The Home Secretary must revoke a control order imposed on a terror suspect, the Court of Appeal ruled today
hree judges agreed the order on BM, a 38-year-old British national born in Sheffield, was so flawed that it could not stand.
Lord Justice Sedley, Lord Justice Thomas and Lord Justice Hooper gave Theresa May 48 hours to obey the ruling - and to obtain a new order "if she considers it necessary to do so".
The court stressed that, even though the existing order was flawed, the Home Secretary had "legitimate interests" that needed to be protected in the interests of national security.
A prosecution being brought against BM for contravening the current order must be discontinued now that it has been found to be flawed, said the judges.
The Home Secretary has power to make control orders in cases where persons are suspected of involvement in terrorism but have never been put on trial, often it is said because of intelligence service fears that a trial could compromise information sources in the fight against terror.
The orders restrict an individual's movements and liberty and are the subject of long-running controversy.
The appeal judges were told there was security service evidence that BM, who cannot be named for legal reasons, led a group in Ilford, east London, involved in promoting terrorism that involved two brothers, referred to as A and B.
Although never prosecuted, it is alleged in intelligence reports that he became active in about 2001 and travelled to Pakistan on a number of occasions on trips at least in part connected with terrorist activity.
He also expressed an interest in becoming involved in fighting in Afghanistan.
A Home Office spokesman said: "We are disappointed with the court's decision to allow this appeal and we are now considering the judgment carefully.
"The court made plain that its decision was based solely on open material even though we argued that the control order was necessary on the basis of the entirety of the case, both open and closed."
Lord Justice Thomas said BM, a divorced father of five, and his brothers were designated in August 2007 under the Terrorism (United Nations Measures) Order 2006.
The designation subjected them to substantial controls over their finances on the grounds that they were suspected of involvement in terrorism.
The key question for the appeal court was whether a control order was necessary, in addition to designation, to safeguard the public, said the judge.
In May 2009 the then home secretary made a control order which was subsequently challenged in the High Court.
The hearing was delayed while the home secretary attempted to move BM away from the London area and live in Leicester.
The attempt failed. A further modification required him to move to Bristol.
His control order was upheld as valid by High Court judge Mr Justice Saunders in February last year.
The judge concluded there were reasonable grounds for suspecting BM remained a threat, given his long-standing involvement in terrorism-related activity.
The judge referred to security service evidence that he had undergone explosives training in the Kashmir area and had been in contact in Pakistan with a senior al Qaida leader.
It was also alleged he had been involved in the transfer of funds to Pakistan for use in terrorist purposes and providing equipment to facilitate terrorist activity in Pakistan.
The single judge said: "He is an organiser. He has shown that he has the means to contact senior al Qaida figures and he has had explosives training.
"I have no doubt that, acting as I must, on the matters where reasonable suspicion has been established, that control order is necessary to protect the public."
Allowing BM's appeal against the judge's decision, Lord Justice Thomas said insufficient evidence had been given in "open court" that BM continued to pose a threat after he was designated under the Terrorism Order in 2007.
Lord Justice Thomas said the fresh matters mainly relied on in open court by the Home Secretary related to BM's brothers and security service information that they had disappeared in breach of the controls imposed on them.
The assessment of the security services was that BM was likely to be aware of their whereabouts and activities.
The judge ruled that was "too vague and too speculative and set out an insufficiently firm basis for concluding that a control order was necessary, in addition to designation under the Terrorism Order".
The judge said he reached that conclusion in the full knowledge that there might be "closed material" - secret evidence - which supported the Home Secretary's case.
There had been a judgment involving the closed material at the High Court, but the appeal had been based only on what had been submitted in open court.
Lord Justice Thomas said: "I have concluded that, on the open evidence before this court, the control order could not be justified as necessary at the time it was made."
The High Court ruling had to be set aside because the single judge had fallen into error "in not considering whether the decision of the Home Secretary was flawed at the time the control order was made".
The judge rejected the Home Secretary's call for the case to be sent back to the High Court for it now to consider whether there was closed material that justified the existing order.
He said that would be "unjust" as it was now 22 months since the control order was first made, and if the case were remitted there would be "significant further delay".
The judge ruled: "If the Home Secretary considers the conditions for the making of a control order are still satisfied, then she can take steps immediately to impose another control order, and the interests of the public can be protected in the meantime."
It was essential that control order cases were dealt with within "a vastly shorter timescale" than BM's, said the judge.
"It is simply not right that the proceedings to determine the validity of this control order with its significant impact on the civil liberties of BM have lasted 22 months."
The judge also called for steps to be taken in future similar cases involving open and closed evidence to ensure directions were obtained in advance on the best way to proceed.
James Welch, legal director for human rights campaigners Liberty, said: "Yet again the courts deal another blow to this fundamentally flawed regime.
"Unsafe and unfair, control orders ruin innocent lives whilst allowing the guilty to disappear without a trace.
"Their proposed replacement, Terrorism Prevention and Investigation Measures (TPIMs), won't be any better.
"If someone is truly dangerous they should be investigated, tried and convicted within the criminal justice system."Reuse content