Secretary of State for the Home Department v CC and CF

Factual and Procedural Background

This opinion concerns five sets of proceedings involving statutory reviews and appeals related to control orders and terrorism prevention and investigation measures (TPIMs) imposed by the Secretary of State for the Home Department ("SSHD") on two individuals, referred to as CC and CF. The proceedings include statutory reviews of control orders made under the Prevention of Terrorism Act 2005 ("PTA") and TPIM notices under the Terrorism Prevention and Investigation Measures Act 2011 ("TPIM Act"), as well as an appeal by CC against the refusal to vary certain measures specified in his TPIM notice.

The SSHD imposed control orders on CC and CF in early 2011, followed by TPIM notices in 2011 and 2012. The court is tasked with reviewing the decisions of the SSHD to impose these orders and notices, including whether the statutory conditions were met and whether the impositions remain necessary and proportionate. Both CC and CF challenge the SSHD’s decisions on grounds including lack of reasonable suspicion/belief of terrorism-related activity, necessity, abuse of process related to their detention and deportation from Somaliland, and public law grounds concerning the SSHD’s consideration of relevant matters.

Legal Issues Presented

1. Whether the SSHD had reasonable grounds for suspecting or reasonably believed that CC and CF were involved in terrorism-related activity as required under the PTA and TPIM Act.
2. Whether the imposition of control orders and TPIM notices on CC and CF was necessary and proportionate for the purpose of protecting the public from a risk of terrorism.
3. Whether the court should quash the control orders and TPIM notices on grounds of abuse of process arising from the circumstances of the Respondents' detention and deportation from Somaliland.
4. Whether the SSHD erred in law or failed to take into account relevant considerations, including allegations of mistreatment and illegality related to Somaliland, in imposing the control orders and TPIMs.
5. The appropriate burden and standard of proof on abuse of process applications in the context of the special procedures governing these proceedings.
6. The status of Somaliland and the legal effect of the SSHD’s dealings with its authorities on the lawfulness of the control orders and TPIMs.
7. Whether there was material non-disclosure to the court on applications for permission to impose control orders and TPIMs, and the appropriate remedy if so.

Arguments of the Parties

Appellants' Arguments (CC and CF)

• They challenge the SSHD’s decisions on the basis that there were no reasonable grounds for suspecting or reasonably believing their involvement in terrorism-related activity.
• They argue that the SSHD failed to adequately consider the alleged mistreatment, unlawful detention, and deportation from Somaliland, which they assert renders the proceedings an abuse of process.
• They submit that the SSHD’s decisions were flawed by failure to take into account relevant considerations, including the legality of their detention and deportation, and the effect of such treatment on necessity and proportionality assessments.
• They contend that the burden of proof on abuse of process should be modified due to the special procedures limiting their access to evidence.
• They assert that the court should not recognize the laws or acts of Somaliland as lawful, contending that the SSHD’s dealings with Somaliland authorities were unlawful.
• They argue that material non-disclosure to the court on ex parte applications for control orders and TPIMs warrants quashing the orders.

Respondent's Arguments (Secretary of State for the Home Department)

• The SSHD maintains that there were reasonable grounds for suspecting or reasonably believing that CC and CF were involved in terrorism-related activity based on substantial evidence, excluding inadmissible interviews.
• The SSHD submits that the imposition of control orders and TPIMs was necessary and proportionate to protect the public from terrorism risks.
• It is argued that the alleged mistreatment and unlawful detention in Somaliland do not amount to abuse of process sufficient to quash the orders, and that the court’s threshold for abuse of process is very high.
• The SSHD contends that the Somaliland administration, while not recognized as a sovereign state, exercises effective de facto control and government functions, and that dealings with it are lawful under domestic law.
• The SSHD asserts that the allegations related to Somaliland were disclosed to the court in closed proceedings and that the failure to disclose fully on ex parte applications was not deliberate but based on a genuine but mistaken view of relevance.
• The SSHD submits that even if the Somaliland matters were considered, the decisions to impose the orders would have been the same, and that there was no abuse of process or error in law.
• The SSHD argues that the burden of proof on abuse of process remains with the Respondents and should be applied in the ordinary way despite procedural limitations.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework governing control orders under the PTA and TPIM notices under the TPIM Act, including the definitions of terrorism, terrorism-related activity, and the conditions for imposing such orders. It emphasized that the court’s role on review is to determine whether the SSHD’s decisions were flawed regarding reasonable suspicion or belief and necessity of the measures.

Applying the principles from MB and related authorities, the court found that the SSHD had reasonable grounds for suspecting or reasonably believed that both CC and CF were involved in terrorism-related activity, based on extensive evidence of their involvement with extremist networks, travel for terrorist training, facilitation of travel for others, fundraising, and attack planning.

The court rejected the argument that the higher standard of reasonable belief under the TPIM Act required proof of underlying facts on the balance of probabilities, relying on established case law that reasonable belief is a state of mind and does not require proof of each fact to that standard.

Regarding necessity, the court accepted that the SSHD was entitled to conclude that the control orders and TPIMs were necessary and proportionate to protect the public from terrorism risks, giving appropriate deference to the expertise of the Security Service and SSHD, but maintaining vigilance to ensure necessity and proportionality.

On abuse of process, the court carefully considered the allegations concerning the Respondents’ detention and deportation from Somaliland, including the involvement of UK authorities. It applied the high threshold established in Bennett, Maxwell, and related cases, concluding that although the Respondents’ detention and deportation may have involved illegality under Somaliland law, the threshold for abuse of process to quash the orders was not met. The court emphasized the importance of balancing the public interest in prosecuting serious terrorism risks with maintaining the integrity of the justice system.

The court examined the status of Somaliland, accepting the Foreign and Commonwealth Office’s executive statement that Somaliland is not a sovereign state under international law but exercises effective de facto control and government functions. The court held that dealings between the UK government and Somaliland authorities are lawful under domestic law and that the court can take cognisance of Somaliland’s legislative and judicial acts. The court rejected submissions that it was precluded from considering Somaliland law or that dealings with Somaliland rendered the proceedings abusive.

In relation to public law challenges, the court found that the SSHD’s approach to disregarding the Somaliland allegations in making control order and TPIM decisions was not unlawful or an error of law. Even if the SSHD had considered these matters, the court was satisfied that the SSHD would have exercised discretion in the same way, given the strength of the national security case.

Regarding disclosure, the court acknowledged a duty of full and frank disclosure on ex parte applications for control orders and TPIMs, including disclosure of material relevant to abuse of process claims. It found that disclosure made to the court on applications to impose TPIMs was full, but disclosure on applications for control orders was deficient. However, the court exercised discretion not to quash the orders on this ground, considering the public interest in protecting against terrorism, the constitutional safeguard of judicial permission, the absence of deliberate non-disclosure, and the strength of the evidence justifying the orders.

Holding and Implications

The court DISMISSED the appeals of CC and CF against the control orders and TPIM notices imposed by the Secretary of State for the Home Department. It held that the SSHD had reasonable grounds for suspecting or reasonably believing their involvement in terrorism-related activity and that the impositions were necessary and proportionate to protect the public from terrorism risks.

The court further held that the allegations of abuse of process related to the Respondents’ detention and deportation from Somaliland did not meet the high threshold required to quash the orders. It recognized the effective de facto authority of Somaliland’s administration and found no unlawfulness in the SSHD’s dealings with it under domestic law.

Although there was some deficiency in disclosure to the court on ex parte applications for control orders, the court exercised its discretion not to quash the orders, balancing the public interest in national security and the strength of the evidence against the Respondents.

No new legal precedent was established by this decision; rather, it reaffirmed existing principles concerning the court’s review of control orders and TPIMs, the high threshold for abuse of process, the deference due to the SSHD in national security matters, and the approach to disclosure in ex parte applications.