Part 76 PROCEEDINGS UNDER THE PREVENTION OF TERRORISM ACT 2005
I APPLICATION OF THIS PART
Scope and interpretation
76.1
(1) This Part contains rules about –
(a) control order proceedings in the High Court; and
(b) appeals to the Court of Appeal against an order of the High Court in such proceedings.
(2) In the case of proceedings brought by virtue of section 11(2) of the Act, the rules in this Part shall apply with any modification which the court considers necessary.
(3) In this Part –
(a) ‘the Act’ means the Prevention of Terrorism Act 2005;
(b) ‘closed material’ means any relevant material that the Secretary of State objects to disclosing to a relevant party;
(e) ‘legal representative’ is to be construed in accordance with paragraph 11 of the Schedule to the Act;
(f) ‘open material’ means any relevant material that the Secretary of State does not object to disclosing to a relevant party;
(4) For the purposes of this Part, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.
Modification to the overriding objective
76.2
(1) Where this Part applies, the overriding objective in Part 1, and so far as relevant any other rule, must be read and given effect in a way which is compatible with the duty set out in paragraph (2).
(2) The court must ensure that information is not disclosed contrary to the public interest.
(3) Subject to paragraph (2), the court must satisfy itself that the material available to it enables it properly to determine proceedings.
II APPLICATION TO THE HIGH COURT RELATING TO DEROGATING CONTROL ORDERS
Scope of this section
76.3
(1) This section of this Part contains rules about applications relating to derogating control orders.
(2) Part 23 does not apply to an application made under this section of this Part.
Applications for the making of a derogating control order
76.4
An application for the making of a derogating control order under section 4(1) of the Act must be made by the Secretary of State by filing with the court –
(a) a statement of reasons to support the application for –
(i) making such an order, and
(ii) imposing each of the obligations to be imposed by that order;
(b) all relevant material;
(c) any written submissions; and
(d) a draft of the order sought.
Directions for a full hearing on notice
76.5
(1) When the court makes a derogating control order under section 4(3) of the Act it must –
(a) immediately fix a date, time and place for a further hearing at which the controlled person, his legal representative and a special advocate (if one has been appointed) can be present; and
(b) unless the court otherwise directs, that date must be no later than 7 days from the date that the order is made.
(2) At the hearing referred to in paragraph (1)(a) the court must give directions –
(a) for the holding of a full hearing under section 4(1)(b) of the Act to determine whether to confirm the control order (with or without modifications) or to revoke it; and
(b) specifying the date and time by which the parties and special advocate must file and serve any written evidence or written submissions in accordance with rule 76.30.
(3) When giving directions under paragraph (2), the court must have regard to the need to expedite the full hearing.
Applications on notice
76.6
(1) An application under section 4(9) for the renewal, or under section 7(4) of the Act, for the revocation of a control order or for the modification of obligations imposed by such an order, must be made in accordance with this rule.
(2) An application by the Secretary of State must be made by –
(a) filing with the court –
(i) a statement of reasons to support the application,
(ii) all relevant material,
(iii) any written submissions, and
(iv) a draft of the order sought; and
(b) serving on the controlled person or his legal representative any open material.
(3) An application by the controlled person must be made by filing with the court and serving on the Secretary of State –
(a) a statement of reasons to support the application;
(b) any written evidence upon which he relies;
(c) any written submissions; and
(d) where appropriate, a draft of the order sought.
(4) If the controlled person wishes to oppose an application made under this rule, he must as soon as practicable file with the court, and serve on the Secretary of State, any written evidence and any written submissions upon which he relies.
(5) If the Secretary of State wishes to oppose an application made under this rule, he must as soon as practicable –
(b) serve on the controlled person any open material.
(Attention is drawn to rule 76.18 relating to the address for issuing proceedings in the High Court. Rules 76.28 and 76.29 will apply where any closed material is filed by the Secretary of State).
III PERMISSION APPLICATIONS, REFERENCES AND APPEALS TO THE HIGH COURT RELATING TO NON-DEROGATING CONTROL ORDERS
Scope of this section
76.7
This section of this Part contains rules about –
(a) applications under section 3(1)(a) of the Act (application for permission to make a non-derogating control order);
(b) references under section 3(3) of the Act (reference of a non-derogating control order made without permission); and
(c) appeals to the High Court under section 10 of the Act (appeals relating to non-derogating control orders).
Application for permission to make non-derogating control order
76.8
An application under section 3(1)(a) for permission to make a non-derogating control order must be made by the Secretary of State by filing with the court –
(a) a statement of reasons to support the application;
(b) all relevant material;
(c) any written submissions; and
(d) the proposed control order.
References under section 3(3) of the Act
76.9
(1) This rule applies where the Secretary of State makes a reference under section 3(3) of the Act (reference of a non-derogating control order).
Directions for hearing on application for permission or on a reference
76.10
(1) This rule applies where the court gives directions under section 3(2)(c) or (6)(b) or (c) of the Act.
(2) The court must immediately –
(a) fix a date, time and place for a further hearing at which the controlled person, his legal representative and a special advocate (if one has been appointed) can be present; and
(b) unless the court otherwise directs –
(i) in the case of directions given under section 3(2)(c), that date must be no later than 7 days from the date on which the notice of the terms of the control order is delivered to the controlled person in accordance with section 7(8) of the Act; or
(ii) in the case of directions given under section 3(6)(b) or (c), that date must be 7 days from the date on which the court's determination on the reference is made.
(3) At the hearing referred to in paragraph (2), the court must give directions –
(a) for a hearing under section 3(10); and
(b) specifying the date and time by which the parties and special advocate must file and serve any written evidence or written submissions in accordance with rule 76.30.
(4) When giving directions under paragraph (3), the court must have regard to the need to expedite that hearing.
(Rules 76.28 and 76.29 will apply where any closed material is filed by the Secretary of State).
Appeals under section 10 of the Act
76.11
This rule and rules 76.12 to 76.15 apply to an appeal under section 10 of the Act (appeals relating to a non-derogating control order).
Modification of Part 52 (appeals)
76.12
(1) Part 52 (appeals) applies to an appeal under section 10 of the Act, subject to –
(a) rule 76.2;
(b) the rules in section 5 of this Part; and
(c) the modifications set out in paragraphs (2) and (3) of this rule.
(2) The following rules do not apply to appeals under section 10 of the Act –
(a) rules 52.3, 52.4 and 52.6 (permission);
(b) rule 52.12 (appellant's notice);
(c) rule 52.13 (respondent's notice); and
(d) rule 52.21 (hearing of appeals).
Notice of appeal
76.13
(1) The controlled person must give notice of appeal by –
(a) filing it with the court; and
(b) serving a copy of the notice and any accompanying documents on the Secretary of State.
(3) A notice of appeal may include an application for an order under rule 76.19 requiring anonymity.
(4) The notice of appeal must be filed with –
(a) a copy of the order that is the subject of the appeal;
(b) a copy of the Secretary of State's decision on an application for the revocation of the control order, or for the modification of an obligation imposed by such an order.
(Attention is drawn to rule 76.18 relating to the address for issuing proceedings in the High Court).
Time limit for appealing
76.14
(1) Subject to paragraph (2), the controlled person must give notice of appeal no later than 28 days after receiving –
(a) the notice setting out the terms of the order, renewal or modification that is the subject of the appeal; or
(b) notice of the decision by the Secretary of State on an application for the revocation of the control order, or for the modification of an obligation imposed by such an order.
(2) In a case where the Secretary of State has failed to determine an application for the revocation of the control order, or for the modification of an obligation imposed by such an order, the controlled person must file the notice of appeal –
(a) no earlier than 28 days; and
(b) no later than 42 days;
after the date the application was made.
Secretary of State's reply
76.15
IV APPEALS TO THE COURT OF APPEAL
Modification of Part 52 (appeals)
76.16
(1) Part 52 (appeals) applies to an appeal to the Court of Appeal against an order of the High Court in control order proceedings, subject to –
(a) rule 76.2;
(b) the rules in section 5 of this Part; and
(c) paragraphs (2) and (3) of this rule.
(2) The following rules do not apply to appeals to the Court of Appeal –
(a) rule 52.12(1) (appellant's notice); and
(b) rule 52.13 (respondent's notice); but
the provisions of rules 76.13 and 76.15 shall apply with appropriate modifications.
V GENERAL PROVISIONS
Address for issuing proceedings in the High Court
76.18
Any control order proceedings must be issued at the Administrative Court Office, Room C315, Royal Courts of Justice, Strand, London, WC2A 2LL.
Applications for anonymity
76.19
(1) The controlled person or the Secretary of State may apply for an order requiring the anonymity of the controlled person.
(2) An application under paragraph (1) may be made at any time, irrespective of whether any control order proceedings have been commenced.
(3) An application may be made without notice to the other party.
(4) References in this rule –
(a) to an order requiring anonymity for the controlled person are to be construed in accordance with paragraph 5(3) of the Schedule to the Act; and
(b) to the controlled person, in relation to a time before the control order has been made, are to be construed in accordance with paragraph 5(4) of the Schedule to the Act.
Hearings
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.
Hearings in private
76.22
(1) If the court considers it necessary for any relevant party and his legal representative to be excluded from a hearing or part of a hearing in order to secure that information is not disclosed contrary to the public interest, it must –
(a) direct accordingly; and
(b) conduct the hearing, or that part of it from which the relevant party and his legal representative are excluded, in private.
(2) The court may conduct a hearing or part of a hearing in private for any other good reason.
Appointment of a special advocate
76.23
(1) Subject to paragraph (2), the Secretary of State must immediately give notice of the proceedings to the Attorney General upon –
(a) making an application under section 4(1) of the Act (relating to a derogating control order);
(b) making an application under section 3(1)(a) of the Act (application for permission to make a non-derogating control order);
(c) making a reference under section 3(3) of the Act (reference of a non-derogating control order made without permission); or
(d) being served with a copy of any application, claim, or notice of appeal in proceedings to which this Part applies.
(2) Paragraph (1) applies unless –
(a) the Secretary of State does not intend to –
(i) oppose the appeal or application; or
(ii) withhold closed material from a relevant party; or
(b) a special advocate has already been appointed to represent the interests of the relevant party in the proceedings and that special advocate is not prevented from communicating with that party by virtue of rule 76.25.
(3) Where notice is given to the Attorney General under paragraph (1), the Attorney General may appoint a special advocate to represent the interests of the relevant party in the proceedings.
(4) Where any proceedings to which this Part apply are pending but no special advocate has been appointed, a relevant party or the Secretary of State may request the Attorney General to appoint a special advocate.
Functions of special advocate
76.24
Special advocate: communicating about proceedings
76.25
(1) The special advocate may communicate with the relevant party or his legal representative at any time before the Secretary of State serves closed material on him.
(2) After the Secretary of State serves closed material on the special advocate, the special advocate must not communicate with any person about any matter connected with the proceedings, except in accordance with paragraph (3) or a direction of the court pursuant to a request under paragraph (4).
(3) The special advocate may, without directions from the court, communicate about the proceedings with –
(a) the court;
(b) the Secretary of State, or any person acting for him;
(c) the Attorney General, or any person acting for him; or
(d) any other person, except for the relevant party or his legal representative, with whom it is necessary for administrative purposes for him to communicate about matters not connected with the substance of the proceedings.
(4) The special advocate may request directions from the court authorising him to communicate with the relevant party or his legal representative or with any other person.
(5) Where the special advocate makes a request for directions under paragraph (4) –
(a) the court must notify the Secretary of State of the request; and
(b) the Secretary of State must, within a period specified by the court, file with the court and serve on the special advocate notice of any objection which he has to the proposed communication, or to the form in which it is proposed to be made.
(6) Paragraph (2) does not prohibit the relevant party from communicating with the special advocate after the Secretary of State has served material on him as mentioned in paragraph (1), but –
(a) the relevant party may only communicate with the special advocate through a legal representative in writing; and
(b) the special advocate must not reply to the communication other than in accordance with directions of the court, except that he may without such directions send a written acknowledgment of receipt to the legal representative of the relevant party.
Modification of the general rules of evidence and disclosure
76.26
(1) Part 31 (disclosure and inspection of documents), Part 32 (evidence) and Part 33 (miscellaneous rules about evidence) do not apply to any proceedings to which this Part applies.
(2) Subject to the other rules in this Part, the evidence of a witness may be given either –
(a) orally, before the court; or
(b) in writing, in which case it shall be given in such manner and at such time as the court directs.
(3) The court may also receive evidence in documentary or any other form.
(4) The court may receive evidence that would not, but for this rule, be admissible in a court of law.
(5) Every party shall be entitled to adduce evidence and to cross-examine witnesses during any part of a hearing from which he and his legal representative are not excluded.
(6) The court may require a witness to give evidence on oath.
Filing and service of relevant material
76.27
The Secretary of State is required to make a reasonable search for relevant material and to file and serve that material in accordance with the rules in this Part.
Closed material
76.28
(1) The Secretary of State –
(a) must apply to the court for permission to withhold closed material from a relevant party or his legal representative in accordance with this rule; and
(b) may not rely on closed material at a hearing on notice unless a special advocate has been appointed to represent the interests of the relevant party.
(2) The Secretary of State must file with the court and serve, at such time as the court directs, on the special advocate –
(a) the closed material;
(b) a statement of his reasons for withholding that material from the relevant party; and
(c) if he considers it possible to summarise that material without disclosing information contrary to the public interest, a summary of that material in a form which can be served on the relevant party.
Consideration of Secretary of State's objection
76.29
(1) This rule applies where the Secretary of State has –
(a) objected under rule 76.25(5)(b) to a proposed communication by the special advocate or to the form in which it is proposed to be made; or
(b) applied under rule 76.28 for permission to withhold closed material.
(2) The court must fix a hearing for the Secretary of State and the special advocate to make oral representations, unless –
(a) the special advocate gives notice to the court that he does not challenge the objection or application;
(b) the court has previously considered –
(i) an objection under rule 76.25(5)(b) to the same or substantially the same communication, or
(ii) an application under rule 76.28(1) for permission to withhold the same or substantially the same material, and
is satisfied that it would be just to uphold that objection or to give permission without a hearing; or
(c) the Secretary of State and the special advocate consent to the court deciding the issue without a hearing.
(3) If the special advocate does not challenge the objection or the application, he must give notice of that fact to the court and the Secretary of State within 14 days, or such other period as the court may direct, after the Secretary of State serves on him a notice under rule 76.25(5)(b) or material under rule 76.28(2).
(4) Where the court fixes a hearing under this rule, the Secretary of State and the special advocate must before the hearing file with the court a schedule identifying the issues which cannot be agreed between them, which must –
(a) list the items or issues in dispute;
(b) give brief reasons for their contentions on each; and
(c) set out any proposals for the court to resolve the issues in contention.
(5) A hearing under this rule shall take place in the absence of the relevant party and his legal representative.
(6) Where the court gives permission to the Secretary of State to withhold closed material, the court must –
(a) consider whether to direct the Secretary of State to serve a summary of that material on the relevant party or his legal representative; but
(b) ensure that no such summary contains information or other material the disclosure of which would be contrary to the public interest.
(7) Where the court has not given permission to the Secretary of State to withhold closed material from, or has directed the Secretary of State to serve a summary of that material on, a relevant party or his legal representative –
(a) the Secretary of State shall not be required to serve that material or summary; but
(b) if he does not do so, at a hearing on notice the court may –
(i) if it considers that the material or anything that is required to be summarised might be of assistance to the relevant party in relation to a matter under consideration by the court, direct that the matter be withdrawn from its consideration, and
(ii) in any other case, direct that the Secretary of State shall not rely in the proceedings on that material or (as the case may be) on what is required to be summarised.
Order of filing and serving material and written submissions
76.30
Subject to any directions given by the court, the parties must file and serve any material and written submissions, and the special advocate must file and serve any written submissions, in the following order –
(a) the Secretary of State must file with the court all relevant material;
(b) the Secretary of State must serve on
(i) the relevant party or his legal representative; and
(ii) the special advocate (as soon as one is appointed) or those instructing him,
any open material;
(c) the relevant party must file with the court and serve on the Secretary of State and special advocate (if one is appointed) or those instructing him any written evidence which he wishes the court to take into account at the hearing;
(d) the Secretary of State must file with the court any further relevant material;
(e) the Secretary of State must serve on –
(i) the relevant party or his legal representative, and
(ii) the special advocate (as soon as one is appointed) or those instructing him,
any open material filed with the court under paragraph (d);
(f) the Secretary of State must serve on the special advocate (if one has been appointed) any closed material;
(g) the parties and the special advocate (if one has been appointed) must file and serve any written submissions as directed by the court.
(Rules 76.28 and 76.29 will apply where any closed material is filed by the Secretary of State).
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).
Judgments
76.32
(1) When the court gives judgment in any proceedings to which this Part applies, it may withhold any or part of its reasons if and to the extent that it is not possible to give reasons without disclosing information contrary to the public interest.
(2) Where the judgment of the court does not include the full reasons for its decision, the court must serve on the Secretary of State and the special advocate a separate written judgment including those reasons.
Application by Secretary of State for reconsideration of decision
76.33
(1) This rule applies where the court proposes, in any proceedings to which this Part applies, to serve notice on a relevant party of any –
(a) order or direction made or given in the absence of the Secretary of State; or
(b) any judgment.
(2) Before the court serves any such notice on the relevant party, it must first serve notice on the Secretary of State of its intention to do so.
(3) The Secretary of State may, within 5 days of being served with notice under paragraph (2), apply to the court to reconsider the terms of the order or direction or to review the terms of the proposed judgment if he considers that –
(a) his compliance with the order or direction; or
(b) the notification to the relevant party of any matter contained in the judgment, order or direction;
would cause information to be disclosed contrary to the public interest.
(4) Where the Secretary of State makes an application under paragraph (3), he must at the same time serve on the special advocate, if one has been appointed –
(a) a copy of the application; and
(b) a copy of the notice served on the Secretary of State pursuant to paragraph (2).
(5) Rule 76.29 (except for paragraphs (6) and (7)) shall, if a special advocate has been appointed, apply with any necessary modifications to the consideration of an application under paragraph (3) of this rule.
(6) The court must not serve notice on the relevant party as mentioned in paragraph (1) before the time for the Secretary of State to make an application under paragraph (3) has expired.
Supply of court documents
76.34
Unless the court otherwise directs, rule 5.4 (Register of Claims), rule 5.4B (Supply of documents from court records – a party) and rule 5.4C (Supply of documents from court records – a non-party) do not apply to any proceedings to which this Part applies.