HUMAN RIGHTS — Right to liberty — Suspected terrorist — Secretary of State issuing non-derogating control order — House of Lords reversing High Court judge’s quashing of control order and remitting proceedings back to High Court — Whether judge should be recused from hearing proceedings — Prevention of Terrorism Act 2005, s 3(10)

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

QBD: Stanley Burnton J: 30 November 2007

A judge who decided issues arising on a hearing under s 3(10) of the Prevention of Terrorism Act 2005 adversely to either party was not for that reason disqualified by prejudgment from adjudicating in subsequent proceedings under the 2005 Act to which the respondent was a party.

Stanley Burnton J so held in the Queen’s Bench Division when giving directions for the substantive hearing required under s 3(10) of the 2005 Act.

The respondent, AF, had been subject to three non-derogating control orders. Following a hearing under s 3(10) of the 2005 Act, the second of those control orders was quashed on the ground that the restrictions it imposed cumulatively amounted to a deprivation of liberty within the meaning of art 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the third was served. The decision was appealed direct to the House of Lords which reversed it and remitted the case to the Administrative Court for it to reconsider in accordance with the guidance contained in the opinions of the majority. The present hearing was formally listed as a hearing for directions for the substantive hearing required under s 3 of the 2005 Act in relation to the third control order. However, as a result of the decision of the House of Lords [2007] 3 WLR 681, the second control order was retrospectively provisionally revived until its expiry and the issue remitted by the House of Lords needed to be decided. It was therefore appropriate to give directions for the determination of that issue also.
STANLEY BURNTON J said that the contrast of wording between s 3(1) and s 10(4) of the 2005 Act, and the wording of s 3(10) itself, did 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. On a hearing under s 3(10), where there had been a previous hearing under the section in relation to an earlier control order, the starting point was 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 was no objective reason why the judge who decided the issues in the earlier hearing should be disqualified by prejudgment from deciding the issues on the second hearing.

Appearances: Tim Eicke and Kate Grange (Treasury Solicitor) for the Home Secretary; Tim Otty QC and Zubair Ahmad (Middleweeks, Manchester) for AF; Jeremy Johnson as special advocate (Special Advocates Support Office).

Reported by: Ben Urdang, barrister