PART 80 - Proceedings under the Terrorism Prevention and Investigation
I APPLICATION OF THIS PART
Scope and interpretation
80.1
(1) This Part contains rules about–
(a) TPIM 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 17(2) of the Act, the rules in this Part shall apply with any modification the court considers necessary.
(3) In this Part –
(a) ‘the Act’ means the Terrorism, Prevention and Investigation Measures Act 2011;
(b) ‘closed material’ means any relevant material that the Secretary of State objects to disclosing to a relevant party on the grounds that it is contrary to the public interest;
(c) ‘extension notice’ means a notice issued under section 5(2) of the Act, extending a TPIM notice;
(d) ‘legal representative’ is to be construed in accordance with paragraph 4(4)(b) of Schedule 4 to the Act;
(e) ‘measures’ means terrorism prevention and investigation measures (which has the same meaning as in section 2 of the Act);
(f) ‘open material’ means any relevant material that the Secretary of State does not object to disclosing to a relevant party on the grounds that it is contrary to the public interest;
(g) ‘relevant material’ means the material described in paragraph 3(1)(a) to (c) of Schedule 4 to the Act;
(h) ‘relevant party’ means any party to the proceedings other than the Secretary of State;
(i) ‘revival notice’ means a notice issued under section 13(6) of the Act, reviving a TPIM notice;
(j) ‘special advocate’ means a person appointed under paragraph 10(1) of Schedule 4 to the Act;
(k) ‘TPIM notice’ has the same meaning as in section 2(1) of the Act;
(l) ‘TPIM proceedings’ has the same meaning as in section 30(1) of the Act;
(m) ‘TPIM subject’ means an individual on whom the Secretary of State has imposed, or is proposing to impose, measures by means of a TPIM notice;
(n) ‘variation notice’ means a notice issued under section 12(1)(c) of the Act, varying the TPIM notice without the individual's consent.
(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 or 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
80.2
(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 PERMISSION APPLICATIONS, REFERENCES AND APPEALS TO THE HIGH COURT RELATING TO TPIM NOTICES
Scope of this section
80.3
This section contains rules about–
(a) applications under section 6(1)(b) of the Act (application for permission to impose measures);
(b) references under paragraph 3(1) of Schedule 2 to the Act (reference of the imposition of measures imposed without permission); and
(c) appeals to the High Court under section 16 of the Act (appeals relating to a TPIM notice).
Application for permission to impose measures
80.4
An application under section 6(1)(b) of the Act for permission to impose measures must be made by the Secretary of State filing with the court –
(a) a statement of reasons to support the application;
(b) any relevant material of which the Secretary of State is aware at that stage;
(c) any written submissions; and
(d) the proposed TPIM notice.
Reference of measures imposed without permission
80.5
A reference under paragraph 3(1) of Schedule 2 to the Act of the imposition of measures imposed without permission is made by the Secretary of State filing with the court –
(a) a statement of reasons for imposing measures and for imposing the measures specified in the TPIM notice;
(b) any relevant material of which the Secretary of State is aware at that stage;
(c) any written submissions; and
(d) the TPIM notice.
Directions for hearing on an application for permission or on a reference
80.6
(1) If the court gives permission on an application under section 6(1)(b) of the Act or confirms a TPIM notice on a reference under paragraph 3(1) of Schedule 2 to the Act, the court must give directions for a directions hearing at which the TPIM subject, the TPIM subject's legal representative, the special advocate (if one has been appointed) and the Secretary of State's legal representative may be present.
(2) In a case where permission is given (following an application under section 6(1)(b) of the Act), the date to be fixed for the directions hearing must, unless the court otherwise directs, be no later than 7 days after the date on which the TPIM notice is served on the TPIM subject.
(3) In a case where the TPIM notice is confirmed (following a reference under paragraph 3(1) of Schedule 2 to the Act), the date to be fixed for the directions hearing must, unless the court otherwise directs, be no later than 7 days after the date on which the court confirms the TPIM notice.
(4) At the directions hearing, the court must give directions –
(a) for a review hearing under section 9(1) of the Act; and
(b) specifying a date and time by which the parties and special advocate must file and serve any written evidence or written submissions in accordance with rule 80.26.
(5) When giving directions under paragraph (4), the court must have regard to the need to expedite the review hearing.
(Rules 80.24 and 80.25 will apply where any closed material is filed by the Secretary of State).
Appeals under section 16 of the Act
80.7
Rules 80.8 to 80.11 apply to an appeal under section 16 of the Act (appeals relating to a TPIM notice).
Modification of Part 52 (appeals)
80.8
(1) Part 52 (appeals) applies to an appeal under section 16 of the Act, subject to –
(a) rules 52.3, 52.4 and 52.6;
(b) the rules in section IV of this Part; and
(c) paragraphs (2) and (3).
(2) The following rules do not apply to appeals under section 16 of the Act –
(a) rule 52.3, 52.4 and 52.6 (permission);
(b) rule 52.12 (appellant’s notice);
(c) rule 52.13 (responden’s notice); and
(d) rule 52.21 (hearing of appeals).
Notice of appeal
80.9
(1) The TPIM subject must give notice of appeal by –
(a) filing a notice of appeal with the court; and
(b) serving a copy of that notice and any accompanying documents on the Secretary of State.
(3) A notice of appeal may include an application under rule 80.15 for an order requiring anonymity for the TPIM subject.
(4) The notice of appeal must be filed with a copy of the TPIM notice imposing measures on the TPIM subject and (as relevant) –
(a) a copy of the extension notice, revival notice or variation notice that is the subject of the appeal;
(b) a copy of the application to the Secretary of State –
(i) for permission in connection with a measure specified in the TPIM notice,
(ii) for the revocation of the TPIM notice, or
(iii) for the variation of a measure specified in the TPIM notice;
(c) a copy of the Secretary of State’s decision on such an application.
(Attention is drawn to rule 80.14(1) relating to the address for issuing proceedings in the High Court).
Time limit for appealing
80.10
(1) Subject to paragraph (2), the TPIM subject must give notice of appeal no later than 28 days after receiving–
(a) the extension notice, revival notice or variation notice that is the subject of the appeal; or
(b) notice of the Secretary of State’s decision on an application for permission in connection with a measure specified in the TPIM notice, for the revocation of the TPIM notice or for the variation of a measure specified in the TPIM notice.
(2) In a case where the Secretary of State has failed to determine an application for permission in connection with a measure specified in the TPIM notice, for the revocation of the TPIM notice or for the variation of a measure specified in the TPIM notice, the TPIM subject must file the notice of appeal –
(a) no earlier than 28 days, and
(b) no later than 42 days,
after the date on which the Secretary of State received the application.
Secretary of State’s reply
80.11
If the Secretary of State wishes to oppose an appeal, the Secretary of State must, no later than 14 days after being served with the notice of appeal –
(a) file with the court–
(i) any relevant material of which the Secretary of State is aware at that stage; and
(ii) any written submissions; and
(b) serve on the TPIM subject any open material.
III APPEALS TO THE COURT OF APPEAL
Modification of Part 52 (appeals)
80.12
(1) Part 52 (appeals) applies to an appeal to the Court of Appeal against an order of the High Court in TPIM proceedings, subject to –
(a) rule 80.2;
(b) the rules in section IV of this Part; and
(c) paragraphs (2) and (3).
(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 80.9 and 80.11 shall apply with appropriate modifications.
IV GENERAL PROVISIONS
Address for filing proceedings
80.14
(1) Any TPIM proceedings must be filed at the Administrative Court Office, Room C315, Royal Courts of Justice, Strand, London, WC2A 2LL.
(2) Any appeals to the Court of Appeal against an order of the High Court in such proceedings must be filed at the Civil Appeals Office, Room E307, Royal Courts of Justice, Strand, London, WC2A 2LL.
Applications for anonymity
80.15
(1) The TPIM subject or the Secretary of State may apply for an order requiring anonymity for the TPIM subject.
(2) An application under paragraph (1) may be made at any time, irrespective of whether any TPIM proceedings have been commenced.
(3) An application may be made without notice to the other party.
(4) The reference in this rule to an order requiring anonymity for the TPIM subject is to be construed in accordance with paragraph 6(3) of Schedule 4 to the Act.
Notification of hearing
80.16
Unless the court directs otherwise, it will serve notice of the date, time and place fixed for any hearing on–
(a) every party, whether or not entitled to attend that hearing; and
(b) if one has been appointed for the purposes of the hearing, the special advocate or those instructing the special advocate.
Hearings
80.17
(1) The following proceedings must be determined at a hearing –
(a) a review hearing under section 9(1) of the Act (review hearing);
(b) an appeal under section 16 of the Act (appeals relating to a TPIM notice);
(c) an appeal to the Court of Appeal from an order of the High Court made in the proceedings mentioned in sub-paragraph (a) or (b) above; and
(d) a hearing under rule 80.25(2) (consideration of the Secretary of State's objection or application).
(2) Paragraph (1)(a) does not apply where the court discontinues the review hearing in accordance with section 9(3) of the Act.
(3) Paragraph (1)(b) does not apply where –
(a) the appeal is withdrawn by the TPIM subject;
(b) the Secretary of State consents to the appeal being allowed; or
(c) the TPIM subject is outside the United Kingdom or it is impracticable to give the TPIM subject notice of a hearing and, in either case, the TPIM subject is unrepresented.
Hearings in private
80.18
(1) If the court considers it necessary for any relevant party and any relevant party's 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 the relevant party’s 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
80.19
(1) Subject to paragraph (2), the Secretary of State must immediately give notice of the proceedings to the Attorney General (who, under paragraph 10(1) of Schedule 4 to the Act, has the power to appoint a special advocate) on –
(a) making an application under section 6(1)(b) of the Act (application for permission to impose measures);
(b) making a reference under paragraph 3(1) of Schedule 2 to the Act (reference of the imposition of measures imposed without permission); or
(c) 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 application, claim or appeal; 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 80.21.
(3) Where any proceedings to which this Part applies are pending but no special advocate has been appointed, a relevant party or the Secretary of State may request the Attorney General appoints a special advocate.
Functions of a special advocate
80.20
The functions of a special advocate are to represent the interests of a relevant party by –
(a) making submissions to the court at any hearing or part of a hearing from which the relevant party and the relevant party's legal representative are excluded;
(b) adducing evidence and cross-examining witnesses at any such hearing or part of a hearing; and
(c) making written submissions to the court.
Special advocate: communicating about proceedings
80.21
(1) The special advocate may communicate with the relevant party or the relevant party’s legal representative at any time before the Secretary of State serves closed material on the special advocate.
(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 (6)(b) or with 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 the Secretary of State;
(c) the Attorney General or any person acting for the Attorney General; or
(d) any other person, except the relevant party or the relevant party’s legal representative, with whom it is necessary for administrative purposes for the special advocate to communicate about matters not connected with the substance of the proceedings.
(4) The special advocate may request directions from the court authorising him or her to communicate with the relevant party or the relevant party's 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 the Secretary of State 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 closed material on the special advocate, but –
(a) the relevant party may only communicate with the special advocate through the relevant party’s 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 the special advocate may without such directions send a written acknowledgment of receipt to the relevant party’s legal representative.
Modification of the general rules of evidence and disclosure
80.22
(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 hearing or part of a hearing from which that party and that party’s legal representative are not excluded.
(6) A special advocate shall be entitled to adduce evidence and to cross-examine witnesses.
(7) The court may require a witness to give evidence on oath.
Filing and service of relevant material
80.23
(1) 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.
(2) The duty to search for, file and serve material under paragraph (1) continues until the proceedings in question have been determined.
Closed material
80.24
(1) The Secretary of State –
(a) must apply to the court for permission to withhold closed material from a relevant party or the relevant party’s 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, at such time as the court directs, serve on the special advocate –
(a) the closed material;
(b) a statement of the Secretary of State’s reasons for withholding that material from the relevant party; and
(c) if the Secretary of State considers it possible to provide a summary of 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 the Secretary of State’s objection or application
80.25
(1) This rule applies where the Secretary of State has –
(a) objected under rule 80.21(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 80.24 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 or she does not challenge the objection or application;
(b) the court has previously considered –
(i) an objection under rule 80.21(5)(b) to the same or substantially the same communication; or
(ii) an application under rule 80.24(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 or she must give notice of that fact to the court and the Secretary of State no later than the end of 14 days after the date the Secretary of State serves on the special advocate the notice under rule 80.21(5)(b) or the material under rule 80.24(2), or such other period as the court may direct.
(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 also –
(a) give brief reasons for their contentions in relation to each issue; and
(b) set out any proposals for the court to resolve those issues.
(5) A hearing under this rule shall take place in the absence of the relevant party and the relevant party’s 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 and the relevant party's 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, the relevant party and the relevant party’s legal representative –
(a) the Secretary of State shall not be required to serve that material or summary; but
(b) if the Secretary of State 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 is withdrawn from its consideration or that the Secretary of State makes such concessions or takes such other steps as the court specifies; 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.
(8) The court must give permission to the Secretary of State to withhold closed material where it considers that the disclosure of that material would be contrary to the public interest.
Order of filing and serving material and written submissions
80.26
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 any relevant material of which the Secretary of State is aware;
(b) the Secretary of State must serve on –
(i) the relevant party or the relevant party's legal representative; and
(ii) the special advocate (as soon as one is appointed) or those instructing the special advocate,
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 the special advocate any written evidence which the relevant party wishes the court to take into account at the hearing;
(d) the Secretary of State must file with the court any further relevant material;
(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 80.24 and 80.25 will apply where any closed material is filed by the Secretary of State).
Failure to comply with directions
80.27
(1) Where a party or the special advocate fails to comply with a direction of the court, the court may serve on that person a notice which states –
(a) the respect in which that person 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 special advocate fails to comply with the 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
80.28
(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 those 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 the Secretary of State for reconsideration of decision
80.29
(1) If 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,
then 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.
(2) The Secretary of State may, within 5 days of being served with notice under paragraph (1), apply to the court to reconsider the terms of the order or direction or to review the terms of the proposed judgment if the Secretary of State considers that –
(a) the Secretary of State’s 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.
(3) Where the Secretary of State makes an application under paragraph (2), the Secretary of State 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 (1).
(4) Rule 80.25 (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 (2) of this rule.
(5) 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 (2) has expired.