Secretary of State for the Home Department v CB & Anor (Rev 1)

Control-order proceedings may be stayed under the court’s general case-management powers where the orders have been revoked and continuation would serve no useful statutory purpose. The statutory powers in section 3(12) of the Prevention of Terrorism Act 2005 are limited to quashing or modifying the order or directing its revocation. They do not extend to determining an alleged abuse of process based on disclosure failures. Even if such an issue could be addressed, the overriding objective requires consideration of proportionality, expense, judicial resources and the importance of the case. Proceedings are unlikely to provide a means of clearing a person’s reputation or obtaining damages where alternative civil proceedings are available.

The Secretary of State made control orders against CB and BP on 17 May 2010. The orders were revoked during an initial hearing under section 3(10) of the Prevention of Terrorism Act 2005. The respondents nevertheless wished the proceedings to continue, principally to challenge alleged failures to disclose material under Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, to clear their names and to preserve potential claims for damages.

The Secretary of State sought additional time to reconsider the open and closed material. The central issues were whether the court had power to stay the section 3(10) proceedings, whether those proceedings could determine an abuse of process based on disclosure, and whether continuation was justified after revocation.

1. Power to stay. Subject to CPR 76.2(2), the overriding objective applies to control-order proceedings. CPR 3.1(2)(f) and (m) confer general case-management powers, including power to stay proceedings and make orders furthering the overriding objective.
2. Statutory function. Section 3(10) proceedings determine whether the Secretary of State’s decisions were flawed. Under section 3(12), the court’s only powers are to quash the order, quash obligations, or direct revocation or modification. Those powers have no practical relevance once the orders have been revoked. The statute does not confer a power to determine an abuse of process based on non-compliance with disclosure duties.
3. Disclosure issue. The function of section 3(10) proceedings is to assess whether the decision was flawed by reference to all the evidence before the court, including material later disclosed. It is not to determine whether sufficient material was disclosed when the order was made or whether the Secretary of State acted with an improper intention concerning disclosure. Secretary of State for the Home Department v MB [2007] QB 415 was applied. AN and others v Secretary of State [2010] EWCA Civ 869 was distinguished because it concerned materially different circumstances, including an admission that the orders would not have been pursued had the law been understood correctly.
4. Overriding objective. Even if the proceedings could determine the alleged abuse, continuation would be disproportionate. The orders had been short-lived and revoked, reimposition was highly unlikely, substantial legal and court resources would be required, and other control-order cases faced a backlog. The respondents had alternative civil claims in which ordinary public-interest-immunity principles would apply, following Al Rawi v The Security Services [2010] 3 WLR 1069, upheld by the Supreme Court at [2011] UKSC 34.
5. The proceedings would not determine whether the respondents had engaged in terrorism. The statutory inquiry concerned the Secretary of State’s reasonable grounds for suspicion and assessment of necessity. The limited likely value of any damages claim, assessed by reference to A v United Kingdom (2009) 49 EHRR 29, also supported a stay.
6. The section 3(10) proceedings were stayed. The anonymity orders were discharged with the respondents’ consent.

Not stated in the judgment.