A & Ors v Secretary of State for the Home Department

Q, I, Rideh, A, B, E, G, H, K, P and Othman are all subject to control orders made by the Secretary of State under section 2 of the Prevention of Terrorism Act 2005. The court has a role in supervising such orders applying the principles applicable for judicial review (see section 3(10) of the Act). The supervisory role is invoked as part of the procedure when an order is made (see section 3(3) and section 3(10)).

On 1st June 2005 Ouseley J directed that the issues identified in paragraphs 24–26 (excluding 24 (i) to 24 (v)) of the appellants' preliminary statement served on behalf of Rideh, A, B, E, G, H, K, P and Othman and the issue identified in paragraph 18(ii) of the appellant's notice served on behalf of Q be determined as a preliminary issue. Mr Starmer QC in his skeleton argument submits that, taken together, the issues for determination by us therefore are (a) the evidential status of the open judgment of SIAC in the cases of Ajouaou, A, B, C and D, and (b) the question of whether a judge who has made findings in related proceedings under the 2001 Act and/or imposed bail conditions on the appellant under 2001 Act and/or exercised the court's functions under sections 3(3), (6) or (8)of the 2005 Act should also exercise the court's functions under section 3(10) of the 2005 Act or should another judge be assigned to exercise those functions.

Before us Mr Raza Husain has appeared for all of the claimants other than Q and I, who have been represented by Mr Starmer QC and Miss Harrison, and Mr Robin Tam has appeared for the Secretary of State.

The problem which arises in relation to the SIAC judgments can best be illustrated by reference to the cases of Q and I. Q was arrested and detained in January 2003 under the provisions of section 23 of the 2001 Act. He appealed to SIAC against certification issued under that Act. That appeal has not in fact yet been heard.

Part of his time in custody prior to March 2005 related to a criminal offence, but after he had served his sentence in relation to that he remained detained under the 2001 Act.

On 11th March 2005 he was released on bail by Ouseley J sitting as a member of SIAC subject to strict conditions.

On the same day the Secretary of State made a non-derogatory control order under the Prevention of Terrorism Act, with very similar obligations to those imposed by Ouseley J.

On the following day, the certification under the 2001 Act was revoked and he was served with the control order.

On 16th March 2005 Ouseley J (this time sitting as a judge of the Administrative Court) exercised the functions of that court under section 3(3) of the 2005 Act and found the order of the Secretary of State of 11th March 2005 not to be obviously flawed.

On 11th April 2005 the Secretary of State served the open evidence on which he had relied in making the control order. It consisted of some redacted media information and the open judgment of SIAC in the case of Ajouaou and A, B, C and D.

Mr Starmer and those instructing him want to know (and have asked many times) in what ways the Secretary of State took account of that decision, which parts of it he relied on and for what purpose.

Mr Tam has told us that the Secretary of State can provide that information within seven days, and I would order that it be so provided.

Some of the material which was part of the SIAC judgment in Ajouaou and otherswas not made public because of the then current criminal proceedings at the Central Criminal Court (known as the ricin trial). That trial is now ended and those representing Q want access to that material (which was provided to the representatives of the defendants in the ricin trial). The material is said to be with the Crown Prosecution Service, and the Secretary of State is having difficulty recovering it. If it is not returned to the Secretary of State so that the Secretary of State can decide and act on disclosure in relation to these proceedings within seven days then I would order that this matter must be relisted before this court before 31st July on notice to the Crown Prosecution Service so that the court can decide what further order it should make.

In I's case his appeal against certification under the 2001 Act was determined by SIAC, under the chairmanship of Sullivan J on 23rd June 2004, and in his case a control order under the 2005 Act was made on 28th April 2005. In his case the Secretary of State has indicated that the SIAC judgment in his case, as well as the SIAC judgment in Ajouaou and otherswas relied on when deciding to make the control order. That means that Mr Starmer and those instructing him are entitled to hear from the Secretary of State within seven days how the Secretary of State took account of each of those judgments — which parts he relied on and for what purposes, and again I would so order.

Mr Husain did not seek any particular form of relief in relation to the SIAC judgments in relation to those he represents. He accepted Mr Tam's submission that at the end of the day the way in which the Secretary of State could properly have regard to SIAC judgments must depend on the issues being addressed and the circumstances of each individual case. I agree and would only add this. The function of this court under the 2005 Act is to apply the principles of judicial review to a decision taken by a Minister who is not bound by the rules of evidence as to the material to which he can properly have regard.

As was said during the course of argument, the court's function under the 2005 Act can be contrasted with the function of SIAC under the 2001 Act because under section 25 of the 2001 Act SIAC had to reach its own conclusion as to whether or not there were reasonable grounds for the issue of a certificate.

At present I do not believe that there is anything more to be said about the SIAC judgments. It is unnecessary and unhelpful to speculate at this stage about how they may have been used by the Secretary of State.

I turn to the question of recusal, in relation to which Mr Husain played the leading role. The principles are well known, and we were helpfully reminded of the test formulated by Lord Hope in Porter v Magill [2002] 2 AC 357. The question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. We were also reminded of a number of helpful passages in the earlier decision of the European Court of Human Rights in Hauschildt v Denmark (1989) 12 EHRR 266 and in the later decision of the Court of Appeal in this country in Sengupta and another v Holmes and another [2002] EWCA Civ 1104. In Sengupta, which concerned the position of a Lord Justice who had refused permission to appeal sitting to hear the appeal substantively after permission had been granted by other members of the court, beginning at paragraph 8 Laws LJ reviewed many of the authorities, domestic, European and Australian. As he pointed out, the key paragraphs in Hauschildtare probably paragraphs 50–52 of the judgment, in which the court indicated that in general a judge is not to be regarded as lacking impartiality because he has been involved in pre-trial decisions, but in a particular case or under particular statutory provisions, special circumstances may arise when the difference between what he has already decided and what he is now being asked to decide becomes tenuous.

To my mind the two Australian decisions cited by Laws LJ at paragraph 25 are particularly helpful. In Livesey v New South Wales Bar Association (1983) 151 CLR 288, the High Court of Australia said this:

“… a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if the judge sits to hear a case say at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.”

And in Re: JRL ex parte CJL (1986) 161 CLR 162, again in the High Court of Australia, Mason J said at 185:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, a disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’ … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

Laws LJ set out his own conclusions at paragraphs 32–34, when he said this:

“I accept that there will be some circumstances where such a fear would certainly be reasonable. 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. He has committed himself to a view of the facts which he himself had the responsibility to decide. This is the kind of circumstance referred to the High Court of Australia in Livesey. It is also, I think, at least comparable with the state of affairs that arose in Hauschildt. In some such cases the judge's inability to open his mind on the appeal would not be just apparent, but real: if after a careful and professional review of all the evidence, given by witnesses whom, so to speak, he has looked in the face, he has arrived at the conviction that the party in question is a crook or a rogue, guilty as charged (whether the case is criminal or civil), he might not conscientiously be able to put himself back into a state of mind where he has no preconceptions about the merits of the case.

There may also be cases, though one hopes there will not be, in which a judge called on to make a preliminary decision expresses himself in such vituperative language that any reasonable person will regard him as disqualified from taking a fair view of the case if he is called on to revisit it.”

Mr Husain submits that where first 1) a judge, as a member of SIAC, has reached his own conclusions as to the existence of reasonable grounds for the issue of a certificate (bearing in mind the part played by suspicion in the statutory test), or 2) where a judge has granted bail subject to stringent conditions, then reflected in a control order made by the Secretary of State, or 3) where a judge has exercised the court's functions under section 3(3) , (6)or (8) of the 2005 Act then that judge should not sit to exercise the functions of the court under section 3(10).

In my judgment it is impossible to reach such a sweeping conclusion. In the light of the authorities one has to look at the circumstances of the individual case and that has to be done, if it requires to be done at all, by the judge before whom the section 3(10) function is to be performed.

At first sight I was attracted by Mr Starmer's supporting argument in relation to Q. He pointed out that on 11th March the stringent bail conditions imposed by Ouseley J were incorporated by the Secretary of State into his control order. Surely that judge must be regarded as having formed a view as to the propriety of those conditions. And Mr Husain says that his clients are in a similar position. But then it emerged from Mr Tam that bail conditions were negotiated and in many if not all cases agreed. Mr Starmer says they were not agreed by Q. For present purposes I accept that. But those exchanges to my mind illustrated what the authorities show, and what I was inclined to think from the outset, namely that if the issue of recusal does arise it can only arise in relation to the particular facts of a given case and must be resolved in relation to what has happened. What previously has the judge decided; on what material? It may be that in relation to some of those represented before us a particular judge, if assigned to hear a particular case, may decide that he should not do so. But at this stage I am not prepared to decide that issue as a matter of generality. It simply does not lend itself to being disposed of in that way and, as I pointed out to counsel during the course of argument, were we to decide that judges need not recuse themselves where they have, in any individual case, made an earlier decision as a member of SIAC, or laid down conditions of bail, or exercised functions under section 3(3), (6) or (8)of the 2005 Act, that decision on our part would not really bind anyone. Those subject to control orders could raise the same issue before a judge assigned to hear their case, and on examination he could reach a different conclusion. I agree that a decision to the opposite effect would no doubt be of assistance to the Administrative Court office, but for the reasons which I have given I am satisfied that no such decision should be made.

MR JUSTICE WALKER: I agree.

LORD JUSTICE KENNEDY: Mr Husain?

MR HUSAIN: We seek, with respect, a detailed assessment of our public funding costs.

LORD JUSTICE KENNEDY: If you need such an order you may have it.

MR HUSAIN: I am grateful.

LORD JUSTICE KENNEDY: I suspect you are looking for a similar order.

MISS HARRISON: My Lord, yes.

LORD JUSTICE KENNEDY: You may have too it.

MR TAM: Technically, and for what it is worth, we suggest that the costs of the hearing be costs in the case.

LORD JUSTICE KENNEDY: If there be need for such an order, it seems entirely appropriate.

MR TAM: Thank you.

LORD JUSTICE KENNEDY: Thank you all for your attendance and for the careful submissions made.