Secretary of State for the Home Department v AL

In a delayed review of a revoked control order, the court must consider all relevant evidence available by the time of determination. Later evidence may show that the original imposition was flawed, but the order is not unlawful merely because it had subsequently become unnecessary. The court must distinguish between quashing an order because its making was flawed and revoking it because its continued operation is no longer justified. A failure to comply with a continuing statutory duty will not justify quashing where it could not have affected the decision. Reasonable suspicion may be established by cumulative evidence of knowledge, encouragement and steps taken towards terrorism-related activity; proof of guilt is unnecessary.

The Secretary of State imposed a control order on AL under the Prevention of Terrorism Act 2005 in December 2006. It was renewed in December 2007 and revoked in February 2008 after AL was imprisoned for unrelated criminal offences. Ouseley J upheld the order in August 2007. Following the decision in SSHD v AF (No 3), the Court of Appeal allowed AL’s appeal by consent and remitted the matter for redetermination because the original hearing had not involved sufficient disclosure.

The issues were whether the original imposition had been flawed, whether statutory review and disclosure obligations had been breached, and whether the order should be quashed or treated as requiring revocation.

1. Approach to the remitted hearing. The court reconsidered Ouseley J’s findings in light of the additional disclosure and evidence, while preserving findings favourable to AL. The approach in SSHD v GG was applied. The guidelines in Devaseelan v SSHD did not apply because AL had not previously known all relevant material.
2. Meaning of the review jurisdiction. Under SSHD v MB, the court may consider evidence not available to the Secretary of State when the order was imposed. That does not mean the original order becomes flawed merely because, by the hearing, it is no longer necessary. Evidence showing that the original suspicion was unjustified may require quashing. Evidence showing only that the order has ceased to be justified supports revocation, potentially with retrospective effect.
3. Statutory duties and remedy. The continuing duties under section 8(4) and (5) of the Prevention of Terrorism Act 2005 rested on the Chief Officer, although the Secretary of State had to pass on relevant information. Following SSHD v E, any breach could not justify quashing where it could not have affected the possibility of prosecution or the decision. There was also a continuing obligation to consider and disclose potentially exculpatory material while the proceedings remained live.
4. Application to AL. The evidence established reasonable grounds to suspect that AL knew of AK’s extremist views, encouraged his intention to travel to Pakistan for terrorism-related purposes, and was taking steps with him towards that objective. The evidence did not establish that the original case of radicalisation was correct in full, but the remaining grounds independently justified the original order. The order should have been revoked after AL’s imprisonment, and its renewal should have been quashed had it been appealed. The court could not quash the unappealed renewal. The original imposition was upheld and the order was not quashed.

1. High Court (Administrative Court): Ouseley J upheld the control order in August 2007.
2. Court of Appeal: The appeal was allowed by consent on 8 July 2010 and the matter was remitted for redetermination following the disclosure requirements identified in SSHD v AF (No 3), [2010] 2 AC 269.
3. High Court (Administrative Court): The original imposition was upheld; the order was not quashed. The court stated that revocation should have occurred and that the renewal would have been quashed had it been appealed.