[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CB & Anor v Secretary of State for the Home Department [2012] EWCA Civ 418 (03 April 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/418.html Cite as: [2012] WLR(D) 112, [2012] 1 WLR 3259, [2012] EWCA Civ 418

[New search] [Printable RTF version] [Buy ICLR report: [2012] 1 WLR 3259] [View ICLR summary: [2012] WLR(D) 112] [Help]

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE SILBER
[2011] EWHC 1990 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/04/2012

Lord Justice Stanley Burnton :

Introduction

1. This appeal raises the question whether the Court has power to stay proceedings under section 3(10) of the Prevention of Terrorism Act 2005 ("the PTA") in circumstances in which the control order to which it relates has been revoked and the Court considers that the resources involved do not justify the continuation of those proceedings. It is an appeal against the order made by Silber J on 25 July 2011 by which he stayed the control order proceedings against the appellants CB and BP.
2. The PTA was repealed on 15 December 2011 by the Terrorism Prevention and Investigation Measures Act 2011, but by virtue of paragraph 3(1) of Schedule 8 to that Act the repeal has no effect on this appeal.

The facts and the judgment below

3. I can take the relevant facts from the judgment of Silber J.
4. On 17 May 2010, following the grant of permission by the High Court, the Secretary of State made non-derogating control orders in respect of BP and CB. They had successfully appealed to the Special Immigration Appeals Commission against earlier orders to deport them on national security grounds. However, in its judgment dated 18 May 2010 SIAC had made some highly critical findings against them.
5. On 7 July 2010 CB was arrested pursuant to an extradition request of the United States of America and thereafter detained in custody. Although BP had successfully resisted deportation to Pakistan on the ground that if returned he would suffer serious ill treatment, on 16 July 2010 he voluntarily departed the United Kingdom for Pakistan. In consequence of these matters, both their control orders ceased to have practical effect.
6. On 22 and 23 July 2010, pursuant to the provisions of section 3(10) of the PTA, there was a hearing before Silber J for consideration of the control orders. At the outset of the hearing, the judge raised the issue why the control orders could not be revoked, bearing in mind the matters referred to in the previous paragraph. Later that day, the Secretary of State revoked both control orders. The judge found that it was highly unlikely that a control order would be reimposed on either of the appellants.
7. There was both an open and a closed session on 22 and 23 July 2010. The closed session addressed the question whether further disclosure by the Secretary of State was required in order to comply with the requirements of Article 6. The Court's consideration of this question was not completed over the two days available, and it was adjourned part heard.
8. On 17 January 2011, the judge circulated an email to the parties in which he raised the question whether the proceedings should continue, in the light of the pressure of work in the Administrative Court and the revocation of the control orders. In a further email of 16 June 2011, he raised the question whether the proceedings should be stayed. In his subsequent judgment, the judge explained why he had done so:

7. … I felt duty bound in the light of the fact that the control orders were discharged in July 2010 to consider whether the overriding objectives of the CPR required me to grant a stay of the present proceedings, essentially on the basis that the present section 3 (10) proceedings apparently no longer serve any purpose. The stated purpose of proceedings under section 3(10) of the 2005 Act is to consider whether a control order or any obligation in respect of it should be quashed or modified or whether a direction should be given to the Secretary of State to revoke the control order. I was concerned as to whether such a remedy is now academic as being unnecessary. I therefore raised this matter, which was considered solely at an open hearing, and which has led to the present judgment. …

9. Both the Secretary of State and the appellants submitted written notes addressing the issue of a stay, among other issues. For the Secretary of State, Mr Tam QC submitted that the Court has power under CPR Part 3.1(2)(f) to stay the proceedings, but that "in the light of the statutory provisions of the 2005 Act, and the apparent contemplation of the statute that a [section] 3(10) hearing must take place unless the individual requires otherwise, the Secretary of State makes no positive submission that the court should stay these proceedings as a whole".
10. Miss Harrison and Mr Grieves, counsel for the appellants, opposed the grant of a stay. In their note of 23 September 2010 they submitted:

i) The Secretary of State accepts that the PTA 2005 required the [section] 3(10)) hearing to go ahead unless the controlled person does not wish it to and does not positively submit the [section] 3(10) hearings ought to be stayed. In these circumstances the court could not use its case management powers to achieve a result contrary to the statutory provision. To grant a stay in such circumstances would be wrong in principle and amount to an abuse of process and in practice it is unacceptable given that there is no discernable event to which the stay could attach to and be pending. It is not in fact a stay but is bringing proceedings to an end which the statute mandates can only be done with the consent of the person subject to the order and it is categorically not given in these cases.

ii) Revocation of the order is not a sufficient remedy both BP and CB seek an order quashing the original decision to impose the order as void ab initio and can seek damages for the 9 and a half weeks that it was in place. AF, AE and AN v Secretary of State for the Home Department [2010] EWCA Civ 867 paragraphs 33 and 35

iii) Being subject to an unlawfully obtained order with severe restrictions on movement and personal life for 9 and a half weeks is a matter of real concern both to the clients and no doubt to the Court and it is surprising that the SSHD does not recognise the seriousness of the impact of such and the issues that arise and proposes, however, deftly to the court that it need not be concerned or troubled to determine these issues. This very approach was rejected by the Court of Appeal in AF, AN and AE at paragraph 33-34. "

11. The resumed hearing began on 4 July 2011. (The reasons for the delay since the hearing of 22 and 23 July 2010 are not known, and the delay is in any event irrelevant to the question raised on this appeal.) On the basis that the proceedings continued, the Secretary of State sought a further adjournment to consider her disclosure. The appellants opposed the application.
12. The judge gave judgment ordering a stay on 25 July 2011. He described the issue as "whether the present proceedings should be stayed on the basis that they serve no useful purpose as the control orders against both respondents have been revoked". He held:

(1) In control order proceedings, "a court may deploy any of its CPR case management powers including those set out at CPR 1.4(2) (c) in control order proceedings, bearing in mind the matters set out at CPR 1.1(2)(c)."

(2) It was not the function of the section 3(10) proceedings to determine whether the Secretary of State's applications for control orders were an abuse of the process of the court on the ground that the Secretary of State had failed to comply with the principles for disclosure set out in AF (No. 3) [2009] UKHL 28 [2010] 2 AC 269.

(3) Because:-

(a) The continuation of the proceedings would involve 4 sets of lawyers for some considerable time, involving considerable preparation by them and a representative of the Security Service and a hearing estimated at not less than 4 or 5 days.

(b) The legal costs involved would be very considerable: each of the appellants and the Secretary of State were represented by two counsel and a solicitor, and each of the appellants had two Special Advocates, all of whom were publicly funded.

(c) The Administrative Court was subject to very considerable pressures of work. The judge set out figures for outstanding applications for judicial review: in London 52 oral hearings for permission, 768 renewal oral applications, 634 substantive oral hearings as well as 412 paper applications were outstanding. The control order proceedings in the case of the appellants would require "up to seven judge days' time because apart from the four or five days spent on the hearing, there will be an additional two days required for pre-reading and judgment writing".

(d) Much time of the Security Service would be spent preparing for and appearing at the closed hearing.

(e) There were "a substantial number of hearings outstanding in other control order cases and because of the closed nature of the evidence there are only a limited number of staff that could be present at such hearings … and only two courts available. There is already a substantial backlog of control order cases requiring closed hearings. By continuing the section 3(10) proceedings, these courts and staff are likely to be out of operation for five days or so."

13. The judge concluded that, for these reasons, since the control orders had been in operation for a short time, and had been revoked, there was no justification for the continuation of the proceedings. He was fortified in that conclusion by the fact that the appellants could bring claims for damages against the Secretary of State for interference with their rights under the European Convention on Human Rights. In those proceedings the Secretary of State would be unable to rely on documents and other evidence that she had been unwilling to disclose, if they were the subject of public interest immunity.
14. Under the next heading of his judgment, the judge considered the appellants' reasons for wishing to continue the proceedings, on the basis that contrary to his conclusion there was jurisdiction to continue the proceedings even though the control orders had been revoked.
15. The first reason put forward by the appellants was that they wished to clear their names in fair proceedings, and they contended that the SIAC proceedings were not such. The judge pointed out that the question for the Court was whether the Secretary of State had reasonable grounds for suspecting that the appellants had been involved in terrorist-related activity, rather than whether they were objectively guilty of such involvement. In addition, the appellants had poor reputations, by reason of the SIAC open judgment. SIAC was "satisfied that CB was an Al Qaeda operative who posed and still poses a serious threat to the national security of the United Kingdom and that, subject to the issue of safety on return, it is conducive to the public good that he should be deported" [16]. BP "was on balance of probabilities a knowing party to [CB]'s plans" and "he can safely be taken to have been willing to participate with [X] in [CB's] plans" [27]. It therefore seemed unlikely that the control order proceedings could or would clear the reputation of either appellant.
16. The second reason put forward by the appellants was their wish to have the control orders quashed ab initio. The judge pointed out that neither appellant was being prosecuted for breach of his control order, and so the section 3(10) proceedings would have no effect on any criminal proceedings. Any damages recoverable by the appellants, if they succeeded in having the control orders quashed, would be very modest, in the region of €200.
17. The judge held that none of these reasons justified the continuation of the proceedings, the result of which would at best be wholly disproportionate to the very considerable resources that would be involved. He therefore made the order staying the proceedings.

The contentions of the parties

18. The appellants contend that the Court has no power to stay control order proceedings under section 3(10) of the PTA. They were granted permission to appeal on this ground. They secondly contend that if there is such power, the judge erred in exercising it in this case. The judge refused permission to appeal on this ground, and the appellants renewed their application for permission before us. Ms Harrison told us that the Special Advocates for both of the appellants support their appeal.
19. The Secretary of State has come off the fence. Mr Tam submitted that the judge was right to hold that the court management powers contained in CPR Part 3 apply equally to section 3(10) proceedings. His exercise of his discretion by staying the proceedings cannot be faulted for the reasons he gave.

The statutory provisions

20. Section 1 of the PTA conferred power to make a control order. Although defined in subsection (1) as "an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism", in practice the most onerous terms of control orders were and are restrictions rather than positive obligations. Control orders that deprive a person of his liberty are termed "derogating control orders"; those that restrict liberty, but do not amount to a total deprivation of liberty, are referred to as "non-derogating control orders". The power to make a derogating control order was conferred on the High Court, acting on the application of the Secretary of State. Section 1(2)(a) conferred the power to make a non-derogating control order on the Secretary of State.
21. As mentioned above, this appeal concerns non-derogating control orders. The making of such orders is the subject of section 2. Subsection (1) provided:

(1) The Secretary of State may make a control order against an individual if he–

(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.

22. Non-derogating control orders had effect for a period of 12 months from the day on which they were made, but might be renewed if the Secretary of State considers it necessary: subsection (4).
23. The Secretary of State's powers to make and to renew non-derogating control orders were subject to the supervision of the Court. Section 3 was headed "Supervision by court of making of non-derogating control orders" and was as follows:

(1) The Secretary of State must not make a non-derogating control order against an individual except where–

(a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order and has been granted that permission;

(b) the order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission; or

(c) [Immaterial]

(2) Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and–

(a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed;

(b) the court may give that permission unless it determines that the decision is obviously flawed; and

(c) if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.

(3) Where the Secretary of State makes a non-derogating control order against an individual without the permission of the court–

(a) he must immediately refer the order to the court; and

(b) the function of the court on the reference is to consider whether the decision of the Secretary of State to make the order he did was obviously flawed.

(4) The court's consideration on a reference under subsection (3)(a) must begin no more than 7 days after the day on which the control order in question was made.

(5) The court may consider an application for permission under subsection (1)(a) or a reference under subsection (3)(a)–

(a) in the absence of the individual in question;

(b) without his having been notified of the application or reference; and

(c) without his having been given an opportunity (if he was aware of the application or reference) of making any representations to the court;

but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference.

(6) On a reference under subsection (3)(a), the court–

(a) if it determines that the decision of the Secretary of State to make a non-derogating control order against the controlled person was obviously flawed, must quash the order;

(b) if it determines that that decision was not obviously flawed but that a decision of the Secretary of State to impose a particular obligation by that order was obviously flawed, must quash that obligation and (subject to that) confirm the order and give directions for a hearing in relation to the confirmed order; and

(c) in any other case, must confirm the order and give directions for a hearing in relation to the confirmed order.

(7) The directions given under subsection (2)(c) or (6)(b) or (c) must include arrangements for the individual in question to be given an opportunity within 7 days of the court's giving permission or (as the case may be) making its determination on the reference to make representations about–

(a) the directions already given; and

(b) the making of further directions.

(8) On a reference under subsection (3)(a), the court may quash a certificate contained in the order for the purposes of subsection (1)(b) if it determines that the Secretary of State's decision that the certificate should be contained in the order was flawed.

(9) The court must ensure that the controlled person is notified of its decision on a reference under subsection (3)(a).

(10) On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed–

(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

(b) his decisions on the imposition of each of the obligations imposed by the order.

(11) In determining–

(a) what constitutes a flawed decision for the purposes of subsection (2), (6) or (8), or

(b) the matters mentioned in subsection (10),

the court must apply the principles applicable on an application for judicial review.

(12) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are–

(a) power to quash the order;

(b) power to quash one or more obligations imposed by the order; and

(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(13) In every other case the court must decide that the control order is to continue in force.

(14) If requested to do so by the controlled person, the court must discontinue any hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c).

24. Section 10 of the PTA conferred on controlled persons rights of appeal to the Court against decisions of the Secretary of State to renew a non-derogating control order, or to modify an obligation it imposed without the consent of the controlled person, or against the Secretary of State's refusal to revoke such an order or her refusal to modify an obligation it imposed. As in the case of section 3, the orders that may be made by the Court on an appeal under section 10 are circumscribed, in this case by section 10(7) and (8): the Court may quash the renewal of the order, quash one or more of the obligations imposed by the order, give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes, but in every other case must dismiss the appeal.
25. A breach of an obligation imposed by a control order is a criminal offence. Section 12 conferred special rights of appeal on controlled persons who are convicted of such offences. If the order is subsequently quashed, with effect from a date before the breach of the obligation in question, the controlled person may appeal, and the appeal court must allow the appeal and quash the conviction.
26. Most of the provisions of the PTA came into force on 11 March 2005. On the same date, CPR Part 76, which applies to proceedings under the PTA, was inserted into the CPR by the Civil Procedure (Amendment No.2) Rules 2005, SI 2005/656, made by the Lord Chancellor under the power conferred by Section 11(5) of the PTA. Part 76.21 is as follows:

76.21.—(1) The following proceedings must be determined at a hearing—

(a) a hearing pursuant to directions given under section 4(1)(b) of the Act (derogating control orders);

(b) a hearing pursuant to directions given under sections 3(2)(c) or (6)(b) or (c) of the Act (non-derogating control orders);

(c) an appeal under section 10 of the Act (appeal relating to a non-derogating control order);

(d) an appeal to the Court of Appeal from an order of the High Court made in any of the above proceedings; and

(e) a hearing under rule 76.29(2) (consideration of Secretary of State's objection).

(2) Paragraph (1)(c) and (d) do not apply where—

(a) the appeal is withdrawn by the controlled person;

(b) the Secretary of State consents to the appeal being allowed; or

(c) the controlled person is outside the United Kingdom or it is impracticable to give him notice of a hearing and, in either case, he is unrepresented.

27. Part 76.31 is also relevant:

Failure to comply with directions

76.31.—(1) Where a party or the special advocate fails to comply with a direction of the court, the court may serve on him a notice which states—

(a) the respect in which he has failed to comply with the direction;

(b) a time limit for complying with the direction; and

(c) that the court may proceed to determine the proceedings before it, on the material available to it, if the party or the special advocate fails to comply with the relevant direction within the time specified.

(2) Where a party or special advocate fails to comply with such a notice, the court may proceed in accordance with paragraph (1)(c).

28. CPR Part 1.1 sets out the overriding objective, which includes allotting to a case "an appropriate share of the court's resources, while taking into account the need to allot resources to other areas". The Court's duty to manage cases to further the overriding objective is imposed by Part 1.4. Part 3.2, so far as relevant, is as follows:

(2) Except where these Rules provide otherwise, the court may-

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);

(b) adjourn or bring forward a hearing;

(c) ….

(f) stay the whole or part of any proceedings or judgment either generally or until a specified date or event;

29. Part 3.3 provides that, except where a rule or some other enactment provided otherwise, the court may exercise its powers on an application or on its own initiative. In the present case, Silber J exercised what he considered to be his power under CPR Part 3.2(2)(f) on his own initiative.

Discussion

30. If these were not control order proceedings, there would be much to be said for the judge's approach and his order. The principal question on this appeal is whether his order was a permissible order having regard to the provisions of the PTA and CPR Part 76 and the constitutional principles involved.
31. The stay ordered by the judge was not intended, or framed, as an interlocutory order. It was not, for instance, a stay pending some event such as judgment in a test case or a judgment of an appeal court; equally, it was not a stay that envisaged its removal if and when circumstances change. This stay was to put an end to the proceedings. As such, it was not one of the orders permitted by subsections (12), (13) and (14) of section 3. I say "permitted", because subsection (12) specified the only powers the Court has if it finds that a relevant decision of the Secretary of State was flawed; in every other case the Court is required to decide that the control order is to continue in force. Subsection (14) conferred power on the Court to discontinue a hearing if requested to do so by the controlled person. It follows that the Court cannot discontinue a hearing unless the controlled person does so request.
32. In my judgment, the difficulty with the order made by the judge is that in substance it effected a discontinuance of the section 3(10) hearing. It brought the proceedings to an end without any finding that the decision of the Secretary of State was, or was not, flawed. It is a discontinuance by another name. It was not requested by the controlled persons. It follows that the Court had no power to make it. The general powers of management conferred on the Court by the CPR, to which I have referred, are subject to any applicable statutory provision. Section 3 of the PTA is such a provision.
33. I do not find this surprising. The Act imposes a strong supervisory jurisdiction on the Court. A non-derogating control order may, and often does, impose serious restrictions on the liberty of the controlled person. Parliament ensured that the considerable power it conferred on the Secretary of State would be the subject of the Court's judgment, save where the controlled person agreed, by his request pursuant to section 3(14), that its judgment was unnecessary.
34. This conclusion is consistent with the provisions of CPR 76.21. The words "The following proceedings must be determined at a hearing" must be interpreted in the light of sections 3 and 10 of the Act. "Determined" means "decided" as required by those sections, i.e., save where the controlled person requests discontinuance, the Court must determine whether or not the Secretary of State's decision in issue was flawed. Paragraph (2) of Part 76.21 only makes sense if that is the meaning of "determined". Similarly, the provision of Part 76.31 authorising the Court using similar words "to proceed to determine the proceedings before it, on the material available to it" envisages the Court making a substantive determination: hence the reference to "the material available to it".
35. It follows from Part 76.21(2)(c) that an appeal against a first instance decision must proceed to a judgment even if the controlled person is abroad, and the control order is therefore of no effect, provided he is represented, as the present appellants are. Similarly, it seems that if the whereabouts of the controlled person are unknown, and for that reason it is impracticable to give him notice of the hearing of his appeal, provided he is represented the Court must determine the appeal. Yet in such a case also the control order may be having no practical effect. It would be inconsistent with Part 76.21 for the Court to have the power to stay an appeal in circumstances to which paragraph (2)(c) does not apply.
36. Lastly, it is significant that Part 76.31 provides, in the event of a party or the special advocate failing to comply with a direction of the court, not that the Court may stay or discontinue the proceedings, or strike out the case of the party in default, but that it may proceed to determine the proceedings.
37. In my judgment, there is nothing in Part 76 to support the proposition that the Court may order a permanent stay of proceedings in circumstances such as those of the present case.
38. It follows that I would hold that the judge did not have the power to make the order staying the control order proceedings.
39. In coming to this conclusion, I have not ignored the fact that, in my judgment, section 3(10) to (14) are not happily drafted. They are worded as if they are a comprehensive statement of the powers of the Court, but there are obvious omitted cases. What if the controlled person has died? Must the Court, if it finds that the relevant decisions of the Secretary of State were not flawed, decide that the control order is to continue in force, as subsection (13) provides? What if the Secretary of State's decisions are held not to have been flawed, but when the Court makes its determination she has revoked the control order? How can the Court then sensibly comply with the apparently clear words of subsection (13) and decide that the control order, which ex hypothesi no longer exists, "is to continue in force"? I think that the answer must be that subsections (12)(c) and (13) assumed that there was a control order in force at the date of the Court's determination; and I would hold that where this assumption is inapplicable, but the Court would otherwise decide that the control order is to continue in force, it may make no substantive order.

Conclusion

40. For these reasons, I would allow this appeal and set aside the order made by Silber J. I would remit the proceedings to the Administrative Court for it to give directions to enable the proceedings to be determined, in the sense in which I have used that word, as soon and as efficiently as possible.

The Master of the Rolls :
 


41. In his judgment, Stanley Burnton LJ has fully and clearly set out the relevant factual and procedural history, as well as the relevant provisions of the Prevention of Terrorism Act 2005 ('PTA') and the Civil Procedure Rules ('CPR').
42. Proceedings under section 3 of PTA often involve a substantial amount of evidence, much of it secret, detailed legal argument, and three sets of counsel, owing to the need for special advocates. Such proceedings are therefore often time-consuming and expensive. So, where a controlled person has left the jurisdiction, apparently for good, and the control order has been accordingly revoked by the Secretary of State, the value of pursuing a reference under subsections (2)(c) and (10) of section 3, with a view to deciding whether the Secretary of State's decision to make the control order was flawed seems, at least at first sight, highly questionable. This is so particularly at a time such as this, when pressure on court time and costs, and indeed on Home Office personnel and expenditure, is so intense, and particularly in a case such as this, where highly critical findings have been already made against the particular controlled persons by a court, namely SIAC.
43. However, when making a non-derogating control order, even with the prior sanction of the court, the Home Secretary is exercising an exceptionally invasive power over some of the fundamental freedoms of an individual. It would be unsurprising, to put it at its lowest, if the legislature, Parliament, considered that the executive, a Government Minister, should be given this draconian right only if its exercise had to be reviewed by the third arm of government, the judiciary. It is an absolutely fundamental feature of our democratic system that any act of the executive is capable of being subjected to judicial review – such that there has been a suggestion at the highest level that the legislature could not lawfully abrogate the right of a citizen to seek judicial redress for abuse or misuse of executive power.
44. Particularly where the act in question involves interference with an individual's freedom of action and movement, it seems to me that there is a powerful case for saying that the need for judicial supervision is not merely a matter of concern to that individual but to the public at large. There are some executive decisions which are so intrusive of individual rights that it can be said that it is in the interest of all citizens, and not merely the person directly affected, that the grounds for the decision are examined by a judge. So, where a control order is made, it appears to me that there are strong grounds for contending that it is appropriate not merely for the benefit of the controlled person, but also in the wider public interest, that the court has the opportunity to consider whether the order and its terms were justified in law.
45. Of course, the individuals against whom control orders are made frequently represent a real menace, even a great danger, to public safety. However, happily, it is a long time since we recognised the concept of outlaws: unattractive, criminal, and dangerous people all have rights. In many respects, it is only when the rights of such people are at stake that the genuineness of a society's commitment to fundamental rights really falls to be tested.
46. In these circumstances, the fact that, subject to one exception, in proceedings under section 3(2)(c) of PTA, the court must always resolve the issues in paragraphs (a) and (b) of section 3(10), is, to put it at its lowest, unsurprising; indeed, it is in accordance with what many people would expect. The one exception is under section 3(14), which provides for discontinuance of the proceedings if the controlled person so requests. That provision is quite consistent with the public having an interest in the proceedings. First, there is something in the point that, if the controlled person makes such a request, he or she is thereby effectively consenting to the control order, which removes its draconian quality. Secondly, even if that is too glib an analysis, it seems to me quite appropriate for the specific desire of the very person who is or has been subject to the order concerned that the judicial review ends, should prevail over the more general public interest that such reviews take place as a matter of course.
47. Turning now to section 3 itself, I start with subsection (2)(c), which clearly stipulates that, whenever a non-derogating control order is made with the prior consent of the court, the court 'must' give directions for a hearing, which is to take place 'as soon as reasonably practicable'. Subsection (10) identifies 'the function of the court' at such a hearing. The natural inference is that that is concerned with defining what the court must do. That is reinforced by subsection (12) which limits the court's powers in a way which effectively requires it to make one of three orders if it concludes that the Secretary of State's decision was in some way flawed. Subsection (13) is also consistent with this conclusion. So does subsection (14), whose strong implication is that it is only if the controlled person actually so requests that the section 3(2)(c) proceedings can be aborted.
48. The limited options in subsections (10), (12) and (13), and the specific provision of subsection (14) therefore support the contention that, once an application for review is required by section 3(2)(c), the court has a duty to go on to decide it – unless the controlled person wants the proceedings to be discontinued under section 3(14).
49. It is true that subsection (13) does not seem to apply happily to a case where the control order has been revoked, or where the controlled person has died, by the time the court has to make an order. However, the answer to that is either that the court's determination under subsection (13) would be that the control order has continued until the revocation or the death, or that the position is as stated by Stanley Burnton LJ in para 39 above.
50. Accordingly, although I have some sympathy with the reasoning which led him to make the order he did, I do not think that it was open to Silber J to stay the present proceedings simply because the controlled persons had left the country and the Home Secretary had revoked the control orders. Mr Tam QC suggested, on behalf of the Home Secretary, that the stay left the proceedings on foot, and, as they were not therefore disposed of by the Judge's order, it was unobjectionable. I cannot accept that. The stay was not like a temporary adjournment: it was in effect a permanent suspension of the proceedings, whose effect was to preclude any possibility of one of the limited permitted conclusions under section 3 being achieved.
51. The fact that the court is required to scrutinise the making and terms of control orders which have been made without its prior permission, does not remove the need for effective case management in relation to review applications made under section 3(2)(c) of the PTA. Indeed, the important and controversial issues, and the potentially complicating features (substantial evidence, much of it often secret, significant legal argument, and three or more sets of advocates), involved in such cases underline the need for early identification of the issues and relevant evidence, and for careful and tight time-tabling (and, in due course perhaps, early costs management). Judges and lawyers in cases in this field should not only be acutely conscious of the important human rights, public protection, and national security issues to which they give rise, but also for the need to retain public confidence in the system which deals with such issues. That confidence will be at risk if costs and delays in cases such as the present are not kept to a minimum.
52. Silber J had that point well in mind when he made the stay order. However, in my judgment, in his commendable desire to keep the costs and court time involved in these proceedings to a minimum, he went further than the PTA permitted, in the light of the terms of section 3, reinforced by the policy considerations discussed above.
53. Accordingly, for these reasons, which are very much along the same lines as those given by Stanley Burnton LJ in paras 31-33 above, I would allow this appeal. I also agree with him that the provisions of CPR Part 76 support this conclusion for the reasons which he gives in paras 34-37 above.

Lady Justice Hallett:

54. I agree that the appeal should be allowed for the reasons given by Stanley Burnton LJ and by the Master of the Rolls.