Secretary of State for the Home Department v AF [2007] EWHC 2828 (Admin)

[2007] EWHC 2828 (Admin)Case Nos: PTA 33/2006 & PTA 4/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/11/2007
Before
MR JUSTICE STANLEY BURNTON
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTApplicantAFRespondent
Tim Eicke and Kate Grange (instructed by the Treasury Solicitor) for ApplicantTim Otty QC and Zubair Ahmad (instructed by Middleweeks) for RespondentJeremy Johnson as Special Advocate instructed by the Special Advocates’ Support OfficeHearing Hearing date: 21 November 2007
JudgmentStanley Burnton J :Introduction
[1]These proceedings raise issues of importance in relation to hearings under sections 3(10) and 10(4) of the Prevention of Terrorism Act 2005 (“the PTA”), namely:(a) whether a judge who decides issues arising on a hearing under section 3(10) of the Act adversely to the respondent (or to the Home Secretary) is disqualified from adjudicating in subsequent proceedings under the Act to which the respondent is a party; and(b) the status of findings made by a judge as a result of a hearing under section 3(10) of the Act in subsequent proceedings under the Act between the same parties.

The factual background

[2]The Respondent, AF, has been the subject of 3 non-derogating control orders, referred to using the case numbers of the various proceedings relating to them under section 3 of the PTA, namely PTA/6/2006, PTA/33/2006 and PTA/4/2007. PTA/6/2006 was imposed on 24 May 2006 and revoked on 11 September 2006. On the same date as that revocation, PTA/33/2006 was imposed on him. Following the hearing under section 3(10) of the Act, on 30 March 2007 Ouseley J quashed PTA/33/2006 on the ground that, as he found, the restrictions it imposed cumulatively amounted to a deprivation of liberty within the meaning of article 5(1) of the European Convention on Human Rights. His judgment is at [2007] EWHC 651 (Admin). In anticipation of the judgment of Ouseley J, control order PTA/4/2007 was made on 29 March 2007 and served the following day.[3]In his judgment, [2007] EWHC 651 (Admin), Ouseley J also held:(a) there were reasonable grounds for suspecting that AF was or had been involved in terrorism-related activity;(b) that he was satisfied that a Control Order was necessary in view of the potential harm to the public if AF engaged in terrorist related activity, and in view of his willingness and ability to do so;(c) that if he had concluded that the control order was no more than a restriction of movement, he would have regarded the general run of restrictions as necessary, but would have examined the detail and balance; and(d) that he did not regard the process under the PTA as one in which AF had been without a substantial and sufficient measure of procedural protection.[4]Ouseley J’s decision was appealed direct to the House of Lords under the “leap-frog” procedure under section 12(3)(b) of the Administration of Justice Act 1969. The House gave judgment on 31 October 2007 in AF’s and other cases, reported as [2007] UKHL 45, [2007] UKHL 46 and [2007] UKHL 47. The House reversed Ouseley J’s decision on the issue whether control order PTA/33/2006 deprived AF of his liberty, and remitted his case to the Administrative Court for it to reconsider in accordance with the guidance contained in the opinions of the majority whether AF had been provided with a sufficient measure of procedural protection so as to comply with his rights under Article 6 of the European Convention on Human Rights.[5]The procedural situation before me is unusual, if not unique. The hearing was formally listed as a hearing for directions for the substantive hearing required under section 3 of the PTA in relation to PTA/4/2007. However, as a result of the decision of the House of Lords, PTA/33/2006 was retrospectively provisionally revived until its expiry on 10 September 2007, and the issue remitted by the House of Lords must be decided. It was therefore appropriate to give directions for the determination of that issue also. The revival of PTA/33/2006 is provisional because if it is decided, in the light of their Lordships’ opinions, that AF has not received a sufficient measure of procedural protection, or if the evidence before the Court applying the procedure prescribed by them does not justify the findings sought by the Home Secretary, it will again be quashed.

The contentions of the parties

[6]Mr Otty QC, for AF, submitted that Ouseley J should be recused from hearing the section 3(10) proceedings in relation to PTA/4/2007. While not suggesting that the judge was in any way personally biased or prejudiced, Mr Otty contended that he is disqualified because a fair-minded and informed observer might entertain a reasonable apprehension of bias by reason of his prejudgment. This risk, it was submitted, is particularly acute in a context such as the present where the Court is effectively precluded from stating its full reasons for particular conclusions in an open judgment. The Respondent is therefore unable to assess the fairness of the judge’s consideration and findings on the closed material before him. The Court will, in PTA/4/2007, be considering the same central issues of reasonable suspicion and necessity as were in issue in PTA/33/2006. In doing so it will be considering the evidence of at least one of the witnesses whose credibility Ouseley J has already broadly endorsed. The Court will also, presumably, be considering very similar or identical written evidence. By virtue of the terms of the 2005 Act neither AF nor the “reasonable observer” is able to understand any aspect of the Court’s reasoning on either reasonable suspicion or necessity in PTA/33/2006. The liberty of AF will be substantially affected by the result of these proceedings; they are akin to criminal proceedings; those facts, and the particular importance of decisions in this area commanding public confidence, make it particularly important that there should be no appearance of pre-judgment bias. The opinions in the House of Lords do not indicate that the remitted issue should be determined by a judge other than Ouseley J, but they heard no argument on the present issue.[7]Mr Eicke, for the Home Secretary, submitted that PTA/33/2006 continues in force and should be treated as modified by PTA/4/2007 and subsequent modifications to that order. In addition, citing and relying on the guidance given by the IAT in its starred determination in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1, as approved by the Court of Appeal in LD (Algeria) v Secretary of State for the Home Department [2004] EWCA Civ 804 (in relation to cases where, as here, the parties are identical), and AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 1040, he submitted 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, and therefore no question of unfair or illegitimate pre-judgment arises. The proceedings have been held by the House of Lords to be civil; these are public law proceedings to which the principle applied in the cases he cited are applicable. Mr Eicke pointed out the practical difficulties that could arise whenever there was a remission by the Court of Appeal or the House of Lords, or whenever a new control order is imposed, for example when a control order is revoked or not renewed because the Secretary of State considers it is no longer required, but then new information leads her to decide that a new control order is required.[8]Mr Johnson, the Special Advocate, quite properly made no submissions on the issue of recusal.[9]In reply, Mr Otty submitted that the terms of the PTA require the Court to give fresh consideration of the issues arising in connection with PTA/4/2007 unaffected by the findings of Ouseley J in PTA/33/2006. He distinguished the authorities cited by Mr Eicke as relating to different legislative provisions and different procedures, and as explicable by the volume of immigration cases with which the IAT and the Courts have to deal. Lastly, he submitted that the appropriate judge to determine whether he was disqualified was, at least in the first place, Ouseley J himself.

Discussion

[10]In my judgment, the question of recusal must be considered with the issue as to the status of the findings made by a judge on a hearing under section 3(10). If those findings, in so far as they are not overturned on appeal, are binding on the respondent, or at least the “starting point” for the consideration of the issues in further proceedings, there is no basis for recusal on the basis of objective prejudgment, since a different judge would equally be bound by the earlier findings.[11]PTA/4/2007 cannot be considered as a modification of PTA/33/2006. It is a different control order. Section 7 of the Act contains provision for modifying control orders, but they have not been implemented, and could not be implemented, in order to convert PTA/33/2006 into PTA/4/2007.[12]I have no doubt that Parliament did not envisage that a respondent might be simultaneously subject to two control orders, as in theory at least AF was until the expiry of PTA/33/2006, but the reversal of Ouseley J’s decision has that provisional effect. I say provisional, because the Court may decide, applying the guidance of the House of Lords, that AF was not afforded a substantial and sufficient measure of procedural protection, or that evidence that was accepted as closed should be disclosed to him, or that closed evidence that was before Ouseley J can no longer be relied upon by the Secretary of State. Thus, following the decisions of the House of Lords, there may be different open and closed evidence before the Court when it considers the remitted issue, and for this reason too there may be a different decision on the issue remitted by it than that reached by Ouseley J.[13]It follows that the hearing in relation to both PTA/4/2007 and PTA/33/2006 will be pursuant to section 3(10) of the Act, which is as follows:
“(10) On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (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.”
[14]The content of the cross-reference in paragraph (a) to section 2(1) can be seen from that sub-section: (1) The Secretary of State may make a control order against an individual if he— (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. (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.[15]As mentioned above, the wording of section 3(10) is contrasted by Mr Otty with that of section 10(4): (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. (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.[16]It can be seen that section 10(4)(a) does not require the Court to consider the lawfulness of the control order, but only the lawfulness of the renewal or refusal to revoke it. It assumes that until the renewal or refusal it was lawful, and that it was necessary for the order to be in force, and the Court is required to address only the lawfulness of its continuation. It may be assumed that Parliament envisaged that, at least in the case of the renewal on an order, it had been upheld on the hearing under section 3(10). In contrast, no such assumption is made, or in my judgment may be made, for the purposes of section 3(10): the Court must consider whether the control order was necessary (applying judicial review principles) when made and until a decision is made under that subsection.[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. As Mr Eicke pointed out, the House of Lords has held that these proceedings are not criminal proceedings. I accept his submission that they are public law proceedings, although of course subject to special procedural provisions and considerations arising from their nature and effect. However, it is also the case that previous decisions in criminal proceedings may have the force of estoppel: see Halsbury’s Laws, volume 11 at paragraph 1498.[18]Mr Otty submitted that these authorities are to be explained by the volume of asylum and immigration cases, which makes it necessary to avoid or to minimise the relitigation of issues. I do not think that those cases are to be so explained. They were decided on the basis of principle, not of expedience. Mr Otty also drew attention to the seriousness and importance of the issues in control order cases, which seriously affect the liberty of the individual. But asylum cases raise issues of equal or greater importance for the individual, who if returned to a country where he is liable to be persecuted may suffer torture, injury or even death.[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.[21]However, I do not consider on the material before me that Ouseley J is disqualified by prejudgment from deciding the issues in PTA/4/2007 or the remitted issue on PTA/33/2006. If the House of Lords considered that he should be recused in relation to PTA/33/2006, they would have said so and the order of their Lordships would so provide. It does not. Judges are frequently called upon to exclude from their consideration evidence that they have seen or heard de bene esse. It is true that AF has been unable to assess the fairness of Ouseley J’s consideration and judgment of the closed evidence before him, since his judgment is itself closed, but I see no reason why he, or the hypothetical observer, should assume that he was other than fair and impartial. To the contrary, I think that in the absence of evidence to the contrary, they should assume that he was fair. I see no reason why it should be thought by the hypothetical objective informed observer that Ouseley J might not decide the issues on the future section 3(10) hearings fairly on the evidence before him.[22]However, while I see no objective reason for the recusal of Ouseley J., if he were available to hear these cases, when an issue of prejudgment or bias is raised, the judge must himself decide subjectively whether he is able to determine the issues before him unaffected by prejudgment or bias: see Berg v. IML London Ltd [2002] 1 WLR 3271. Ouseley J has not considered that question.[23]Secondly, as pointed out by the Divisional Court in A and others v Secretary of State for the Home Department [2005] EWHC 1669 (Admin), questions of recusal are fact-specific: as Kennedy LJ said:
“… 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?”
[24]At the present stage of these cases, it is not known what the differences will be between the evidence before Ouseley J and that which will be before the court on the substantive hearings. In these circumstances, I do not think it would be sensible to reach a final decision as to the recusal or otherwise of Ouseley J, were he otherwise available for those hearings. All I can say at the present stage of these proceedings is that in principle he would not be disqualified by prejudgment.

Conclusion

[25]It follows that I answer the two issues identified in paragraph 1 above as follows:(a) A judge who decides issues arising on a hearing under section 3(10) of the Act adversely 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.(b) 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.

Cited in 3 later judgments