AM v Secretary of State for the Home Department

On an appeal under section 10 of the Prevention of Terrorism Act 2005, the court must scrutinise intensely whether each control-order obligation remains necessary and proportionate, while allowing appropriate weight to the Secretary of State’s predictive assessment of national-security risk. The court must not reopen the statutory grounds for making the control order except in an exceptional case. The control-order regime, including renewal, modification applications, appeals and regular reviews, provides a sufficient opportunity to demonstrate that an order or obligation is no longer necessary. The regime does not impose a separate public-law duty to provide rehabilitation or an exit strategy comparable to that applicable to prisoners serving indeterminate sentences.

The Secretary of State imposed a non-derogating control order on AM under the Prevention of Terrorism Act 2005. The order was upheld on review by Wilkie J in [2009] EWHC 3053 (Admin), and AM’s appeal was dismissed by the Court of Appeal in [2011] EWHC 710 (Civ).

AM brought five appeals against refusals to modify obligations concerning monitoring calls, USB storage, home and university internet access, and equipment at his parents’ home. He alleged inadequate disclosure, breach of a public-law duty to provide a reasonable opportunity to demonstrate reduced risk, irrationality, procedural unfairness and disproportionality. The central issues were whether the Secretary of State’s decisions were flawed under section 10 and whether the statutory regime implied the asserted public-law duty.

1. Approach to section 10 appeals. The court’s task was to decide whether the Secretary of State’s conclusion that the obligations remained necessary was flawed, applying judicial-review principles under section 10. Necessity required more than reasonableness or utility. The scrutiny had to be intense and, where Convention rights were affected, proportionality applied. A degree of deference was appropriate because the Secretary of State was better placed to make evaluative and predictive judgments about national-security risk. The court also had to account for closed evidence and the Special Advocate’s limitations, following the approach summarised in CD v Secretary of State for the Home Department [2011] EWHC 1273.
2. Limits of the appeal. A section 10 appeal did not ordinarily permit reconsideration of whether there were reasonable grounds for suspecting terrorism-related activity or whether a control order was initially necessary. The court approached the appeals on the basis of the findings made by Wilkie J, whose reasoning had been described by the Court of Appeal as meticulous and compelling.
3. Article 6 and public-law duty. Disclosure was sufficient to enable AM to give effective instructions. The standard in AF (No 3) v Secretary of State for the Home Department [2010] 2 AC 269 did not require disclosure of every detail or source where sufficient allegations had been disclosed. The court rejected the proposed duty to provide a reasonable opportunity for controlled persons to demonstrate reduced risk. The statutory opportunities for review, renewal, modification and appeal, together with Control Order Review Group reviews, were sufficient. The analogy with IPP prisoners in R (Walker) v Secretary of State for Justice [2008] 1 All ER 138 was inapposite because the statutory regimes, risks and exit strategies differed.
4. Individual obligations. Given the continuing findings that AM was highly trained, dishonest and committed to terrorist activity, the monitoring calls remained necessary and proportionate. The restrictions on USB storage and internet-capable equipment were justified by the risks of extremist communications, attack planning, concealed or deleted data, and the inability to guarantee effective monitoring. The inconvenience to AM’s studies and family life did not outweigh the national-security risks. The Secretary of State’s refusals to modify the obligations were therefore not flawed.
5. Disposition. All five appeals were dismissed.

1. Court of Appeal AM’s appeal against Wilkie J’s review judgment was dismissed on 21 June 2011: [2011] EWHC 710 (Civ).
2. High Court (Administrative Court) The present court dismissed AM’s five appeals against refusals to modify the control-order obligations.