Secretary of State for the Home Department v BM

For a terrorism prevention and investigation measure, the absence of recent terrorism-related activity does not prevent the statutory conditions being met where no earlier TPIM has existed. It is, however, relevant to whether the measure is necessary. The court must assess all the material together and need not establish each underlying act to the balance of probabilities. Fairness requires sufficient disclosure of the allegations to enable meaningful instructions, although the underlying evidence and sources may remain closed. A subject’s failure to explain matters reasonably capable of explanation may be considered, without shifting the burden of proof. The court reviews the Secretary of State’s decision intensely but does not substitute its own decision. An overnight residence requirement may lawfully extend from 9 pm to 7 am.

BM was subject to a control order made under the Prevention of Terrorism Act 2005. After that Act was repealed, the order continued temporarily under Schedule 8 to the Terrorism Prevention and Investigation Measures Act 2011, and a TPIM was imposed on 13 January 2012.

The Secretary of State sought confirmation of the control order and TPIM. BM challenged the statutory conditions, the disclosure provided for a fair hearing, the evidential approach, and the duration of the overnight curfew. The central issues were whether the TPIM conditions were met and whether its measures were necessary and lawful.

1. Statutory conditions. The TPIM was upheld. Because BM had never previously been subject to a TPIM, “new terrorism-related activity” under section 3(6)(a) could include activity occurring before the 2011 Act. Recent activity was relevant to necessity under Condition C, but was not a precondition to the exercise of the power in this case. The two-year limit in section 5 concerned extension of an existing TPIM and did not prevent a fresh notice where the statutory requirements were otherwise met.
2. Fair hearing. The approach in Secretary of State for the Home Department v AF (No 3) [2010] 1 AC 269 applied equally to TPIMs. The open allegations had to be sufficiently specific to enable BM to give meaningful instructions. Disclosure of the underlying evidence or its sources was not necessarily required. The court had to balance national security against fairness on the facts of the individual case. The need for disclosure was not removed merely because the closed evidence appeared unanswerable.
3. Evidence and review. The court reviewed the Secretary of State’s decision intensively but did not substitute its own decision. Evidence assembled from several sources could be assessed through a Security Service officer using an aide-memoire. The absence of first-hand evidence affected weight, not admissibility. Specific acts of terrorism-related activity did not generally have to be proved to the balance of probabilities; the question was whether the material taken as a whole reasonably supported the required belief.
4. BM’s response. BM’s choice not to give oral evidence could not strengthen the Secretary of State’s case. Nevertheless, the court could attach less weight to untested statements and could take account of his failure to provide explanations that were reasonably open to him in response to disclosed allegations.
5. Curfew. “Overnight” in Schedule 1 paragraph 1 permitted a requirement from 9 pm to 7 am. Those hours were within the ordinary meaning of the statutory expression and were reasonable in the circumstances. The TPIM and the validity of the control order were upheld.

• High Court (Administrative Court): The court reviewed the control order and TPIM and upheld both.
• Court of Appeal: An earlier control order concerning BM had been quashed on 5 April 2011, without remission for reconsideration. The present proceedings concerned a later control order served on 7 April 2011 and the subsequent TPIM.