Neutral Citation Number:  EWCA Civ 278
Case No: T1/2016/4224
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
 EWHC 1845 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON LORD BURNETT OF MALDON
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON LORD JUSTICE SALES
THE RT HON LORD JUSTICE FLAUX
|– and –|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
Hugh Southey QC and Barnabas Lams (instructed by Arani Solicitors) for the Appellant
Jeremy Johnson QC and Zubair Ahmad (instructed by the Special Advocates Support Office) as Special Advocates
Lisa Giovannetti QC and Steven Gray (instructed by the Government Legal Department) for the Respondent
Hearing date: 31 January 2018
The Lord Burnett of Maldon:
Introduction and factual background
1. This is the judgment of the court.
2. The appellant appeals against the order of Collins J in the Administrative Court dated 21 July 2016 upholding the decision of the Secretary of State to impose a control order on the appellant on 28 December 2006. The control order was made pursuant to the Prevention of Terrorism Act 2005 (“the 2005 Act”), section 3 of which required permission to be obtained from the court before a control order could be put into effect.
3. The order could be made only if, as section 2(1) of the Act provided, the Secretary of State:
“(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual”.
4. Collins J himself had given permission to make the control order in 2006. In the order the Secretary of State confirmed the matters set out in section 2(1) and then stated that the basis for her decision was that: “I believe that you have been involved in the radicalisation of [AK] and that you wish to travel abroad to take part in terrorism-related activities”.
5. Section 3(2)(c) required that directions be given for a hearing in relation to the order “as soon as reasonably practicable after it is made”. Section 3(10) required the court in such a hearing to determine whether the making of the order or any obligation contained in it was flawed. That hearing came before Ouseley J in July 2007. On 17 August 2007 he gave judgment upholding the lawfulness of the control order.
6. The control order was renewed on 7 December 2007. Its renewal was never challenged. In the meantime, on 6 July 2007, the appellant had been arrested for offences of aggravated burglary, criminal damage and robbery and remanded in custody. On 20 February 2008, the appellant was sentenced to 4 years’ imprisonment in respect of those offences, at which point the control order was revoked.
7. Notice of appeal against the August order of Ouseley J had been served on behalf of the appellant on 12 December 2007 on the basis that the hearing had breached his rights under Article 6 of the ECHR. That appeal (together with appeals in other control order cases) was stayed pending the decision of the House of Lords in Secretary of State for the Home Department v AF (No. 3)  2 AC 269. In that case, it was decided that the extent of disclosure which had to be given to a controlee in order to comply with Article 6 of the European Convention on Human Rights was greater than previously considered. On 11 May 2010, Maurice Kay LJ then granted permission to appeal against the order of Ouseley J. On 8 July 2010, the appeal was allowed by consent, given the deficiency in disclosure, without consideration of the merits and the case was remitted to the Administrative Court to re-determine the issue.
8. The Prevention of Terrorism Act 2005 was repealed by the Terrorism Prevention and Investigation Measures (“TPIM”) Act 2011 on 15 December 2011, although Schedule 8 to the later Act provides in paragraph 3(1) that the repeal does not prevent or otherwise affect the holding of any hearing in relation to the imposition of a control order. However, paragraph 3(2) limits the power of the court to determining whether the control order or any renewal of it or any obligation imposed by it should be quashed. As Collins J pointed out at  of his judgment, it is obvious that the power to direct revocation cannot be available where no order continues to exist.
9. In the event, the hearing to re-determine the issue whether the original control order should be quashed did not take place until 17-19 May 2016, many years after the control order was revoked on 20 February 2008 and the 2005 Act was repealed in December 2011. It is important to note, as we have mentioned, that there was never an appeal by the appellant against the renewal of the control order on 7 December 2007, no doubt because it had ceased to affect him, since by then he was on remand in custody. It follows that all that was before Collins J was the issue whether the original control order made on 28 December 2006 should be quashed.
The open judgment of Collins J
10. Collins J began by considering at , what the correct approach of the court should be to re-consideration of that issue and the previous judgment of the court. He referred to and followed his own judgment in GG v Secretary of State for the Home Department  EWHC 1130 (Admin) (another control order case remitted for re-consideration in the light of AF (No. 3)). He stated that since the appellant had not had knowledge of all the relevant material, the guidelines set out in Devaseelan v Secretary of State for the Home Department  Imm AR 241, which suggested that findings should be preserved, did not apply. He said what he must do is reconsider the findings of Ouseley J in the light of any further evidence resulting from the additional disclosure now made in compliance with the law as set out in AF (No. 3). He referred to the fact that the appellant, who had not given evidence before Ouseley J, had now served three additional statements and had given oral evidence at the hearing before Collins J. He added that, as had been accepted by counsel for the Secretary of State, he should not vary any findings made by Ouseley J which were favourable to the appellant.
11. The judge noted that section 3(11) of the 2005 Act required the court to apply the principles applicable on an application for judicial review in determining whether a decision was flawed. Since Convention rights were involved, it was necessary for the court to have regard to facts as they were at the time the court made its order. He cited the decision of the Court of Appeal in Secretary of State for the Home Department v MB  EWCA Civ 1140;  QB 415 on how this principle should be approached in control order cases, referring to the statement of Lord Phillips CJ giving the judgment of the Court at  that:
“Section 3(10) of the [2005 Act] cannot be read so as to restrict the court, when addressing a human rights issue, to a consideration of whether, when he made his initial decision, the Secretary of State had reasonable grounds for doing so”.
12. The judge then cited the further discussion of this issue at  and following of the judgment, culminating in :
“46. For these reasons we consider that section 3(10) can and should be ‘read down’ so as to require the court to consider whether the decisions of the Secretary of State in relation to the control order are flawed as at the time of the court’s determination.”
13. The judge clearly had in mind that, unlike the Court of Appeal in MB, he was concerned with whether a control order made nearly 10 years earlier should be quashed. Thus at  and  of his judgment, he said:
“6. Paragraph 46 must be read in context. The court must consider evidence which may or may not have been available to or considered by the applicant when it was decided to impose the control order if that evidence shows that material relied on to raise the necessary reasonable suspicion could not have justified that suspicion. Parliament had assumed that s.3(10) hearings would take place as soon as possible after the control order was imposed. So much is clear from the requirement in s.3(2)(c) of the 2005 Act that directions for a s.3(10) hearing ‘as soon as reasonably practicable after it is made’ must be given. The applicant must keep under review the need for a control order and so in paragraph 44 of MB Lord Phillips requires that the court must be enabled to consider whether the continuing decision to keep the order in force is flawed. If the system is working as it should and the relevant hearing takes place while the order is still in being, that can lead to revocation.
7. This does not and cannot mean that the original decision to impose a control order is flawed simply because at the time the court hears the s.3(10) application the order is shown to be unnecessary. The respondent in this case was released from custody in 2011 having served his sentence for the criminal offences he had committed. It has not been suggested that since then he is suspected of involvement in any terrorism related activity. But it would be absurd if, as one reading of paragraph 46 of MB might indicate, that meant that I had to quash the order. With the greatest of respect to Lord Phillips and the court, I think paragraph 46 is not entirely happily phrased. What in my view in context it must mean is that the court will consider all relevant evidence whether or not available to or known by the applicant. If that evidence shows that the making of the order was flawed because, for example, of reliance on material which is shown to have been unjustified, the court will quash the order. If the evidence shows that at the time the hearing takes place, the order is no longer justified, it should be revoked. In my view, such revocation could have been directed to be back dated, thus preserving for a controlee any rights he might have and, in particular, removing any possibility of prosecution for a breach of the order when it ought no longer to have been in force.”
14. The judge went on to consider the facts. So far as relevant to the grounds of appeal, his findings can be summarised as follows. He dealt first with the basis for the decision to make the control order that the Secretary of State believed that the appellant had been involved in the radicalisation of AK. He noted that by the time of the hearing before Ouseley J that involvement had been reduced to an assessment that the appellant had not been the main influence on AK but had encouraged him and exercised significant control over him such as to distance him from his family and assist him to go to Pakistan to engage in terrorism related activities. AK was made the subject of a control order at the same time as the appellant but when it was served on him on 3 January 2007, he left the country and probably went to Pakistan to engage in terrorism related activities.
15. At  the judge referred to the allegations made by AK’s mother against the appellant in interviews with the police and the appellant’s response to them, including that in his statement which was before Ouseley J he had denied ever discussing extremist views with AK or sharing such views, let alone trying to radicalise him. At  he noted that in his three statements made in the proceedings before Collins J the appellant had repeated the denial made in his statements before Ouseley J that he had ever supported extremist Islamist ideologies.
16. He went on at  and following to consider the appellant’s relationship with Awan and Rahman, two men who were assessed by the security services to have been sent to recruit and radicalise British Muslims. The judge found they were extremists who had radicalised AK. Rahman had assisted AK to leave the country for terrorism related purposes and was convicted and sentenced to 6 years imprisonment. The judge said it would be surprising if Awan and Rahman had not at least sounded the appellant out to see if he had the necessary extremist views. He referred to the appellant’s evidence that he was not aware that Awan, Rahman or AK held extremist views and had never discussed the issue. The judge said at :
“I find that incredible in all the circumstances and it obviously taints AL’s evidence. I am afraid I do not accept that Rahman and Awan might not have discussed the issue since they would want to be sure that they could trust AL, particularly having regard to his lifestyle.”
17. The judge said at : “That AL was a target of that recruiting drive was supported by a letter [in Urdu] found at Rahman’s address when it was searched by the police”. The judge then dealt in detail with the contents of the letter and the appellant’s denial that he was the person named. The judge concluded that the Secretary of State was entitled to regard the letter as confirmatory of the case that there was reasonable suspicion that the appellant was a willing participant in terrorism related activity.
18. At  he discounted the appellant’s possession of a propaganda video and a holiday video taken in Pakistan with footage of the appellant and others with a shotgun, saying there was nothing sinister in this, as possession of arms for security reasons in Pakistan was not uncommon. At  he dealt with the animosity between the appellant and AK’s parents and then said:
“While I do not doubt that AL was at the very least sympathetic to AK’s intention to travel for terrorism related activities, I am prepared to accept that the full picture now painted does not support the view that he was involved in radicalisation of AK. To that extent I can apply the somewhat artificial approach following MB.
23. I am however, as was Ouseley J, satisfied that AL was not only aware of AK’s extremist views but also of his intention to travel to Pakistan in furtherance of those views. His evidence that he had never been aware of AK’s views nor discussed them I have already rejected. I have no doubt that the applicant was entitled reasonably to suspect that AL had actively encouraged AK in his intention to travel for terrorism related purposes.”
19. At  he reiterated that if the appellant was the person referred to in the letter in Urdu, it was supportive of the assessment that the appellant himself was intending to travel to Pakistan. He referred to the submission by Mr Southey QC that mere intention is not sufficient to justify a belief that a person will engage in terrorism related activity, saying:
“While that may be so if nothing more than intent is shown, the material available both in open and closed satisfies me that AL was with AK taking steps to further that intent. Certainly the applicant properly had reasonable suspicion that that was the case and the encouragement of AK could also be terrorism related activity. None of the further disclosure and the respondent’s answers to it and evidence given puts in doubt Ouseley J’s decision accepting that the control order was properly imposed at least on the grounds I have specified.”
20. The judge then referred to the fact that revocation of the control order had been in issue before Ouseley J because of the appellant’s arrest but Ouseley J thought the possibility of bail meant the order should continue. Collins J said that he doubted that bail was on any view a reasonable prospect and said that for reasons he had dealt with more fully in his closed judgment, he was satisfied that revocation should have been directed at that time which meant that the order should not have been renewed in December 2007. Nonetheless, the judge said:
“But this does not affect the lawfulness of the original imposition of the order and, since there was no appeal against the renewal of the order, I cannot quash that renewal. In any event it makes little difference since the obligations under the order were obviously not in force while AL was in custody.”
21. Having said that he would deal with certain issues more fully in closed, the judge concluded at  and :
“Suffice to say that the issues raised by AL do not show that the imposition of the order was unlawful. But I do think that, as AL says, the imposition of the order had a profound effect on him. It did not inhibit him from committing serious crimes, but it may well have turned him away from engaging in any terrorism related activity. For reasons fully set out in my closed judgment, I am satisfied that the order should have been revoked and if there had been an appeal against its renewal, I would have quashed that renewal. But, since AL was in prison for his criminal activities, the continued existence of the control order had no effect on him.
27. What I have to decide is whether the applicant’s view that there was reasonable suspicion that AL was or had been and would unless subject to control continue to engage in terrorism related activities was flawed. I emphasise that by upholding that view I am not finding that AL was necessarily guilty of any such activity. But for the reasons I have given, which to a considerable extent follow those given by Ouseley J, I am satisfied that the order should not be quashed.”
The grounds of appeal
22. The amended grounds of appeal in relation to which permission was given are as follows:
(1) That the judge had failed to determine directly whether (in the light of what is now known) the control order was justified when made, but merely assessed at  that the Secretary of State was entitled reasonably to suspect that the appellant encouraged AK to travel for terrorist purposes. It was also submitted that the judge’s approach was flawed because he appeared to conclude that it was unnecessary to quash the control order if it was found to lack justification.
(2) The judge’s approach of directing himself at  that what he must do is reconsider the findings of Ouseley J in the light of further evidence was flawed given that it was clear that the hearing before Ouseley J was itself flawed because of a failure to ensure adequate disclosure, so that in consequence, any findings could not be relied upon.
The parties’ submissions
23. In their written Skeleton Argument, Mr Southey QC and Mr Lams submitted that the judge had failed correctly to adopt the approach to the exercise in which the court was engaged as set out in this Court in MB. Instead, as in his earlier judgment in GG, the judge had simply conducted a review of the decision of the Secretary of State to determine if it was Wednesbury unreasonable. In his oral submissions, Mr Southey QC submitted that the judge had approached the matter on the basis that the Secretary of State was reasonably entitled to conclude there were reasonable grounds for suspicion that the appellant had been involved in terrorism-related activity, whereas he should have approached the matter on the basis that he had to decide for himself whether there were reasonable grounds for such suspicion.
24. In his oral submissions, Mr Southey QC developed a long and complex argument to the effect that in a section 3(10) hearing, the Court has to consider whether the control order was justified throughout the period that it was in force and, if the court concluded that at some particular point the control order had become unjustified, because for example the court accepted the controlee’s evidence that he was not interested in terrorism, the court should quash the order ab initio. Revocation was not sufficient (even if the court had had power to revoke, which it does not as a consequence of paragraph 3 of Schedule 8 to the TPIM Act as the judge held) since a controlee who had breached the control order could still be prosecuted even though after a particular date it could not be justified. Mr Southey QC submitted that that cannot have been what Parliament intended. Here the judge had said at  that revocation should have been directed once the appellant was in custody and, accordingly, he should have quashed the order from the outset.
25. The fundamental problem with this “half-way” quashing argument is that, as Mr Southey QC had to accept, he had never raised the argument before the judge either in written or oral submissions. It follows that, quite apart from the fact that his point about the controlee having been convicted of breaching the order was entirely hypothetical and not based on the facts of this case (or for that matter any other control order case), there cannot be any conceivable basis for criticising the judge for not having quashed the order on that basis, since he had not been asked to do so. Further, this point did not feature in the grounds of appeal or in Mr Southey QC’s skeleton argument for the appeal. Mr Southey QC does not have permission to raise this point, which is not open to him. In the circumstances, we say no more about it.
26. In relation to the second ground of appeal Mr Southey QC submitted that, in his judgment in this case and in GG at - and , the judge was clearly proceeding on the basis of looking at the previous findings of Ouseley J and seeing if there was a basis for re-opening them. That was the wrong approach. The judge should have made findings de novo given that, in the light of the decision of the House of Lords in AF (No. 3) that there was a basic right to a minimum level of disclosure, the decision of Ouseley J had been quashed.
27. Mr Southey QC relied upon the decision of the Divisional Court in R (BB(Algeria)) v Special Immigration Appeals Commission  EWHC 336 (Admin);  QB 146. There the court held that in bail proceedings where the minimum level of disclosure set out in AF (No. 3) was required, SIAC had been wrong to rely upon findings made in an earlier closed judgment dealing with the issue of national security because that minimum level of disclosure had not been given in the earlier proceedings. Mr Southey QC relied upon the judgment of Richards LJ at -.
28. On behalf of the Secretary of State, Miss Giovannetti QC submitted that at  and  of his judgment, Collins J had directed himself impeccably as to the correct approach: (i) that the question under section 3(10) of the 2005 Act and Schedule 8 paragraph 3 of the TPIM Act was whether the original control order should be quashed because the making of it was flawed; and (ii) that he should not take the judgment of Ouseley J as his starting point (the approach in Devaseelan which he expressly rejected) but should reconsider the findings of fact on the basis of all the evidence now available. It was also clear from  and  of the judgment that the judge had adopted the correct approach of considering all the evidence himself and not simply reviewing the decision of the Secretary of State.
29. She submitted that when one then analysed the judgment, there were repeated examples of Collins J making findings of fact for himself on the basis of the evidence available in 2016. He was not simply reviewing the decision of the Secretary of State nor was he just setting out what Ouseley J had found and then saying that nothing compelled him to reach a different conclusion. She submitted both grounds of appeal were without merit.
Analysis and conclusions
30. In relation to the first ground of appeal, in our judgment, the judge correctly set out both the question he had to decide under section 3(10) (whether the making of the control order on 28 December 2006 was flawed) and the approach he should adopt in answering that question. That was to look at all the evidence now available (even if it had not been available to the Secretary of State at the time) and then to decide for himself whether, at that time, there had been reasonable grounds for suspecting that the appellant was or had been involved in terrorism-related activity. The focus in this case has been on whether such grounds for suspicion existed. It should not be forgotten that the making of a control order required consideration of two distinct steps. First, whether the necessary grounds for suspicion existed; and secondly whether the making of a control order was necessary for the purposes set out in section 2(1)(b).
31. Like the judge, we consider that some gloss has to be placed on  of the judgment of the Court of Appeal in MB. That case was decided in August 2006 when the 2005 Act was still in force and control orders were still being made. As the judge said, it would be absurd if  of MB required the court in 2016 or 2018 to quash the original order merely because, by the time of the present hearings, the order has become unnecessary. All that is required by MB is that, in considering whether the making of the control order in December 2006 was flawed, the court must look at all the evidence now available, even if it was not available to the Secretary of State at the time.
32. The suggestion by Mr Southey QC that the judge both in this case and in GG adopted the wrong approach by merely considering whether the decision of the Secretary of State was Wednesbury unreasonable is misconceived. It is quite clear from what the judge said as to the correct approach at  and  of his judgment (which we cited at  above) that he recognised that his task was to make his own assessment as to whether all the evidence now available showed that there had been reasonable grounds for suspecting that the appellant was or had been involved in terrorism-related activity.
33. The judge then carried out that task at  to  of his judgment. There are numerous examples of him making findings of fact for himself which we have summarised at  to  above. He was not simply reviewing the Secretary of State’s decision and determining whether the Secretary of State had reasonable grounds of suspicion at the time, nor was he deferring to the Secretary of State as Mr Southey QC suggested. Had that been the judge’s approach then, in a very real sense, the evidence which has become available since the decision in December 2006 would have been irrelevant. Yet the judge clearly considered all the evidence, including that which has become available since the control order was made and since the decision of Ouseley J (for example the three additional witness statements of the appellant and his oral evidence before Collins J) in reaching his findings of fact.
34. Those findings culminate in the finding at  that the full picture now painted does not support the view that the appellant was involved in the radicalisation of AK, but (at ) that the appellant was aware of AK’s extremist views and of his intention to travel to Pakistan in furtherance of those views. The judge then found at  that he was satisfied that the appellant was, with AK, taking steps to further an intention to travel abroad to Pakistan to engage in terrorism-related activities. Those positive findings of fact at  and  actually went beyond what was required to satisfy the statutory test in section 2 of the 2005 Act. Having made the findings of fact he did, the judge then addressed that statutory test at  by reference to his findings of fact.
35. In our judgment, there is nothing in the first ground of appeal.
36. So far as the second ground of appeal is concerned, in  of his judgment in GG, to which he referred at  of his judgment in the present case, the judge said that in deciding what the approach should be to the previous judgments given without the minimum level of disclosure required by AF (No. 3) some guidance was to be found in the judgment of the Court of Appeal in Secretary of State for the Home Department v AF (No. 2)  EWCA Civ 117;  1 WLR 2528:
Submissions have been directed to how I should approach my previous judgment and in particular what weight should be attached to my findings. Some guidance in the context of control orders has been given by the Court of Appeal in SSHD v. AF (No 2)  1 WLR 2528. In that case a judge had conducted a full hearing and had decided that the control order and the obligations in it were necessary and that there had been no breach of Article 6, but had quashed the order because it breached Article 5. Following an appeal, the case was submitted to the Administrative Court to determine whether there had been a breach of Article 6 and whether the order was flawed. The judge dealing with it took the view that the previous findings were in principle binding. The Court of Appeal disagreed. In paragraph 30, Sir Anthony Clarke MR, who gave the only reasoned judgment, stated:-
“I would hold…..that the court is entitled to have regard to findings made in the earlier section 3(10) hearing but will itself (i) have to be satisfied that the facts relied on by the SSHD amount to reasonable grounds for suspecting that the controlee is or has been involved in terrorism-related activity; and (ii) have to give intense scrutiny to the necessity of each of the obligations imposed.”
Sir Anthony went on to consider the guidelines set out in the tribunal decision Devaseelan v. SSHD  Imm AR 241. That case concerned the approach which should be adopted to the judge’s findings where a human rights claim was made following the previous rejection of an asylum claim. It was said that the previous decision must be the starting point. But that approach was in cases where the appellant had always had full knowledge of all relevant facts. Where, as here, that is not the case, it is clear that the findings in the previous case must be reconsidered in the light of any further evidence resulting from disclosure which was needed to establish that there was compliance with Article 6.”
37. In  of his judgment in the present case, the judge reiterated that the principles in Devaseelan of taking the previous findings as the starting point did not apply. In our judgment, the judge correctly directed himself that he had to re-consider the findings of fact in the light of the evidence now available.
38. He clearly then embarked on that task and made his own findings of fact. It is correct that, at various places, he referred to the findings of Ouseley J, but contrary to Mr Southey QC’s submissions, he was not simply adopting those findings or using them as a starting point. For example, when he said at  that: “I am however, as was Ouseley J, satisfied…” he was not simply confirming Ouseley J’s findings, but making his own findings and then noting that his findings were the same as Ouseley J’s on the particular point.
39. It is quite clear that the findings Collins J made were his own findings based on a careful analysis of all the evidence available before him (a fair amount of which had not been available to Ouseley J in 2007). There is nothing in the second ground of appeal.
40. The other grounds of appeal raised by the special advocates are considered in our separate closed judgment. They are all dismissed.
41. This appeal must be dismissed.