CB & Anor v Secretary of State for the Home Department

Where the Prevention of Terrorism Act 2005 requires a section 3(10) hearing, the court cannot use general case-management powers under the Civil Procedure Rules to impose a permanent stay merely because the control order has been revoked and continuation would consume substantial resources. A stay with that effect is, in substance, a discontinuance. Section 3(14) permits discontinuance only at the controlled person’s request. The statutory scheme requires the court to determine whether the Secretary of State’s decisions were flawed. The proceedings were therefore remitted for efficient determination, subject to careful management of costs, evidence and court time.

CB and BP appealed against an order of Silber J staying proceedings under section 3(10) of the Prevention of Terrorism Act 2005. The Secretary of State had revoked their non-derogating control orders after CB was detained pursuant to an extradition request and BP left the United Kingdom.

The High Court considered that the proceedings no longer served a useful purpose and that their continuation would impose disproportionate demands on legal, judicial and security-service resources. The appellants argued that the court lacked power to stay the proceedings, or had exercised any such power wrongly. The central issue was whether proceedings could be permanently stayed after revocation where the controlled persons did not request discontinuance.

Appeal allowed. Stanley Burnton LJ gave the principal judgment. The Master of the Rolls and Hallett LJ agreed. The order staying the proceedings was set aside and the matter was remitted to the Administrative Court for directions enabling the proceedings to be determined as soon and efficiently as possible.

1. The stay was not an interlocutory stay pending a specified event. Its intended effect was to end the proceedings without deciding whether the Secretary of State’s decisions were flawed. It was therefore a discontinuance in substance, whatever its label.
2. The statutory scheme in section 3 of the Prevention of Terrorism Act 2005 was a specific code governing the court’s supervisory role. Once directions for a hearing had been given under section 3(2)(c), the court had to determine the issues identified in section 3(10), subject to the controlled person’s right to request discontinuance under section 3(14). The general case-management powers in the Civil Procedure Rules were subject to that scheme.
3. Sections 3(12) and 3(13) did not authorise a permanent stay. If the control order had already been revoked and the court would otherwise conclude that it should continue in force, the statutory assumption of an order in force was inapplicable and the court could make no substantive order.
4. CPR Part 76 reinforced the conclusion. Proceedings had to be determined at a hearing, and the court could proceed on the material available if directions were not obeyed. Nevertheless, effective case management remained essential, including early identification of issues and evidence, tight timetabling and, where appropriate, costs management. The Master of the Rolls also emphasised the wider public interest in judicial supervision of intrusive executive powers.

• Court of Appeal (Civil Division): Allowed the appeal, set aside the stay order and remitted the proceedings to the Administrative Court for directions leading to their determination.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Silber J stayed the section 3(10) proceedings because the control orders had been revoked and continuation was considered disproportionate: [2011] EWHC 1990 (Admin).