Mohamed & Anor v Secretary of State for the Home Department

In proceedings restricting an individual’s liberty, procedural fairness does not permit the Secretary of State’s entire response to a potentially dispositive abuse of process allegation, and the court’s reasons for rejecting it, to remain closed. Sufficient information must be disclosed to permit effective instructions. Neither national security nor a policy of neither confirming nor denying allegations automatically displaces that requirement.

A court reviewing a control order retains discretion to withhold a statutory remedy for legal error. However, the duty of full and frank disclosure on a without-notice application applies rigorously. Material non-disclosure may require an expired control order to be quashed, notwithstanding the strength of the national security case.

Two British citizens were arrested and detained in Somaliland and involuntarily returned to the United Kingdom. They were then made subject to control orders and, subsequently, terrorism prevention and investigation measures. They accepted the findings of reasonably suspected terrorism-related activity and the need for protective measures, but alleged that the measures were procured through an abuse of process involving unlawful conduct and United Kingdom collusion.

The Administrative Court upheld the measures in [2012] EWHC 2837 (Admin). Its open judgment did not reveal whether the allegations of collusion and mistreatment had been accepted or rejected; the relevant evidence and reasoning appeared only in a closed judgment. The court had also found that the Secretary of State’s disclosure at the without-notice control-order permission hearings was deficient.

The appeals concerned procedural fairness in determining abuse of process, the statutory remedial discretion, material non-disclosure, proper purpose and the sufficiency of disclosure to CF.

1. The appeals were allowed in part. The Administrative Court’s treatment of the abuse of process applications was procedurally flawed. The abuse issue was remitted for reconsideration. The expired control orders were quashed for material non-disclosure. All other grounds were dismissed.

2. A statutory closed material procedure may restrict disclosure and permit detailed reasoning to remain closed. It does not justify withholding the Secretary of State’s entire case on collusion and mistreatment, or confining all reasons for rejecting a potentially dispositive abuse allegation to a closed judgment. The distinction between allegations against a suspected terrorist and the Secretary of State’s response to an abuse allegation was too fine. Sufficient disclosure was required to allow effective instructions. The public was also entitled to sufficient information to maintain confidence in adherence to the rule of law.

3. A policy of neither confirming nor denying allegations is not a legal principle. It departs from ordinary pleading and disclosure requirements and needs justification. Where legislation does not define the limits of open justice, the court must do so. National security and the seriousness of the uncontested findings did not make total secrecy on the abuse issue compatible with justice and propriety.

4. Once suitable procedural protection and a gist of the Secretary of State’s case were provided, the conventional burden of proving abuse of process did not require modification. The control-order and TPIM powers could properly address terrorism-related activity committed overseas. Their use against British citizens present in the jurisdiction was not for an improper purpose, absent abuse of process.

5. Section 3(12) of the Prevention of Terrorism Act 2005 limited the remedies available after a flawed decision but did not oblige the court to grant one. The statutory language conferred powers rather than duties, preserving the judicial-review discretion to withhold relief. The equivalent TPIM provisions had the same effect.

6. The duty of full, fair and accurate disclosure applied with full rigour to without-notice control-order and TPIM applications. It extended to material capable of supporting an abuse of process argument. The Administrative Court had found the disclosure to the permission judge deficient. Given the interference with liberty, the constitutional importance of judicial permission and the materiality of the omissions, the control orders should have been quashed. The court possessed inherent jurisdiction to enforce the duty of candour.

7. CF had received sufficient information to give effective instructions about the material allegations. The relevant periods, locations, organisations and named associates had been disclosed, and his extensive statements demonstrated his ability to respond. His separate disclosure and particularity grounds were dismissed.

Lord Justice Sullivan and Lord Justice Briggs agreed with Lord Justice Maurice Kay.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 559, allowed both appeals on procedural fairness in the treatment of abuse of process and on material non-disclosure. It quashed the control orders, remitted the abuse issue and dismissed the remaining grounds.

2. High Court, Administrative Court: By [2012] EWHC 2837 (Admin), upheld the control orders and TPIMs following statutory review. It gave open and closed judgments and refused to quash the control orders despite deficient disclosure at the permission stage.