The court re-considered a control order made on the basis of material withheld from the defendant. The Secretary of State had now withdrawn his reliance on that material, rather than make further disclosures. The prosecution invited the court to undertake not the exercise required by section 3(10) of the 2005 Act – to determine whether the decision of the Secretary of State that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order – but to ask whether or not, given the withdrawal of the material upon which the decision was essentially founded, it remains possible to uphold that decision on the basis of what is left.
Held: ‘if I can perform a task that is closer to the statutory exercise than that which [the prosector] suggests, I should.’ The court had had jurisdiction to make the original order, and the order was not therefore a nullity. The court would not quash it, but ‘an order, lawful at inception, but which can no longer be sustained, should be revoked.’ It would be for a judge presented with any new application to assess the evidence then presented.
Judges:
Mitting J
Citations:
[2009] EWHC 1966 (Admin)
Links:
Statutes:
Prevention of Terrorism Act 2005 3(10)
Jurisdiction:
England and Wales
Citing:
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Secretary of State for the Home Department v AT and AW Admn 20-Mar-2009
Each claimant appealed against refusal of the Secretary to vary the non-derogating control orders to which they were subject.
Held: When the Secretary of State makes the decision to make a control order on a materially erroneous basis, the . .
Cited – Secretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
Cited – BM v Secretary Of State for the Home Department Admn 3-Jul-2009
An anti-terrorist control order had been made, inter alia on the basis of evidence which had been withheld from the defendant. That now being seen to be unlawful, the Secretary of State had withdrawn that evidence. The court was asked whether the . .
Cited – Secretary of State for the Home Department v JJ and others HL 31-Oct-2007
The Home Secretary appealed against a finding that a non-derogating control order was unlawful in that, in restricting the subject to an 18 hour curfew and otherwise severely limiting his social contacts, the order amounted to such a deprivation of . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Human Rights
Updated: 22 May 2022; Ref: scu.368625