AL v Secretary of State for the Home Department

At a delayed statutory hearing, the court must decide for itself whether the making of a control order was flawed. It must consider all evidence now available, including material unavailable when the order was made, and determine whether reasonable grounds for suspicion existed at that time. The approach in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140 does not require the original order to be quashed merely because it later became unnecessary. The statutory inquiry has two distinct stages: reasonable suspicion of terrorism-related activity and necessity for public protection. Earlier findings made without the disclosure required by Article 6 must be reconsidered rather than treated as binding. The appeal was therefore dismissed.

AL appealed against the order of Collins J dated 21 July 2016, which upheld the original control order imposed by the Secretary of State on 28 December 2006 under the Prevention of Terrorism Act 2005: [2016] EWHC 1845 (Admin).

Ouseley J had upheld the order in August 2007. An appeal was later allowed by consent because the disclosure had been inadequate in light of Secretary of State for the Home Department v AF (No. 3) [2010] 2 AC 269, and the matter was remitted. The order was revoked in February 2008 and the 2005 Act was repealed in 2011. Collins J reconsidered the matter in 2016 and upheld the original imposition, although he considered that revocation should have occurred later. The appeal challenged the approach to newly disclosed evidence and the reliance placed on findings made in the earlier proceedings.

The appeal was dismissed. The court held that the issue under section 3(10) of the Prevention of Terrorism Act 2005 was whether the making of the original control order was flawed.

1. The reviewing court had to make its own assessment. It had to consider all evidence available by the time of the hearing, including evidence unavailable to the Secretary of State or the earlier court, and decide whether, when the order was made, there were reasonable grounds for suspecting involvement in terrorism-related activity. The court was not confined to reviewing whether the Secretary of State had acted irrationally or had reasonable grounds at the time.
2. Section 2(1) involved two distinct questions: whether the necessary grounds for suspicion existed, and whether a control order was necessary to protect the public from terrorism. The judge’s findings that AL knew of AK’s extremist views and intended travel, and was taking steps with him to further that intention, went beyond what was required to satisfy the suspicion threshold. The exercise concerned reasonable suspicion and did not amount to a finding of guilt.
3. The approach in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140 required some qualification. Considering all currently available evidence did not mean that the original order had to be quashed merely because it had later become unnecessary. Later lack of necessity concerned revocation, where that remedy remained available, and did not retrospectively invalidate the original imposition.
4. Because the earlier proceedings had lacked the minimum disclosure required for Article 6 compliance, the findings of Ouseley J were not binding starting-point findings. They had to be reconsidered in light of all the evidence. Collins J had made his own findings; his references to Ouseley J did not show that he had simply adopted the earlier decision.
5. An additional argument for retrospective or partial quashing had not been raised below, included in the grounds or skeleton argument, or permitted on appeal. It was therefore not open to the appellant. The other grounds raised by the special advocates were dismissed in the separate closed judgment.

• Court of Appeal (Civil Division) — Appeal dismissed: [2018] EWCA Civ 278.
• High Court, Administrative Court — Collins J upheld the original control order on 21 July 2016: [2016] EWHC 1845 (Admin).
• Administrative Court — Ouseley J upheld the order in August 2007. The appeal was allowed by consent on 8 July 2010 because of inadequate disclosure, following Secretary of State for the Home Department v AF (No. 3) [2010] 2 AC 269, and the matter was remitted.