Secretary of State for Home Department v AM

Under the Terrorism Prevention and Investigation Measures Act 2011, previous control-order restrictions do not prevent the Secretary of State from imposing a TPIM notice based on terrorism-related activity that preceded the control order. The statutory conditions must still be satisfied, and the existence and duration of the control order are relevant to whether further measures remain necessary.

In reviewing a TPIM notice, the court applies judicial-review principles with heightened scrutiny. Preventative measures may remain proportionate where the past conduct involved a grave terrorism risk and there is insufficiently convincing evidence of renunciation. Individual measures must nevertheless be necessary and proportionate. A notification requirement that materially inhibits social rehabilitation or operates ineffectively may require modification.

AM had been subject to a control order under the Prevention of Terrorism Act 2005 from June 2007 until its revocation in January 2012. The Secretary of State then served a TPIM notice under the Terrorism Prevention and Investigation Measures Act 2011, relying on terrorism-related activity occurring before the control order was imposed.

AM sought review of the TPIM notice under section 9 of the 2011 Act and appealed against the final renewal of his control order under section 10(1) of the 2005 Act. The central issues were whether earlier activity could satisfy the statutory conditions, whether the continuing risk justified preventative measures despite the passage of time, and whether particular measures were necessary and proportionate.

1. TPIM notice upheld in substance; one measure modified. The Secretary of State was entitled to rely on terrorism-related activity which had also founded the earlier control order. Section 3(6)(a) of the Terrorism Prevention and Investigation Measures Act 2011 expressly includes activity occurring before the Act came into force where no TPIM notice had previously been in force. Paragraph 4 of Schedule 8 confirms that the Secretary of State’s powers are not affected by a previous control order.
2. Those provisions do not make the earlier control order irrelevant. Its existence and duration are factors bearing on whether measures remain necessary under condition C. On the evidence, the Secretary of State reasonably believed that AM had been involved in terrorism-related activity and reasonably considered that preventative measures remained necessary.
3. Parliamentary statements could not be used to restrict the scope of clear statutory powers. The reasoning in R v Environment Secretary ex parte Spath Holme Ltd was binding and applied to the attempt to use ministerial statements to identify a statutory limitation. The statutory purpose had to be derived from the enacted provisions.
4. The serious nature of AM’s intended conduct, his continuing commitment after the arrest of other plotters, and the absence of convincing evidence of renunciation justified caution about more recent positive indicators. The measures were not disproportionate merely because they affected his social life and personal development.
5. Applying the heightened scrutiny required on judicial review, and the approach in Secretary of State for the Home Department v MB, the individual measures had to be necessary and proportionate. The requirement for two days’ prior notification before first meetings or visits was flawed because it had a significant inhibiting effect and risked social isolation or ineffectiveness. It was to be replaced by post-event notification.
6. The remaining challenged measures, including the requirement that visitors disable electronic devices and the GPS-tag requirement, were necessary and proportionate. The appeal against renewal of the control order was dismissed.

Earlier proceedings included a control-order review before Wilkie J, whose judgment upheld the order with modifications, and an appeal dismissed by the Court of Appeal on 21 June 2011. A later modification appeal was dismissed by Silber J on 3 October 2011. In the present proceedings, the Administrative Court reviewed the TPIM notice and dismissed the appeal against renewal of the control order, while directing modification of measure 7.2.