(back to preceding text)

    26.  As to the second issue, a control order must always be seen as 'second best'. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course. That is why section 8 was inserted in the 2005 Act. But there are practical difficulties: the Secretary of State does not control the prosecution process. The police investigate and the Crown Prosecution Service decide whether or not to prosecute. There are very good reasons for this division of responsibility: it injects an important element of independence and objectivity into the decision to prosecute. But it makes the task of the Secretary of State, in considering the alternative of prosecution, all the more difficult. She does not have the power to choose between the two.

    27.  It is noteworthy that section 8 does not impose a duty upon the Secretary of State to consider whether there is a reasonable prospect of a successful prosecution; still less does it require her to have formed the view that there is no such prospect. All it does is require her to consult. I agree, for the reasons given by my noble and learned friends, that compliance with the duty to make inquiries of the police under section 8(2) is not a condition precedent to making a control order; nor is the receipt of a negative reply to those inquiries. But both are highly relevant factors to be taken into account by the Secretary of State when considering whether a control order is 'necessary'. The court, in considering whether the Secretary of State's decision was flawed, will be reluctant to confirm that decision if the requirements of section 8 have not been complied with or, indeed, if inquiries reveal that there is a reasonable prospect of a successful prosecution.

    28.  Nor does section 8 impose an express duty upon the Secretary of State to keep the matter under review. But, as the Court of Appeal held in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2007] QB 415, para 44, it is implicit in the Act that the Secretary of State must keep the decision to impose a control order under review; and, as the Court of Appeal held in this case, that duty involves her, not only in consulting the police from time to time, but also in sharing such information as is available to her, but may not have reached the police, which is relevant to the prospects of a successful prosecution. These are all matters which the court will wish to consider in deciding whether the decision to make or maintain the control order was flawed.

    29.  On the facts of this case, however, I agree that the order should not have been quashed on this ground; still less on the ground that it constituted a deprivation of liberty.

LORD CARSWELL

My Lords,

    30.  The issues argued in this appeal were, first, whether the effect of the control order was to deprive the appellant E of his liberty within the meaning of article 5 of the European Convention on Human Rights and, secondly, whether the Secretary of State was in breach of his statutory duty in relation to consideration of criminal prosecution.

    31.  On the first issue, I held in Secretary of State for the Home Department v JJ and others [2007] UKHL 45 that the control orders relating to the appellants in that appeal did not have the effect of depriving the appellants of their liberty. The reasons which I set out in my opinion given in that appeal, to which I would refer, apply also in the present case, taking proper account of E's circumstances. I would accordingly hold that E has not been deprived of his liberty.

    32.  On the second issue, the statutory duty of the Secretary of State under section 8(2) of the Prevention of Terrorism Act 2005 is, as my noble and learned friend Lord Bingham of Cornhill has observed in paragraph 15 of his opinion, one to be taken seriously. Nevertheless, as Beatson J and the Court of Appeal have correctly held, it does not constitute a condition precedent to the making of a non-derogating control order. For the reasons given by Lord Bingham in paragraphs 15 and 16 of his opinion, I also consider that the absence of a realistic prospect of prosecution is not a condition precedent to the making of such an order.

    33.  In my opinion the judge and the Court of Appeal were plainly right in their conclusion that it is the duty of the Secretary of State to keep the decision to impose a control order under review. I agree with the statement in paragraph 97 of the Court of Appeal's judgment given by Pill LJ:

"Once it is accepted that there is a continuing duty to review pursuant to MB's case, it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful."

    The Court of Appeal found in relation to the fulfilment of that duty (para 97):

"In our judgment, Beatson J was right to find that there had been a breach by the Secretary of State of his MB duty to keep the question of possible prosecution under review, not in the sense that the decision to prosecute was one for him (for clearly it was not), but in the sense that it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extends to a duty to take reasonable steps to ensure that the prosecuting authorities are keeping the prospects of prosecution under review. The duty does not, however, extend to the Secretary of State becoming the prosecuting authority. The decision whether to prosecute lies elsewhere."

    In paragraph 99 the court said:

"In our view, the correct analysis in the present case is that the breach arose from the omission of the Secretary of State himself to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration. That failure rendered nugatory the negative responses of the police at meetings of the CORG when asked about prosecution."

    Again, I agree.

    34.  The Court of Appeal went on to hold that not every breach of an obligation renders a subsequent decision flawed. It was of the opinion that the Belgian judgments could not have given rise to a prosecution at any time material to this case. Like Lord Bingham, I do not think that its reasoning can be faulted. It was therefore correct to hold that the control order should not have been quashed.

    35.  I accordingly would hold that the appellant has not made out either of the grounds on which he has based his case before the House and dismiss the appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    36.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and like him would dismiss the appeal on both points. On the first point-as to whether the control order involved a deprivation of E's liberty-I would do so for the reasons I have given in my opinion in JJ's appeal. On the second point I agree with all that Lord Bingham says and cannot usefully add to it.