The Secretary of State for the Home Department v EB

Judicial review of a terrorism prevention and investigation measures decision applies judicial review principles. The court is not the primary fact-finder and may intervene where the Secretary of State’s assessment is irrational, materially affected by irrelevant or omitted matters, or founded on an established potentially determinative mistake of fact. Necessity of individual measures requires a proportionality assessment, while recognising the Secretary of State’s superior institutional position in assessing public protection. A measure may remain necessary even where it substantially burdens private and family life, if its security rationale is sound and the decision falls within the range of reasonable decisions.

The Secretary of State imposed a TPIM notice on EB, a British citizen convicted of possessing a document containing bomb-making instructions. The notice included relocation, association, exclusion-zone, reporting, curfew and internet-related measures. EB appealed against the refusal to vary three measures and challenged the continuing necessity of four others. The court conducted the statutory review and appeal together under Terrorism Prevention and Investigation Measures Act 2011. The central issues were whether conditions A, C and D remained satisfied, whether the Secretary of State had made a material mistake of fact, and whether the disputed measures remained necessary and proportionate.

1. Statutory review. The court reviewed the Secretary of State’s decisions under judicial review principles pursuant to section 16(6) of the Terrorism Prevention and Investigation Measures Act 2011. It was not the primary fact-finder. Intervention was justified only if the Secretary of State had not decided the relevant facts on the balance of probabilities, acted irrationally, relied on irrelevant matters, omitted relevant matters, or relied on an established potentially determinative mistake of fact: E v Secretary of State for the Home Department [2004] QB 1044.
2. The court nevertheless examined the evidence in the open, in-camera and closed judgments and found, on the balance of probabilities, that EB had travelled to Syria, associated with Islamist extremists and engaged in terrorism-related activity within section 4. The Secretary of State’s decision was securely founded on the evidence. Conditions A and C were satisfied, and condition B followed from condition A. The Secretary of State was entitled to conclude that TPIMs remained necessary despite EB’s compliance with them and the existence of prison licence conditions.
3. Necessity and proportionality. The necessity of individual measures required a proportionality assessment. The Secretary of State was better placed than the court to decide what measures were required to protect the public, and the reasoning in MB v Secretary of State for the Home Department [2006] EWCA Civ 1140 applied with equal force to TPIMs. Relocation was justified because it reduced the risk of absconding, departure from the United Kingdom and contact with extremists in London, notwithstanding its substantial effect on EB’s family life.
4. The exclusion zones, daily reporting requirement, curfew and internet measure could reasonably be maintained. The Secretary of State was expected to consider practical relaxations, including travel through one exclusion zone, attendance at approved training courses and curfew adjustments for family visits. The appeal was rejected, and the court declined to quash or vary any measure or give directions under section 16(6) and (7).