Secretary of State for the Home Department v CC and CF

In reviewing control orders and terrorism prevention and investigation measures, the court must assess both the statutory conditions and the continuing necessity and proportionality of each measure. The reasonable belief test does not require the underlying facts to be proved on the balance of probabilities. The court may assess a matrix of evidence, including material which supports suspicion or belief without conclusively establishing the underlying conduct.

Abuse of process requires a very high threshold. The court must evaluate the whole course of conduct and balance the public interest in protecting the integrity of the legal system against the public interest in protecting the public from terrorism. A causal link between alleged executive wrongdoing and the proceedings is relevant but not conclusive.

The Secretary of State applied for statutory reviews of control orders and terrorism prevention and investigation measures imposed on CC and CF. CC also appealed against the refusal to vary three measures in his TPIM notice. Both respondents challenged the orders on statutory, public law, abuse of process and non-disclosure grounds, relying in part on their arrest, detention and removal from Somaliland.

The court considered whether the statutory conditions were met, whether the measures remained necessary and proportionate, whether the proceedings constituted an abuse of process, whether relevant considerations had been disregarded, and whether material non-disclosure on the applications for permission required the orders to be quashed.

1. Disposition. The statutory challenges and CC’s appeal were dismissed. The control orders and TPIM notices were not quashed.
2. Under the Prevention of Terrorism Act 2005 and the Terrorism Prevention and Investigation Measures Act 2011, the court reviewed the Secretary of State’s decisions both when the orders were made and at the hearing. The court independently assessed whether the relevant facts afforded reasonable grounds for suspicion or reasonable belief, and reviewed necessity and proportionality.
3. The higher language of reasonable belief under the TPIM Act did not impose a balance-of-probabilities requirement for every underlying fact. The relevant question remained whether the material, considered in the round, reasonably supported the belief. A failure to give evidence could be taken into account where the subject had a fair opportunity to answer disclosed allegations, although it did not shift the burden of proof.
4. The necessity assessment required vigilance and, for particularly onerous measures, intense scrutiny of each obligation and possible alternatives. Appropriate deference was owed to the Secretary of State’s national-security expertise, but the court had to ensure that the measures were necessary and proportionate.
5. The second category of abuse of process concerns the integrity of the justice system rather than the fairness of the ensuing proceedings. It involves a very high threshold and a balancing exercise. Deliberate illegality is especially serious, but rigid requirements of actual knowledge, a particular ulterior purpose or a strict causal test were impermissible. The respondents had not established abuse.
6. The court could take cognisance of Somaliland’s laws and official acts. Somaliland was not recognised as a sovereign state, but its administration exercised effective control and performed governmental functions. Dealings by the United Kingdom with that administration did not themselves make the proceedings abusive.
7. The Secretary of State had failed to disclose material capable of supporting an abuse-of-process argument on the applications for permission to make the control orders. That failure was deficient, but it was not deliberate, the applications were not themselves abusive, and the strength of the national-security case meant that quashing the orders was not an appropriate remedy.

This was a first-instance decision of the Administrative Court determining statutory reviews, a statutory appeal and associated public law and abuse-of-process challenges.