Secretary of State for the Home Department v AY

A person previously subject to a Control Order may be made subject to a first TPIM notice based on terrorism-related activity occurring before the TPIMA came into force. The two-year limit in section 5 applies to TPIM notices and does not aggregate time spent under a Control Order. Schedule 8 paragraph 4 confirms that previous Control Orders do not restrict the Secretary of State’s TPIM powers.

The court must independently assess whether the statutory conditions are met. Earlier findings under the lower Control Order threshold are not automatic building blocks, although they may be checked against the present evidence. An acquittal does not prevent a TPIM where the statutory reasonable-belief test is satisfied.

AY appealed under section 10(1) of the Prevention of Terrorism Act 2005 against renewals of his Control Order. Following the repeal of that Act, the proceedings were preserved under Schedule 8 to the Terrorism Prevention and Investigation Measures Act 2011. The court also reviewed a TPIM notice imposed after the Control Order was revoked.

AY had been acquitted at a criminal trial concerning an alleged terrorist plot. He argued that the TPIM was unlawful because he had already spent more than two years subject to restrictive measures and had not engaged in recent terrorism-related activity. The central issues were whether Conditions A and C in section 3 of the TPIMA were satisfied, what weight should be given to the earlier Control Order judgment, and whether parliamentary statements could restrict the statutory powers.

1. The court held that all relevant conditions in section 3 of the Terrorism Prevention and Investigation Measures Act 2011 were satisfied. The TPIM notice was upheld, subject to later consideration of the reporting measures and exclusion zone. The appeal against renewal of the Control Order was dismissed.

2. Condition A required the Secretary of State reasonably to believe that AY was or had been involved in terrorism-related activity. This was an assessment of the evidence, not a requirement that the court itself establish the underlying facts on the criminal standard. The difference between reasonable suspicion and reasonable belief was material. AY’s acquittal did not determine the TPIM issue because the criminal trial and the TPIM process applied different tests and served different purposes.

3. The earlier judgment upholding the Control Order was not an automatic building block. It applied a lower statutory threshold and had been delivered nearly two years earlier. The court had to make its own assessment, while checking its conclusions against the earlier findings.

4. The TPIMA did not require recent terrorism-related activity where no TPIM notice had previously been in force. Section 3(6)(a) treated terrorism-related activity occurring at any time as new terrorism-related activity in that situation. Section 5 imposed a two-year limit on TPIM notices, not on the combined period of Control Orders and TPIMs. Schedule 8 paragraph 4 expressly provided that previous Control Orders did not affect the Secretary of State’s TPIM powers.

5. The court rejected the submission that parliamentary statements or the general policy of temporary restrictions could qualify the clear statutory language. The conditions for using parliamentary materials identified in Pepper v Hart were not met. The reasoning in R v Secretary of State for the Environment ex parte Spath Holme Ltd reinforced that ministerial statements could not define the scope of a clear statutory power.

6. Condition C was satisfied. The seriousness and nature of the alleged plot, AY’s assessed senior involvement, his continuing links and lack of evidence of a change of heart were relevant to necessity. The passage of time in custody and under Control Orders was considered but did not make the TPIM unnecessary.

The judgment itself does not state a prior appellate decision in the same proceedings. It describes earlier High Court proceedings concerning AY’s Control Order, including the 2010 judgment, and reviews the subsequent TPIM notice.