AT v Secretary of State for the Home Department

A criminal conviction for terrorism-related activity may support both the conclusion that a person has been involved in terrorism and the assessment that a control order remains necessary. The assessment may consider the conviction, its circumstances and subsequent events, including an absence of further activity. There is no rule requiring positive evidence of renewed terrorist activity.

Procedural fairness requires disclosure sufficient to enable the controlled person to give effective instructions about material allegations. A general allegation cannot be determined against that person by undisclosed evidence unless sufficient detail is provided. An open judgment relying on closed material for a significant issue must identify that reliance and demonstrate adequate notice of the case to be met.

The Secretary of State imposed a non-derogating control order on AT, a Libyan national and former member of the Libyan Islamic Fighting Group. Mitting J upheld the order after finding that AT remained a significant member of the organisation, possessed relevant skills and contacts, and might resume terrorism-related activity without restrictions.

AT appealed on issues concerning the effect of his earlier convictions, the relevance of the law governing proscribed organisations, alleged factual and administrative errors, and the adequacy of disclosure. The order had been revoked before the appeal, but the proceedings retained potential significance for compensation and the stigma associated with the order.

The central issue was whether the general allegation that AT remained a significant and influential member of the organisation had been determined through closed material without sufficient disclosure to permit effective instructions.

1. Appeal allowed on the disclosure ground. Permission to appeal was granted on that ground. The other grounds were dismissed, or permission was refused where it had not already been granted.

2. A previous conviction does not require the Secretary of State to produce positive evidence of renewed terrorism-related activity before making a control order. Once criminal proceedings have concluded, there is no choice between prosecution and a control order. The statutory questions are whether the person is or has been involved in terrorism-related activity and whether the order is necessary to protect the public. The conviction is relevant to both questions. The assessment may consider the offence, its circumstances and subsequent events, including an absence of further activity. Subject to irrationality, necessity and evidential weight are matters of factual judgment.

3. The approach to an inactive organisation under the proscription provisions of the Terrorism Act 2000 did not govern the assessment of an individual under the Prevention of Terrorism Act 2005. The former concerns whether an organisation is presently concerned in terrorism. The latter concerns the future risk presented by a person who has been involved in terrorism-related activity.

4. Procedural fairness required AT to receive sufficient information about the allegations to give effective instructions. The allegation that he remained a significant and influential member of the Libyan Islamic Fighting Group materially supported the finding of necessity. It was a general assertion, and the open material disclosed no evidential basis for rejecting his consistent denial. If supporting evidence existed only in the closed material, sufficient detail had to be disclosed. If no such material existed, the allegation lacked evidential support.

5. The lower court's statement that the closed material was not determinative left a fatal gap. Both the negative allegation that AT had not demonstrated unwillingness to assist the organisation and the positive allegation of continuing influence contributed materially to necessity. The open judgment had to stand on its own merits. Reliance on closed material to determine a significant issue had to be identified, and the judge had to ensure adequate notice of the case against the controlled person.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 42, granted permission on the inadequate-disclosure ground and allowed the appeal on that ground. It dismissed the remaining ground for which permission had been granted and refused permission on the other renewed grounds.
2. High Court, Administrative Court: Mitting J reviewed and upheld the non-derogating control order against AT, while quashing a related order against AW. The citation of AT's review judgment is not stated in the judgment.
3. Secretary of State: Made the non-derogating control order on 3 April 2008. It was revoked on 27 August 2009.