Secretary of State for the Home Department v AF

This is an appeal by AF from an order dated 30 November 2007 made by Stanley Burnton J (‘the judge’). In the order the judge among other things refused an application that a hearing under section 3(10) of the Prevention of Terrorism Act 2005 (‘the PTA’) should be before a judge other than Ouseley J and made two declarations to which I refer below.

AF has been the subject of three non-derogating control orders under section 3 of the PTA. The first was PTA/6/2006 which was imposed on 24 May 2006. It required AF, among other things, to remain in his residence for 18 hours a day and to remain in a restricted area for the remaining 6 hours. The order was revoked on 11 September 2006 by the Secretary of State (‘the SSHD’) following the decision of this court in SSHD v JJ and Others [2006] EWCA Civ 1141.

It was replaced by PTA/33/2006 on the same day, 11 September 2006. This second order reduced the hours of curfew to 14 and relaxed some of the other restrictions in the first order. There followed a full hearing under section 3(10) of the PTA before Ouseley J. The hearing lasted 7 days and involved both extensive oral evidence and legal submissions. It also involved both open and closed hearings and open and closed evidence. Ouseley J handed down his judgment, [2007] EWHC (Admin) 651, on 30 March 2007. By an order of the same date, Ouseley J quashed PTA/33/2006 on the ground that the order constituted a deprivation of liberty under article 5 of the European Convention of Human Rights (‘the Convention’). In the course of his lengthy judgment, which ranged over a number of different issues, Ouseley J reached the following conclusions which are relevant or potentially relevant for present purposes:

In anticipation of the judgment of Ouseley J and in the light of his conclusion on article 5 of the Convention, the third control order PTA/4/2007 was made on 29 March 2007 and served on the following day. It reduced the period of curfew to 12 hours.

Both parties appealed to the House of Lords under the leap frog procedure contained in section 12(3)(b) of the Administration of Justice Act 1969 and the appeal was heard together with an appeal from a decision of this court in SSHD v MB [2006] EWCA Civ 1140, [2007] QB 446. The House of Lords gave judgment in both cases on 31 October 2007. On the same day the House of Lords gave judgment in SSHD v JJ and Others [2007] UKHL 45 [2007] 3 WLR 642.

By a majority the House of Lords held in SSHD v MB & AF [2007] UKHL 47, [2007] 3 WLR 681

Before the House of Lords gave its judgment on 31 October 2007, the second control order PTA/33/2006 expired on 10 September 2007. This was because control orders (like the PTA itself) only have a life of one year and the order had been imposed on 11 September 2006. In fact AF had not been subject to PTA/33/2006 since 31 March 2007 when it was quashed by Ouseley J and replaced by PTA/4/2007. PTA/33/2006 was (I suppose) retrospectively revived by the order of the House of Lords which reversed Ouseley J’s order and at the same time remitted it for reconsideration in the light of the majority opinions. Since, even if retrospectively revived, the order expired on 10 September 2007, the decision of the court on remission, so far as I can see, only has historical significance or potential significance.

In the meantime, PTA/33/2006 was (as I have just said) replaced by PTA/4/2007 on 29 or 30 March 2007. That order was modified in some respects by Goldring J on 17 August 2007 and was further modified on 31 October and 9 November 2007. In particular, the number of hours of curfew was increased to 16 on 31 October in the light of the decision of the House of Lords.

In these circumstances the matter was initially listed before Stanley Burnton J for directions in relation to the substantive hearing required under section 3 of the PTA in respect of PTA/4/2007. The control order was made under section 3(2). It follows that directions “for a hearing in relation to the order” were required under section 3(2)(c).

Section 3(10) provides:

“On a hearing in pursuance of directions under subsection 2(c) …, the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed -

(a)

his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

(b)

his decisions on the imposition of each of the obligations imposed by the order. ”

It was held by this court in SSHD v MB that section 3(10) should be construed so that the function of the court at such a hearing is to consider whether any of the decisions identified in section 3(10)(a) and (b) is (not was) flawed as at the date of the hearing. By section 3(11) the court must apply the principles applicable on an application for judicial review. This court explained at [60] of SSHD v MB that on the true construction of the PTA the review involved the court deciding whether the facts relied upon by the SSHD amounted (as at the date of the hearing) to reasonable grounds for suspecting that the controlee is or has been involved in terrorism-related activity.

It follows that the role of the court when considering PTA/4/2007 is to decide whether

In the light of the recent jurisprudence there is an anterior question, namely whether the hearing of those questions will be a fair hearing in accordance with article 6 of the Convention. As already indicated, Ouseley J held that the hearing under section 3(10) in respect of PTA/33/2006 was fair. He did so on the basis of the decision of this court in SSHD v MB (to which I was a party together with Lord Phillips CJ and Sir Igor Judge P) that, although the case against AF depended on the closed material which he was not permitted to see and, although he was not permitted to be told even the gist of the case against him, the hearing was fair because of the role played by the special advocates Mr Hugo Keith and Mr Jeremy Johnson. As I said earlier, the majority in the House of Lords took a somewhat different view. The principles applicable to the question whether the hearing under section 3(10) of the PTA in respect of PTA/4/2007 will be fair within the meaning of article 6 of the Convention will be different from those applied by Ouseley J in respect of PTA/33/2006. They will be the principles to be deduced from the speeches of the majority in SSHD v MB and AF. The same principles will be applicable to the question remitted to the Administrative Court by the House of Lords in respect of PTA/33/2006.

On 21 November Stanley Burnton J was invited to consider a preliminary question or questions said to arise or potentially to arise in relation to the hearings in respect of PTA/33/2006 and PTA/4/2007. The judge said at [1] that two issues of importance arose in relation to hearings under section 3(10) and 10(4) of the PTA namely

The judge heard argument on 21 November, handed down a written judgment on 28 November and made an order on 30 November dismissing the application and making these two declarations in paragraphs 2 and 3.

“2.

A judge who decides issues arising on a hearing under section 3(10) to the Respondent (or to the Home Secretary) is not for that reason disqualified by prejudgment from adjudicating in subsequent proceedings under the Act to which the Respondent is a party.

3.

Findings made by the court on issues arising on a hearing under section 3(10) are in principle to be regarded as binding between the Home Secretary and the respondent in relation to matters at the date of that hearing on a subsequent hearing under that subsection, subject to any differences in the evidence relevant to those issues before the court on each of those hearings.”

The judge granted permission to appeal.

Since the judgment of the judge on 30 November a number of relevant events have taken place. A directions hearing took place before the judge on 5 February 2008, by which time it had been decided (for reasons which have nothing to do with the issues in these proceedings) that the section 3(10) hearing in respect of PTA/4/2007, including the hearing of the question whether such a hearing will satisfy article 6 of the Convention, will come before the judge (ie Stanley Burnton J) and not Ouseley J. So too will the hearing of the issue relating to PTA/33/2006 which was remitted by the House of Lords, namely whether the hearing before Ouseley J in 2007 satisfied article 6. This makes the appeal against paragraph 2 of the order of the judge quoted above academic in this case.

Before the directions hearing the parties had exchanged skeleton arguments, which considered, among other things, how matters should proceed. It is not necessary to rehearse those arguments here. The judge decided that he would hold a closed hearing to consider the article 6 issues in relation to both control orders before deciding how to proceed thereafter. That hearing is to take place on 25 February. The remaining issues have been adjourned to 11 March. It is not clear whether the judge proposes to reach a decision on the article 6 issues before proceeding further. Nor is it clear, at any rate to me, whether he proposes to determine the article 6 issues only in relation to PTA/4/2007 or whether he also proposes to determine them in relation to PTA/33/2006.

Those are essentially matters for the judge. So far as I can see, if he were to conclude that the hearing in relation to PTA/4/2007 would be unfair and contrary to article 6, it would follow that the hearing before Ouseley J was also unfair. If he were to hold that the hearing in relation to PTA/4/2007 is or will be fair, he will of course proceed to conduct it and, whether in those circumstances it would be necessary to consider whether the hearing before Ouseley J was fair, might depend upon whether the resolution of that issue would or might be relevant to the other issues in relation to PTA/4/2007. Otherwise it is difficult to see what advantage there would be in expending time and money considering whether the hearing before Ouseley J was fair, since that order has expired and AF does not seem likely to have a historical claim based on the unfairness of the hearing because he was not in fact subject to PTA/33/2006 between 30 March, when it was quashed by Ouseley J, and 11 September, when it expired.

However, I recognise that it may not be possible for the judge to decide whether the PTA/4/2007 is or will be fair before considering at least some of the issues adjourned to 11 March. It may indeed be appropriate to proceed by stages, as suggested by Baroness Hale in SSHD v MB and AF at [72]. Also, it may be that the SSHD will wish to rely upon the findings of Ouseley J in connection with one or more of the substantive issues which arise under PTA/4/2007. In that event it must be open to AF to argue that that would not be appropriate on the ground that the hearing before Ouseley J was unfair. These are all matters for the judge and not, as I see it, for this court in this appeal. In these circumstances we are not concerned in this appeal with article 6 issues or with the reasoning of the majority in SSHD v MB and AF, as subsequently considered by Collins J in Re Bullivant [2007] EWHC 2938 (Admin) and by Silber J in SSHD v AE [2008] EWHC 132 (Admin).

As things stand, the most important issue in this appeal is the correct approach to previous conclusions of a judge at a hearing under section 3(10). In this regard the judge’s conclusion is stated in paragraph 3 of his order quoted above as follows:

“Findings made by the court on issues arising on a hearing under section 3(10) are in principle to be regarded as binding between the Home Secretary and the respondent in relation to matters at the date of that hearing on a subsequent hearing under that subsection, subject to any differences in the evidence relevant to those issues before the court on each of those hearings.”

Mr Otty submits on behalf of AF that it is wrong in principle to treat findings at a previous section 3(10) hearing as binding at a future such hearing. He goes further and submits that such findings are irrelevant at a future hearing and that the SSHD must establish her case afresh. Alternatively he submits that the court is entitled to have regard to findings made at an earlier section 3(10) hearing but will itself

At the hearing of the appeal the difference between the positions taken by the parties was less marked than had at first appeared. While the SSHD wishes or may wish to rely on previous findings as a starting point which should not be departed from in the absence of a change of circumstances, save perhaps in an exceptional case, Ms Grange accepted that it was wrong to treat such findings as binding and that the order of the judge would have to be altered to reflect that concession.

In considering the issues that remain it is I think of some importance to have in mind the exercise upon which the court is engaged under section 3(10) and to consider the circumstances in which there might be successive hearings under section 3(10). I consider first the statutory context.

I have already referred to the relevant parts of section 3, which requires a hearing on the issues stated above in the case of every non-derogating control order made by the SSHD with the permission of the court. By section 2(4)(a) such an order has effect for 12 months but, by section 2(4)(b), it may be renewed on one or more occasions in accordance with the provisions of the section. Those provisions include section 2(6), which provides that the SSHD may renew the control order, with or without modifications, if he -:

“(a)

considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and

(b)

considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.”

Also, by section 7(2)(d) of the PTA the SSHD has the power to make such modifications to the obligations in the order as she considers necessary for the same purposes as are set out in section 2(6)(b).

I have put the words continue in force in italics because they point to one of the key differences between a renewed or modified order and the original order. The other key difference is that there is no equivalent in section 2(6), or elsewhere in respect of renewed or modified orders, to section 2(1)(a), which provides that before making a non-derogating order the SSHD must have reasonable grounds for suspecting that AF is or has been involved in terrorism-related activities. In the case of a renewal or modification the statute takes it for granted that the SSHD had such reasonable grounds, no doubt in part because there will have been a hearing under section 3(10), at which that question will have been tested.

It is significant to note that in such circumstances the controlee is not given the same rights as he has under section 3(10). His rights after renewal or modification are set out in section 10. Section 10(4), which relates to renewed orders, provides:

(4)

The function of the court on an appeal against the renewal of a non-derogating control order, or on an appeal against a decision not to revoke such an order, is to determine whether either or both of the following decisions of the Secretary of State was flawed -

(a)

his decision that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force;

(b)

his decision that the obligations to be imposed by the renewed order, or (as the case may be) the obligations imposed by the order to which the application for revocation relates, are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.

Section 10(5) contains a similar provision in the case of an appeal against a modification.

Mr Otty submits that the differences between the functions of the court when a control order is first made and when an order is modified or renewed are significant because they show that, whereas in the first case the court must be satisfied that there are reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity, there is no such requirement in the cases of modification or renewal. For my part, I would entirely accept that the provisions are different and, indeed, that the statute provides that in every case of a new (as opposed to renewed) order the Secretary of State must have reasonable grounds for the belief just described. Moreover, I would accept that the effect of the decision of this court in SSHD v MB, in a part of the judgment which is unaffected by the views of the House of Lords, is that the court must be satisfied that such grounds exist at the time of the hearing under section 3(10) of the PTA. It follows that the court must apply its mind to that question.

Further, it is true that the PTA does not treat the existence of such grounds as read, as it does in the case of a renewal or modification. However, it is not the SSHD’s case that the grounds should be treated as read, only that an earlier finding by the court should be regarded as a starting point in the case of any new non-derogating order. While there is nothing in the PTA which provides that the earlier decision is decisive, there is equally nothing in the PTA which provides that it is irrelevant. I would reject the submission that the PTA contemplates that an earlier decision is irrelevant.

Such a conclusion would be very odd in the light of the provisions of the Act to which I have referred. Take a case in which, perhaps because of administrative oversight, the SSHD fails to renew the order in accordance with section 2(6) and (7), which (as I read section 2) she must do before the order expires and then, after say three weeks, the error is discovered and a new order is made. There would have to be a hearing under section 3(10) and the court would have to be satisfied that the security grounds set out in section 2(1)(a) were satisfied as at the date of the hearing. In these circumstances it would, to my mind, be startling if the court could disregard the findings of the court on the earlier hearing under section 3(10), when, if the order had been renewed three weeks earlier, those findings would be conclusive. The sensible approach would be for the court to have regard to them.

The only situation in which it was suggested on behalf of the SSHD that this situation might arise, save perhaps in the very unusual circumstances of this case, is where a control order expires and the SSHD decides not to renew it and then, say two or three years later, he or she decides to make a new order. In those circumstances there will on that hypothesis be a change of circumstances, so that, whatever approach is adopted, an historical decision would be likely to have comparatively little weight.

In all these circumstances, unless constrained by authority, I would accept Mr Otty’s alternative submission, albeit with some modifications. I would hold, as he submitted, that the court is entitled to have regard to findings made at an earlier section 3(10) hearing but will itself

A further part of Mr Otty’s alternative submission was that it will only be in a case where there has been no change of any kind to the nature of the evidence adduced at the first section 3(10) hearing that the findings made on that first occasion will be capable of being relied on by the court without reconsideration of the underlying material on which they were based. There is I think considerable force in that submission but I do not think that it is possible to be so prescriptive. It seems to me that it will be a matter for the judge in each case to decide what weight it is appropriate to give to earlier decisions or findings. It will be a matter for judgment how far, if at all, it is appropriate to reopen issues which have been considered previously. Where the hearing is only a short time after the first hearing and little has changed, a judge will no doubt be very reluctant to revisit evidence which he has considered only very recently unless there is good reason to do so. It would I think be open to a judge in appropriate circumstances to refuse to revisit part of the evidence in an earlier hearing. It will be a case management decision how best to proceed.

The underlying objective in every case is of course to deal with the case justly and, especially in cases of this type, where the controlee may not be given the detail of the case against him, the judge must ensure that the proceedings are fair. The majority opinions in SSHD v MB and AF make that very clear. Moreover, it does seem to me that the court should have in mind that, although proceedings under section 3(10) are civil proceedings, as Lord Bingham put it at [24] of SSHD v MB and AF, a controlee is entitled to such measure of protection as is commensurate with the gravity of the potential consequences. See also per Baroness Hale at [65], Lord Carswell at [82] and Lord Brown at [90].

This approach seems to me to be supported by the approach to hearings under section 3(10) discussed by this court in SSHD v MB. Lord Phillips CJ, giving the judgment of the court, said at [67]:

“The issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may involve considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the procedure for determining whether reasonable grounds for suspicion exist that has to be fair if Article 6 is to be satisfied.”

This is the exercise which must be carried out under section 3(10) in every case. It seems to me that, save perhaps in the case where the very same exercise has been carried out very recently, the findings at an earlier hearing will be only one factor to be taken into account. It is important not to be too prescriptive. All depends upon the circumstances of the particular case.

I turn to the reliance placed by the SSHD on the guidance given by the IAT (now the AIT) as to the weight to be attached on a subsequent human rights challenge to the findings of the adjudicator who had rejected an earlier asylum appeal in Devaseelan v SSHD [2003] Imm AR 1, as approved by this court in LD (Algeria) v SSHD [2004] EWCA Civ 804 (in relation to cases where, as here, the parties are identical) and AA (Somalia) v SSHD [2007] EWCA Civ 1040. It was submitted to the judge that the findings of Ouseley J in PTA/33/2006 are to be treated as “the starting point” for the consideration of the issues raised in PTA/4/2007, irrespective of the identity of the judge. The principal thrust of the submissions before the judge was that this was true in every case and that, given that that was the case, there was no basis for concluding that Ouseley J should be recused from holding the hearing under section 3(10).

The judge accepted those submissions. Moreover, he did so as the basis for his conclusion that Ouseley J should not be recused on the ground of pre-judgment. He said at [17]:

“However, in my judgment this contrast, and the wording of section 3(10) itself, does not indicate that Parliament intended to exclude the normal principle of public law that a decision, and in particular a judicial decision, made between parties should be respected in subsequent proceedings. Clearer wording would have been used if this had been intended. The principle is demonstrated by the authorities cited by Mr Eicke referred to above, but is not confined to immigration or asylum cases (or indeed to public law): see the discussion in the judgment of Carnwath LJ in AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 1040. ”

The judge then rejected at [18] Mr Otty’s submission that there was a distinction between this type of case and asylum and immigration cases. For present purposes the critical part of the judge’s reasoning is I think at [19-20]:

“19.

It follows that on a hearing under section 3(10), where there has been a previous hearing under the section in relation to an earlier control order, the starting point will be the findings of the court on the earlier hearing. Assuming no successful appeal against the findings in the first hearing, in the unlikely event of there being no difference in evidence or issues between the two hearings, the Court would treat the earlier findings as binding. That being so, there is no objective reason why the judge who decided the issues in the earlier hearing adversely to the respondent (or to the Home Secretary) should be disqualified by prejudgment from deciding the issues on the second hearing.

20.

This does not mean that in the present case on the section 3(10) hearing on PTA/4/2007 the Court is bound to reach the same factual conclusions as those originally reached by Ouseley J in the hearing in relation to PTA/33/2006. The evidence will differ, in that it will have been brought up to date by both parties; there may be additional evidence quite apart from the consequences of the decision of the House of Lords; the Secretary of State may decide to disclose evidence that was previously closed, which may lead AF to supplement his evidence; he may decide to testify; the Court may preclude the Secretary of State from relying on some evidence on which he was previously able to rely; and the Court will have to consider the consequences of the passage of time during which AF has been subject to control orders. Inevitably, as all counsel recognise, the decisions of the Court on the admissibility of evidence on which the Secretary of State seeks to rely will impact on the issue remitted by the House of Lords on PTA/33/2006.”

I would not cast doubt on the general proposition that in public law cases, where there has been a previous decision in proceedings between the same parties, and the same question arises in subsequent proceedings the starting point is likely to be the decision in the first proceedings. However, all will depend upon the circumstances. The present case does seem to me to be a very different kind of case from that discussed in the cases upon which the SSHD relied before the judge. Indeed a reading of what are known as the Devaseelan guidelines shows that they are not directly applicable, unsurprisingly since they are dealing with very different problems.

The guidelines are not unnaturally tailored to the particular problems involved in the case with which Devaseelan was concerned, namely where (under the legislation then in force) adjudicators of human rights challenges were inevitably reconsidering decisions of previous adjudicators on asylum claims arising out of the same facts.

In Devaseelan the IAT gave guidance as to the weight to be attached to the findings of the adjudicator who had rejected the asylum appeal. The IAT said, amongst other things, that the first adjudicator’s determination “should always be the starting point”. Paragraphs 37 and 38 of the IAT decision included the following:

“37.

... The first Adjudicator's determination stands (unchallenged, or not successfully challenged) as an assessment of the claim the Appellant was then making, at the time of that determination. It is not binding on the second Adjudicator; but, on the other hand, the second Adjudicator is not hearing an appeal against it. As an assessment of the matters that were before the first Adjudicator it should simply be regarded as unquestioned. It may be built upon, and, as a result, the outcome of the hearing before the second Adjudicator may be quite different from what might have been expected from a reading of the first determination only. But it is not the second Adjudicator's role to consider arguments intended to undermine the first Adjudicator's determination.

38.

The second Adjudicator must, however be careful to recognise that the issue before him is not the issue that was before the first Adjudicator. In particular, time has passed; and the situation at the time of the second Adjudicator's determination may be shown to be different from that which obtained previously. Appellants may want to ask the second Adjudicator to consider arguments on issues that were not – or could not be – raised before the first Adjudicator; or evidence that was not – or could not have been – presented to the first Adjudicator.”

In paragraphs 39-42, under various headings, the IAT set out the guidelines as follows:

(1)

The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.

(2)

Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.

(3)

Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.

(4)

Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute.) It must also be borne in mind that the first Adjudicator's determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.

(5)

Evidence of other facts – for example country evidence – may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first Adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the Appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant's removal at the time of the second Adjudicator's determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.

(6)

If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase 'the same evidence as that available to the Appellant' at the time of the first determination. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken to have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion.

(7)

The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant's failure to adduce relevant evidence before the first Adjudicator should not be, as it were, held against him. We think such reasons will be rare. There is an increasing tendency to suggest that unfavourable decisions by Adjudicators are brought about by error or incompetence on the part of representatives. New representatives blame old representatives; sometimes representatives blame themselves for prolonging the litigation by their inadequacy (without, of course, offering the public any compensation for the wrong from which they have profited by fees). Immigration practitioners come within the supervision of the Immigration Services Commissioner under part V of the 1999 Act. He has power to register, investigate and cancel the registration of any practitioner, and solicitors and counsel are, in addition, subject to their own professional bodies. An Adjudicator should be very slow to conclude that an appeal before another Adjudicator has been materially affected by a representative's error or incompetence; and such a finding should always be reported (through arrangements made by the Chief Adjudicator) to the Immigration Services Commissioner.

Having said that, we do accept that there will be occasional cases where the circumstances of the first appeal were such that it would be right for the second Adjudicator to look at the matter as if the first determination had never been made. (We think it unlikely that the second Adjudicator would, in such a case, be able to build very meaningfully on the first Adjudicator's determination; but we emphasise that, even in such a case, the first determination stands as the determination of the first appeal.)

(8)

We do not suggest that, in the foregoing, we have covered every possibility. By covering the major categories into which second appeals fall, we intend to indicate the principles for dealing with such appeals. It will be for the second Adjudicator to decide which of them is or are appropriate in any given case.”

I have set out those guidelines in detail because it can to my mind immediately be seen from them that the problems facing a judge conducting a hearing under section 3(10) of the PTA is much more complex than that with which the guidelines are concerned. This is apparent from the description of the exercise described in [67] of SSHD v MB in this court and quoted above.

The distinction between the Devaseelan kind of case and this includes the fact that in asylum cases the appellant knows the case against him and very frequently gives evidence. His credibility is at the centre of the case both in respect of asylum and human rights. That is to be contrasted with the position of the controlee. Although his credibility may in one sense be in issue, he often knows little and sometimes (at any rate thus far) nothing about the case against him and (as in AF’s case before Ouseley J) does not give evidence. Neither he nor his counsel is present during the critical part of the hearing, which is closed, and, once the closed material has been disclosed to the special advocate, neither he nor his counsel can discuss the case with the special advocate. Although I recognise that at a second hearing in respect of a new control order the judge and the special advocate will have a transcript of the evidence and submissions at the first hearing, neither the controlee nor his counsel will be able to see it. In these circumstances, a judge should in my opinion be very reluctant to treat the finding of the judge conducting the hearing under an earlier order as in practice determinative, save perhaps in the kind of case to which I referred earlier where the two hearings are for some reason very close together.

In any event the authorities to which I have referred show that the Devaseelan guidelines are themselves very flexible. This can be seen, not only from the guidelines themselves, but also from the later cases. It was for example stressed in LD (Algeria) v SSHD, where the judgment of the court was given by Judge LJ. Although the court rejected a challenge to the guidelines, in doing so it stressed both the particular role of the guidelines and their flexibility. Thus in [29] Judge LJ said this:

“In our judgment, the IAT, specialising in this field, was entitled to provide guidance to the entire body of specialist adjudicators about how they should deal with the fact of an earlier unsuccessful application when deciding the later one. Such guidance was essential to ensure consistency of approach among special adjudicators. The guidelines remedied an immediate and pressing difficulty, with direct application to, but not exclusively concerned with, the many cases in which, after unsuccessfully exhausting all the possible legal channels, asylum seekers remained in the United Kingdom, and put forward a case on human rights grounds after October 2000”

The necessity for the guidelines thus arose out of very different circumstances from those with which we are concerned.

In [30] Judge LJ said:

“30.

Perhaps the most important feature of the guidance is that the fundamental obligation of every special adjudicator independently to decide each new application on its own individual merits was preserved. The guidance was expressly subject to this overriding principle.”

He then set out both part of [37] of the IAT decision in Devaseelan and guideline 8 quoted above and added:

“This is not the language of res judicata nor estoppel. And it is not open to be construed as such. In view of the argument, we must emphasise that in Devaseelan the IAT purported to do no more than provide guidance, and in our judgment, properly exercising its responsibilities, that indeed is what it did.”

It is important to note that, as in the case of the Devaseelan guidelines, the principle relied upon in this case is not a principle of res judicata or issue estoppel. That being so, I do not think that it is appropriate to speak of findings of a judge at a hearing under an earlier order as being “binding”. That seems to me to be the language of issue estoppel. It also raises the question what is to be binding. Is it every conclusion of fact and, if not, what is it? It was no doubt in these circumstances that the SSHD conceded that it was wrong to treat the earlier findings as “binding”. If they are not “binding” then how should they be taken into account?

Carnwath LJ considered this problem in [54] of AA (Somalia) v SSHD, in which he and Ward LJ comprised the majority with Hooper LJ dissenting. At [54] Carnwath LJ considered the status of the first decision in circumstances where there was no issue estoppel or res judicata. He said:

“As Hooper LJ has noted, this passage is prefaced by a statement that the first determination is not "binding" on the second Adjudicator. However, I understand this to be saying no more than that it is not binding in the technical sense of issue estoppel or res judicata. The whole purpose of the guidelines is to indicate the circumstances in which it is appropriate to follow the first decision rather than allow the issue to be relitigated. This is most explicit in the above extract from guideline (6) (directed specifically at an Article 3 claim based on the same reasons as a refugee claim). The same point is underlined by the remainder of guideline (6), which explains the limits to the new evidence which might justify reopening the first decision.”

Carnwath LJ then quoted from guideline 6, which is set out above.

Carnwath LJ’s approach I think be seen from [55] as follows:

“The legal considerations underpinning the guidelines can be seen in the tribunal's treatment of the respective arguments. Mr Lewis for the applicant is recorded as submitting that -

"…the previous determination is merely' a relevant matter to be taken into account' in the human rights appeal, but that neither the findings nor the conclusions of the first Adjudicator are binding upon the second Adjudicator…" (para 31)

Miss Giovannetti, for the Secretary of State, accepted that the first Adjudicator's determination "cannot be regarded as binding on the second Adjudicator", but submitted that it was proper for a second Adjudicator to have regard to the first Adjudicator's findings, and that "the second Adjudicator should only differ from those findings where there is good reason to do so":

"If the human rights claim was based on a different factual matrix, it would generally be necessary to make new findings, probably on additional evidence. The different factual matrix would itself be a good reason for not following and applying the first Adjudicator's determination. Otherwise, however, legal and policy considerations demanded that the Appellant's second appeal be determined in line with his first." (emphasis added)

Miss Giovannetti identified four "legal and policy considerations" leading to that proposition:

The first is fairness: it would be unfair to an Appellant, who had satisfied the first Adjudicator that his account of events was credible, to deprive him of the benefit of that finding. If that is right, it must follow that an Appellant who has failed to satisfy an Adjudicator of his credibility is not entitled to have the same evidence re-assessed by a second Adjudicator. It is not fair to the public for there to be a system in which favourable findings stand but unfavourable findings are always questionable. Secondly, general principles of consistency and finality in litigation are important even in the absence of a rule of res judicata. Thirdly, the general approach to findings of fact in immigration cases both on appeal to the Tribunal and outside the IAA (e.g. ex parte Danaie [1998] 1mm AR 84) is that findings of fact stand unless there is good reason to displace them. Fourthly, it would, in Miss Giovannetti's submission, be contrary to good administration to have a system which allowed for the continuing existence of two undisturbed determinations of the IAA containing inconsistent findings of fact in relation to the same individual." (para 33-4)

The tribunal thought the answer lay somewhere between the two submissions, but "considerably nearer" that of the Secretary of State.”

Finally in [57] Carnwath LJ stressed, in the light of LD (Algeria) that the guidelines were a proper exercise of the IAT’s role as a specialist body, in order to secure consistency, while respecting the “fundamental obligation” of each adjudicator to decide each case on its own merits. Carnwath LJ also stressed the view stated in [40] of LD (Algeria) that the guidelines must be applied flexibly.

I have already expressed my reasons for concluding that the Devaseelan guidelines cannot simply be transferred wholesale to the different context of a hearing under section 3(10) of the PTA. I have also expressed my view that the findings in an earlier decision of a judge under section 3(10) should be taken into account and that there may be circumstances in which a judge might conclude that justice did not require the reopening of conclusions reached earlier. However, the judge conducting a hearing under section 3(10) does not make findings of fact in the way that an adjudicator does (or did) on an asylum claim or a human rights claim. I do not think that one can simply say that there has been no change of circumstances and that a judge conducting a section 3(10) in respect of a second control order can properly be regarded as bound by such conclusions as were reached at an earlier hearing. The principle is simply that he must have such regard to those conclusions as is appropriate in the circumstances.

There is I think very little between this approach and that of the judge. Indeed, I entirely agree with his reasoning at [20] of his judgment set out above. The only point upon which I respectfully differ from him is his formulation of the declaration in paragraph 3 of his order, as follows:

“Findings made by the court on issues arising on a hearing under section 3(10) are in principle to be regarded as binding between the Home Secretary and the respondent in relation to matters at the date of that hearing on a subsequent hearing under that subsection, subject to any differences in the evidence relevant to those issues before the court on each of those hearings.”

I would set aside that declaration. It was accepted on behalf of the Secretary of State that a second judge was not “bound” by any part of the decision of the first and the declaration suggests that the role of the judge conducting a section 3(10) hearing in respect of a new control order is to start with the conclusions of the judge who considered the first control order and then identify whether the circumstances are now sufficiently different to depart from the conclusions of the first judge.

I do not think that that is the correct approach. It is the duty of the judge conducting the second section 3(10) hearing to consider the questions identified above as at the date of the hearing. In these circumstances I do not think that it is appropriate to treat an earlier decision on a different control order as a starting point. For the reasons I have given the judge should take it into account in the way suggested in [30-33] above.

The only other issue in this appeal which it is appropriate to address is apparent bias, although it may be largely, if not entirely, academic in the events which have happened, since Ouseley J will not be conducting either the hearing under section 3(10) in respect of PTA/4/2007 or the matter remitted in respect of PTA/33/2006.

The general principle is not in dispute. It has most recently been stated by Lord Bingham, giving the judgment of the Judicial Committee of the Privy Council in Prince Bolkiah v The State of Brunei [2007] UKPC 62 at [15]. It is a matter for the court to decide whether there is apparent bias or, as Lord Bingham put it, an appearance of bias. The court must first ascertain all the circumstances which bear on the suggestion that the judge was (or would be) biased. It must then ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was (or would be) a real possibility that the judge was (or would be) subject to bias; that is that the judge might have been (or be) influenced for or against one or other party for reasons extraneous to the legal or factual merits of the case.

Mr Otty drew our attention to the judgments of Laws and Keene LJJ in Sengupta v Holmes [2002] EWCA Civ 1104 at [25] and [33-4] and [44] respectively. Laws LJ had referred to two cases in the High Court of Australia, namely Re JRL ex parte CJL (1986) 161 CLR 342 and Livesey v New South Wales Bar Association (1983) 151 CLR 288. They show that the circumstances can be such that a judge who has made findings of fact against a party or reached conclusions as to the credit of a party in previous proceedings may have so conducted himself that a fair-minded and informed observer would conclude that he might be prejudiced against him.

However, as I read the authorities, it all depends upon the facts. I do not think that the mere circumstance that the judge has reached conclusions of fact which are adverse to a party of itself leads to the conclusion that there is an appearance of bias. Laws LJ put it thus at [32]:

“If a judge has presided at a first instance trial and roundly concluded on the facts – after hearing disputed, perhaps hotly disputed, evidence – that one of the parties lacks all merit, everyone would accept that it would be unthinkable that he should sit on that party’s appeal”.

However, there are many cases in which issues of fact are remitted to the trial judge to consider or reconsider in the light of, say, a decision of an appellate court. It is a matter for judgment in each case whether the test identified above is satisfied. It seems to me to be very unlikely that the circumstances of successive hearings under section 3(10) of the PTA in respect of successive control orders would be such that a fair-minded observer would think that a judge who considered the first one might not be able fairly to consider the second one. On the contrary, it seems to me that justice is likely to be best served by having the same judge. I see no reason in principle why, in the ordinary case, a judge should not be able to consider the evidence available at the second hearing afresh entirely fairly, whether or not he had previously reached a conclusion in respect of an earlier control order where some of the evidence was the same.

This is not to say that there might not be particular circumstances which might lead to the conclusion that that was not so. Whether there are or not will depend upon the circumstances of the case concerned.

It is not I think necessary to say more than that, save perhaps to add that, if the point had been live, I would not have held that it was not appropriate for Ouseley J to conduct either the hearing in respect of PTA/4/2007 or the remitted hearing under PTA/33/2006 on the ground of apparent bias. I am not persuaded that a fair-minded and informed observer would think that Ouseley J might not conduct either such hearing fairly because of what Mr Otty called potential unfairness. When he reached his conclusions the relevant principles were those stated by this court in SSHD v MB, whereas they are now those stated by the House of Lords in SSHD v MB and AF. I see no reason why he should not be able conscientiously to reconsider his conclusions in the light of the judgments in the House of Lords. Lord Carswell appears to have thought that this was so at [85] of SSHD v MB and AF. I am not sure whether it is now said that we should set aside the declaration in paragraph 2 of the judge’s order but I would decline to do so.

I would only add that, in giving these reasons, I do not wish to prejudge in any way the issues before the judge, including any question whether the hearing before Ouseley J was fair: see the brief discussion at [17] and [18] below.

For the reasons I have given I would set aside the declaration in paragraph 3 of the order made by the judge but not that in paragraph 2. As at present advised I do not think that it is necessary to replace the declaration in paragraph 3 with another form of declaration. I hope that judges will be able to approach section 3(10) hearings in respect of a second or subsequent control order in accordance with the approach which I have summarised in [30-33] above.

I agree.

I also agree.