BH v Secretary of State for the Home Department [2009] EWHC 2938 (Admin)

[2009] EWHC 2938 (Admin)Case No PTA/46/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/11/2009
Before
MR JUSTICE MITTING
Between
BHClaimant/SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant/
MISS STEPHANIE HARRISON(instructed by BIRNBERG PEIRCE & PARTNERS) for Claimant/AppellantMR ROBIN TAM QC & MR RUPERT JONES(instructed by THE TREASURY SOLICITOR) for Defendant/RespondentMR MOHAMMED KHAMISA QC(instructed by SPECIAL ADVOCATES SUPPORT OFFICE) as Special AdvocateHearing Hearing date: 12th November 2009Judgment
[1]BH is the subject of a non-derogating control order served on him on 1st May 2009. It imposes upon him a twelve hour curfew and a geographic boundary limited to Ilford and part of Barking. His solicitors, Birnberg Peirce & Partners (BPP) have offices in Camden. If he is to visit those offices, for the purpose of obtaining legal advice, for example about the review of his control order which I have conducted under section 3(10) of the Prevention of Terrorism Act 2005, he requires a modification of his curfew and boundary. By a letter dated 15th September 2009, BPP requested that his curfew be modified to permit his attendance at a legal conference on 17th September between 10am and 1pm at their offices. The control order contact officer, on behalf of the Secretary of State, replied on 16th September 2009 in what had become, by then, familiar terms. The letter signified agreement to the variation to permit the visit, together with relaxation of the requirement to report at a police station, but it did so on terms:
“However, the Secretary of State is of the view that it is necessary for the purposes of preventing or restricting your client’s involvement in terrorism-related activity that any such variation to your client’s boundary and police station reporting obligations would be subject to a number of conditions outlined below…. 1. BH’s curfew will end when he is picked up from his residence by the police at 9am; 2. BH’s curfew will begin again at 2pm or if after 2pm, when he is returned to his residence by the police after the end of the legal conference; 3. BH must not leave his residence again until the end of his curfew at 5pm; 4. BH must return to his residence for the start of his curfew at midnight; 5. BH must be accompanied by a police officer(s) at all times during his travel from his residence to Birnberg Peirce & Partners and from Birnberg Peirce & Partners to his residence. For the avoidance of doubt, this will be from the time the police escort BH from his residence to Birnberg Peirce & Partners (see condition 1 above) to the time the police return him to his residence at the end of the legal conference: 6. Once at Birnberg Peirce & Partners, BH must remain there at all times until the conclusion of the legal conference at 1pm, including any breaks in the conference: 7. BH must allow himself to be searched before leaving his residence and again before leaving Birnberg Peirce & Partners (for the avoidance of doubt your client may be asked to remove his outer coat/jacket/hat/gloves and footwear. The police officer may search the inner thigh, place his hands inside the pockets of the outer clothing, or feel around the inside of the collars, belt, socks and shoes if this is reasonably necessary); and 8. Your client must inform the Home Office immediately and prior to the scheduled appointment if he is not going to attend. We require confirmation of your client’s agreement in writing to these conditions prior to the modification being granted. We will then proceed to vary your client’s control order. Until such a time as the control order is formally varied we would remind you that your client remains subject to his existing control order obligations.”
In cases in which a controlled person signifies his written agreement to such conditions, it was and is Home Office practice to send a further letter, setting out the variation granted in identical or substantially identical terms and to conclude, “For the avoidance of doubt, this letter is deemed notice to your client of the variation of his control order”. That did not occur in this case, because by a fax letter of 16th September, BPP objected to condition 7, the personal search condition. In response, the control order contact officer declined to remove the personal search condition, invited BPP to provide written confirmation of BH’s agreement to all of the conditions and reiterated that until the control order was formally varied, he remained subject to its existing conditions. BPP reiterated their refusal. On 17th September 2009, the control order contact officer replied that “the modification cannot be agreed” and pointed out that the existing obligations did not prohibit a visit to BH by his legal representatives within his boundary.[2]BH challenges that decision. To avoid procedural error, he has done so by a claim for judicial review and by a modification appeal under section 10(3) of the 2005 Act. An interesting debate could be held about the availability or otherwise of judicial review, given the existence of the statutory right of appeal. It is not necessary for me to resolve that issue, save to observe that, in my view, the statutory appeal gives me adequate powers to determine the issue and, in so doing, to give guidance to the Secretary of State and to controlled persons for the future. For that reason, the statutory appeal is an adequate remedy and judicial review, in this case, is not necessary. I therefore refuse permission to apply for it.[3]As will be apparent from the short history which I have stated, the issue is strictly now academic, because it was ultimately (after two applications to the Court) resolved pragmatically: but both sides agree that the issue should be determined and the facts provide a convenient, and frequently repeated, template.[4]The relevant parts of section 1 of the 2005 Act provide:
“(3) The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity. (4) Those obligations may include, in particular… (g) a prohibition or restriction on his movements to, from or within the United Kingdom… (5) Power by or under a control order to prohibit or restrict the controlled person’s movements includes, in particular power to impose a requirement on him to remain at or within a particular place or area (whether for a particular period or at particular times or generally)”
. Section 1 contains no express provision authorising a personal search. SSHD v GG [2009] EWCA Civ 786 established that the general language of section 1(3) “is insufficient to authorise the inclusion in a control order of a general requirement to submit to searches of the person whether on demand of anyone authorised by the Home Secretary or only of a police officer.” Miss Harrison, for BH, submits that this principle applies to personal searches required as condition of variation of the curfew and boundary to permit a controlled person to attend a legal or medical appointment or a court hearing, outside it. Mr Tam QC submits that the “condition” required by the control order contact officer did not amount to an obligation to submit to a personal search, but was merely the condition upon which the curfew and boundary obligations would be relaxed if he agreed to it. The distinction matters, because, if the condition amounts to an “obligation imposed on him by a control order” he may be prosecuted for its breach under section 9(1).[5]Section 7(2)(c) permits the Secretary of State “with the consent of the controlled person (to) modify the obligations imposed by such an order”. I have no doubt that when the Secretary of State has required a controlled person to submit to a personal search as a condition of the relaxation of his curfew and boundary, he has done so under that power – i.e. he has varied the “obligations”, so that if they are breached, prosecution may follow. That is, unmistakeably, what the concluding words of the second letter customarily sent when a controlled person consents to a variation mean:
“For the avoidance of doubt, this letter is deemed notice to your client of the variation of his control order”
. For all its ingenuity, Mr Tam’s submission that the personal search “condition” has been something different from, and less than, an “obligation” is wrong. He accepts that if it is an obligation, it is not permitted by section 1, any more than an obligation to submit to a personal search not contingent upon variations of the curfew and boundary.[6]The Secretary of State is undoubtedly entitled to restrict the movement of a controlled person by requiring that movement outside his boundary is made under police escort. His purpose in imposing the personal search obligation is to permit that to occur. The police, however, normally require a controlled person to consent to a personal search before beginning each leg of an escorted journey. In a helpful letter dated 21st October 2009, Detective Sergeant Conway of the Metropolitan Police Counter-Terrorism Command explains why: it is for the protection of themselves, the controlled person and members of the public from the risk of harm and to reduce the risk that violence may be used to effect escape. There is nothing unreasonable about this stance but, as Sergeant Conway acknowledges, there is no statutory power, such as section 32 of the Police and Criminal Evidence Act 1984, to conduct a personal search without the controlled person’s consent. Hence, the need for an obligation imposed by the control order.[7]Unless an obligation can lawfully be imposed, I do not see how Mr Tam’s suggestion of a non-statutory condition can be made to be workable. He suggested that consent once given to an escorted journey could not be revoked, at least after it had begun. The police could then, he submits, rely on the consent to undertake a search against the will of the controlled person on, say, his return from hospital or his solicitor’s offices. This proposition is deeply problematic. It cannot have been intended by Parliament: section 1 is a comprehensive code for the imposition of obligations enforced by criminal sanctions leaving no room for other conditions, not similarly enforceable. Miss Harrison submits that a controlled person cannot give effective consent to such a condition. Although I do not accept that proposition (the circumstances are far removed from those considered by Lord Neuberger in paragraph 43 of R(L)(FC) v Commissioner of Police of the Metropolis [2009] UKSC3) I do not see how such a condition could lawfully be enforced at the start of the return journey.[8]The Secretary of State and the controlled person accordingly, face a stark choice: either the controlled person gives, and the Secretary of State accepts, a non-statutory condition of doubtful enforceability or the Secretary of State must decide whether or not to vary the curfew and boundary obligations to permit a visit to lawyers or doctors without the requirement for a personal search. If the police, and other agencies, such as UKBA will not escort without a personal search at the start of each leg of an escorted journey, the choice is between unescorted visits or no visits at all. In the case of visits to lawyers, the choice will not deprive a controlled person of access to legal advice: however inconvenient it may be, they can travel to visit him. But in the case of urgently needed hospital visits and attendance at court hearings at which the presence of the controlled person is reasonably required in his own interests, the Secretary of State will not be able to insist upon close escort by police officers or others who will not undertake the task without first carrying out a personal search.[9]Because the Secretary of State did not in fact impose a modification containing an unauthorised obligation and because the decision to refuse to relax the curfew and boundary obligations for the purpose of visiting BPP’s offices unless BH was escorted by police officers was lawful and not flawed, this appeal, strictly, fails and must be dismissed.