the restrictions were no longer necessary. The central issues were whether the Secretary of State’s decisions were flawed and whether the statutory scheme imposed that additional duty.

1. Statutory approach. The court applied the principles identified in Secretary of State for the Home Department v MB [2007] QB 415; [2006] EWCA Civ 1140. It independently assessed whether the evidence established reasonable grounds for suspecting involvement in terrorism-related activity under section 2(1)(a). Necessity under section 2(1)(b) involved a value judgment concerning protection of the public. Proportionality applied, with appropriate deference to national-security assessments but intense scrutiny of each obligation.
2. The court had to assess the Secretary of State’s decisions both at the date the order was made and at the date of the hearing. On the totality of the evidence, including the circumstances of BF’s travel, his associations, the farewell letter, inconsistencies in accounts and continuing risk assessments, the statutory requirements were satisfied and the decisions were not flawed. The criminal acquittal did not determine the issue because the criminal standard and charge differed and the evidence before the court was not identical.
3. Public-law duty. The Act provided regular review and opportunities under sections 3, 7 and 10 to make representations, seek modification and obtain judicial scrutiny. It therefore supplied mechanisms by which a controlled person could show that an order or obligation was no longer necessary. The statutory language and policy statements concerning exit strategies did not create a freestanding duty to provide a particular course, programme or other specified opportunity.
4. The analogy with imprisonment for public protection was rejected. The statutory scheme, status of the persons concerned, indeterminate character of IPP sentences and available exit routes differed materially. The existing review arrangements were regular and meaningful, and potential exit strategies—including modification, revocation and non-renewal—had to remain under review, though no particular strategy was required at any given time.
5. Each obligation was separately considered and remained necessary and proportionate in the circumstances. Parity with restrictions imposed on another controlled person was not required because the assessments, history of compliance and duration of the respective orders differed. The control order and every obligation were upheld.

This was a first-instance statutory hearing. The judgment records that permission for the new control order was granted by Ouseley J on 10 November 2010. No appeal from the present decision is stated.