House of Lords
Published November 13, 2007
Secretary of State for the Home Department v E and Another
Before Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches October 31, 2007

It was not a condition precedent to the making or renewal of a nonderogating control order that the Secretary of State for the Home Department should comply with his duty to keep under review the prospect of successfully prosecuting the controlled person for a terrorism-related activity.

The House of Lords so stated when dismissing an appeal by E and S, his wife, from the Court of Appeal (Lord Justice Pill, Lord Justice Wall and Lord Justice Maurice Kay) ( The Times June 1, 2007; [2007] 3 WLR 1), which, allowing the Home Secretary’s appeal from Mr Justice Beatson ([2007] HRLR 472) concluded that: (i) on its particular facts, the control order made in respect of E did not deprive him of liberty contrary to article 5 of the European Convention on Human Rights, and (ii) the Home Secretary did not materially breach his duty under section 8 of the Prevention of Terrorism Act 2005 in relation to consideration of criminal prosecution so as to vitiate his decision to renew the control order in March 2006.

The House, having regard to its decision in Home Secretary v JJ ( The Times November 5, 2007) affirmed the Court of Appeal’s decision on the first issue.

After making the order the Home Secretary, became aware of judgments given in Belgium implicating E in terrorism-related activity. He did not then disclose them to the police who, before renewal of the order, informed him that there was insufficient evidence to prosecute E.

Mr Ben Emmerson, QC, Mr Raza Husain and Ms Helen Law for E; Mr Ian Burnett, QC, Mr Philip Sales, QC, Mr Tim Eicke, Ms Cecilia Ivimy and Mr Andrew O’Connor for the Home Secretary; Mr David Pannick, QC and Mr Alex Bailin for Liberty, intervening; Mr Michael Supperstone, QC and Ms Judith Farbey, special advocates, made no submissions.

LORD BINGHAM referred to E’s submission that it was a fundamental premise of the 2005 Act, and section 8 in particular, that where there were realistic prospects of prosecuting an individual against whom it was proposed to make a control order, he would indeed be prosecuted; and to the Home Secretary’s acceptance that control orders should only be made where the individual could not realistically be prosecuted for a terrorism-related offence.

His Lordship said that there could be no doubt about that governing principle or its importance, since the control order regime was not intended to be an alternative to the ordinary processes of criminal justice.

In agreement with the judge and the Court of Appeal, he rejected E’s submission that compliance by the Home Secretary with his duty under section 8(2), to consult the relevant chief police officer, prior to making a control order, as to the prospect of prosecution, was a condition precedent to his power to make the order.

Section 2(1) of the 2005 Act prescribed the circumstances in which the Home Secretary might make a non-derogating control order, and compliance with section 8(2) was not included as a qualifying condition. But the sub-section was expressed in strong terms; the duty was to be taken seriously.

On the Home Secretary’s seeking permission to make an order, it was to be expected that the court, as a matter of strict routine, would seek to be satisfied that the section 8(2) duty had been complied with and, if not, to require convincing reasons for that omission.

For the same, and also practical, reasons his Lordship rejected E’s argument that absence of a realistic prospect of prosecution was a condition precedent to the making of the order: that the Home Secretary had not only to consult but to be given to understand that it was not feasible to prosecute with a reasonable prospect of success; unless that were so, it could not be necessary to impose obligations under an order, since it would not be shown that the public could not be protected by arresting, charging and prosecuting the individual.

The situation was, by definition, one in which the Home Secretary had reasonable grounds for suspecting involvement in terrorism-related activity; he had to consider it necessary for public protection to make a control order imposing obligations: see section 2(1). There might be a need to act with great urgency; the potential risk might be great.

It was one thing to require him to consult, but quite another to require him to obtain a clear answer: that was something the chief officer of police was unlikely to be in a position to give; being himself subject to a duty to consult the relevant prosecuting authority which in turn would require time for consideration. The condition precedent contended for would potentially emasculate what was intended to be an effective procedure, and could not be taken to represent Parliament’s intention.

It was not now challenged that in the present case consultation had taken place before the order was made.

The thrust of E’s argument was directed to the Home Secretary’s failure to ensure that the possibility of effective prosecution was kept under review thereafter. That duty was now accepted as was the obligation to provide the police with relevant material in his possession.

It was regrettable that the Belgian judgments were not made available promptly to the appropriate authorities, but the Court of Appeal’s reasoning could not be faulted: the judgments could not have given rise to a prosecution at the material time and the breach, although it might not be a technical one, had not materially contributed to and vitiated the Home Secretary’s decision.

The judge had erred in quashing the order. His Lordship would dismiss the appeal.

Lady Hale and Lord Carswell delivered concurring opinions; Lord Hoffmann and Lord Brown agreed with Lord Bingham.

Solicitors: Birnberg Peirce & Partners; Treasury Solicitor; Mr James Welch, Southwark; Treasury Solicitor, special advocates support unit.

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