England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Wilkie
[2009] EWHC 3053 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2011

Lord Justice Laws :

INTRODUCTION

1. This is an appeal against the decision of Wilkie J given on a statutory review pursuant to s.3(10) of the Prevention of Terrorism Act 2005 ("the 2005 Act") of a control order first imposed by the Secretary of State upon the appellant on 21 June 2007, and renewed in June 2008 and again in June 2009. Permission to appeal was granted by the judge below. Wilkie J delivered three judgments in the case, one open, one in camera and one closed.

THE STATUTE

2. The judge set out the material provisions of the 2005 Act and it is convenient to replicate them here. The preamble describes the Act as

"An act to provide for the making against individuals involved in terrorism related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity . . ."

S.1(1) of the Act defines a control order 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."

S.1(2):

"The power to make a control order against an individual shall be exercisable -

except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State".

Such a control order, that is one made by the Secretary of State, is called a "non-derogating" control order. S.2(1) provides that 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."

S.2(4):

"A non derogating control order -

a) has effect for a period of twelve months beginning with the day on which it is made; but

b) may be renewed on one or more occasions in accordance with this section."

S.2(5):

"A non derogating control order must specify when the period for which it is to have effect will end."

S.2(6):

"The Secretary of State may renew a non derogating control order (with or without modifications) for a period of twelve months if he -

a) considers that it is necessary for the purposes connected with protecting members of the public from a risk of terrorism for an order imposing obligations on the controlled person to continue in force; and

b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism related activity."

S.3 provides in part:

"(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.

(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.

. . .

(10) On a hearing in pursuance of directions under subsection (2) (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)… 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)… that a decision of the Secretary of State was flawed its only powers are –

a) the power to quash the order

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

c) the 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."

THE APPROACH ON THE CASES

3. The approach which the court is to take to the requirement imposed by s.3(11), that it should apply judicial review principles, has been explained by this court in MB [2007] QB 415 [2006] EWCA Civ 1140 per Lord Phillips of Worth Matravers CJ (as he then was) at paragraphs 41-46. In particular:

"44…[A] purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed…

46. For these reasons we consider that section 3(10) can and should be 'read down' so as to require the court to consider whether the decisions of the Secretary of State in relation to the control order are flawed as at the time of the court's determination."

Later in the judgment Lord Phillips continued:

"60. Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the acts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism related activity. Thus far we accept Mr Starmer's submission as to the standard of the review that must be carried out by the court.

. . .

64. The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to record such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instance: SSHD v Rehman [2003] AC 153, Ireland v United Kingdom [1978] 2 EHRR 25.

65. Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive, and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order 'with the consent of the controlled person' envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations."

4. In an earlier case, O'Hara [1997] AC 286, 298, Lord Hope of Craighead had explained the notion of reasonable suspicion as follows:

"…In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed.

…

The question is whether a reasonable man would be of that opinion having regard to the information which was in the mind of the arresting officer."

THE CONTROL ORDER IN THIS CASE

5. The control order imposed upon the appellant presently constrains him by means of the following restrictions:

a) a requirement that he move out of his family home and reside at a particular address each night,

b) an eight hour curfew requirement,

c) a tagging requirement,

d) a severe restriction upon the number of individuals he may permit to enter the place where he is residing,

e) a requirement that he meet with no persons outside his residence without prior arrangement with the Secretary of State, and

f) a requirement to allow police officers and other authorised persons to enter and search his residence at any time.

These restrictions are plainly severe. There are impact statements before the court which evidence the appellant's deteriorating personal relationships said to be due to the rigours of the control order regime.

6. In such circumstances it is no surprise that our courts have insisted on high standards of procedural protection in relation to the imposition and monitoring of control orders. Although in MB [2008] 1 AC 440 the House of Lords rejected an argument that control order proceedings involve the determination of a criminal charge for the purposes of Article 6 of the European Convention on Human Rights (ECHR), their Lordships nevertheless made it plain that "in any case in which a person is at risk of an order containing obligations of the stringency found in this case . . . the application of the civil limb of Article 6(1) does . . . entitle such person to such measurable procedural protection as is commensurate with the gravity of the potential consequences": per Lord Bingham, paragraph 24, citing other cases. In the same case Lady Hale stated at paragraph 65 that it was likely that the Strasbourg court would "apply very similar principles [to control order proceedings] as those applicable in criminal proceedings".

WILKIE J's CONCLUSIONS

7. Before introducing the grounds of appeal I should emphasise that at the core of Wilkie J's judgment are his conclusions that the appellant (who gave oral testimony before him) (a) was a determined and systematic liar and (b) posed a very high risk to national security. As regards (a) the judge said this at paragraph 193 of his open judgment:

"Furthermore, I have had the opportunity of seeing and hearing AM give evidence. In so doing, he is, in my judgment, highly intelligent, calm and cautious beyond his years. He was only prepared to say in oral evidence whatever was contained in his written evidence. He is strong minded and disciplined. In the face of the overwhelming evidence against him, his firm consistent denials are, in my judgment, simply untrue. They have been maintained with a degree of calmness and self confidence which, in my judgment, is consistent with the view of the Security Service that he is a disciplined, trained and committed person whose commitment remains unimpaired."

As regards both (a) and (b), the open judgment has this at paragraph 216:

"In my judgment, having reviewed the evidence and having had an opportunity to assess AM, the level of seriousness of the risk he poses is very high. In my judgment there is overwhelming evidence that he was a person prepared to martyr himself and, in so doing, to kill large numbers of other people. In his dealings with the SSHD and the court, in my judgment, by his denial of any past involvement in terrorist related activity and of any intent so to be involved in the future, he has repeatedly, systematically and carefully lied. It is my judgment that he is an intelligent, capable, well-trained individual who remains committed to terrorist activity. His past involvement has involved the use of electronic communication including by mobile telephone. The fact that, save for two matters, there are no open allegations of breach by him of the terms of the control orders does not, in the light of the foregoing, persuade me that he is a person for whom a light touch series of obligations is remotely appropriate. In my judgment the SSHD was entitled to impose more onerous obligations than were initially imposed."

THE GROUNDS OF APPEAL

8. There are five grounds of appeal. The first three allege a want of procedural fairness on the part of the judge or the Secretary of State. The fourth and fifth assault the decision-making process leading to the imposition of the control order.
9. I should say at once that I propose to deal with this appeal very shortly. I have concluded that there is nothing whatever in any of the grounds. Wilkie J went into the case in very great detail and the reasoning in all three of his judgments is meticulous and compelling. He did not grant permission to appeal out of concern for any specific legal issue whose resolution he considered required the attention of this court. He gave reasons as follows:

"This matter should be ventilated before the Court of Appeal because of its importance and the rarity of decisions at this stage of the process."

The arguments advanced on the appellant's behalf were ordered somewhat differently before Wilkie J (see paragraphs 144 – 148 of the open judgment). The essence of what are now Grounds 2 – 5 were however before him. (Ground 1 of course offers criticisms of the conduct of the proceedings before Wilkie J himself). I see no purpose in replicating Wilkie J's full and careful analysis of the facts and evidence, much of which is to be found in his closed and in camera judgments which I will not repeat (in what would have to be like formats). The open judgment gives an ample overview of the case. There follow my conclusions on Ground 1, and a brief treatment of the other grounds, specifically touching on some aspects which seem to me to deserve emphasis.

PROCEDURAL FAIRNESS – GROUND 1

10. Ground 1 asserts that the judge denied the appellant a fair opportunity to address the case against him in the course of his oral evidence. It has two elements. First it is said that the appellant's examination in chief was unjustly and wrongly curtailed. Secondly it is said that the Secretary of State's case was not put, or not properly put, to the appellant in cross-examination. The first of these complaints cannot survive a reading of the transcript of the oral testimony. It is entirely plain that the judge did no more than bring to a close the rehearsal of evidence which had already been fully set out in the appellant's witness statements. When he was re-examined the appellant was given a further opportunity to address the overall security assessment to the effect that he had been and still was ready and willing to "martyr" himself.
11. The second aspect of Ground 1 is closely connected to the first. The appellant's open and in camera skeleton argument (9 November 2010, paragraph 35) lists seven particular matters which it is said were not put in cross-examination but should have been. To a very considerable extent these mirror paragraphs 28 – 31 of the seventh open written submission of the Security Service, of which of course the appellant had notice and which the Security Service witness V indicated (see Wilkie J's open judgment paragraph 113) formed the heart of the case against the appellant. The judge gives a full description of this statement at paragraph 51 of his open judgment, ending with a direct quotation of paragraphs 28 – 31 of the Security Service submission. I will set out the whole of paragraph 51:

"51. The seventh statement on behalf of the Secretary of State was dated April 2009. It contained a summary of the outcome of the transatlantic airline plot trial in September 2008, in particular, that AY had been acquitted, that three named individuals had been convicted and that, in the case of the remainder, there was a failure to agree a verdict and a retrial was scheduled for 2009. The statement went on to highlight AY. It stated that, despite his acquittal, the assessment was that AY continued to pose a significant threat to the national security. It summarised his evidence at his trial to the effect that his relationship with the others, said to be part of the plot, was for the purpose of his obtaining a false British passport. He had also stated that he was in contact with an individual named 'Izzy' who lived 'up north' and whom AY was arranging to meet to assist AY in obtaining a false passport. The statement continues that the Security Service did not accept that explanation and strongly assessed that AY was a senior member of the plot and was preparing to travel up north to provide 'Izzy' with operational detail so that he could carry out an attack as part of the overall plot. It goes on to state that the Security Service strongly assessed that the individual named Izzy was identical with AM. It then summarised certain parts of AY's evidence and his cross-examination. This included evidence in relation to encoding telephone numbers. It included his evidence that a call, listed as having been made on 9^th August at about 22:08 hours, was made to a number ending with 235 for 83 seconds. It records that AY's evidence was that this number belonged to 'somebody up north' who could help him obtain a British passport, and whose number he obtained from a relative in Pakistan. It contained the assessment of the Security Service that AY was intending to meet Izzy to provide him with details on his role in the plot. It also asserted that AY had been passed a video camera to take with him up north so that he could help Izzy film his martyrdom video. It also set out the assessment that Izzy is identical with AM and that AM was the individual whom AY arranged to meet in August 2006. It then sets out the Security Service assessment of AM's involvement in the transatlantic airlines plot in the following terms:

'28. The Security Service assesses that AM was waiting for operational tasking in relation to an unspecified attack against US/UK targets after he returned from Pakistan in December 2005.

29. The Security Services assess that this operational tasking was to have been provided by AY, and that the purpose of AY's contact with AM was to organise travel to the northwest of England and brief AM on his role in the plot, instruct him in the construction of IED's and record a martyrdom video that would have been forwarded to Al Qaeda in Pakistan for transmission after the planned attacks.

30. Further, the Security Service assess that despite AM's immediate intentions being disrupted by AY's arrest, he remained willing to conduct an attack. This assessment is based on AM's subsequent engagement with individuals who were involved with AQ.

31. The Security Service continues to assess that if AM were not subject to a control order, he would pose a serious risk to the national security of the UK given his involvement with the transatlantic airlines plot and the training he is assessed to have received in Pakistan.'"

12. The appellant made no less than nine witness statements (the ninth, as I understand it, made with the judge's permission after re-examination). The core allegations made on behalf of the Secretary of State, including those expressly identified in counsel's skeleton argument and all the details fully described in the Security Service submissions (not least the seventh), were made known to the appellant in the clearest terms. He flatly denied all these allegations. His unequivocal position was simply to stand upon what he had said in his statements. There is no possibility whatever that he was not fully aware of the case against him and had every proper opportunity to deal with it. This ground is fanciful.

PROCEDURAL FAIRNESS – GROUND 2

13. Ground 2 overlaps with Ground 1. It is to the effect that the Secretary of State failed to place the best evidence of the relevant facts before the court and, more generally, to provide material which might properly have assisted the appellant. Reference is in particular made to s.4 of the Civil Evidence Act 1995 which requires a court to have regard to any circumstances from which any inference may reasonably be drawn as to the reliability or otherwise of hearsay evidence. Aside from anything else, it is plain that this provision has no application in these control order proceedings. CPR 76.26 disapplies CPR Parts 32 and 33. Witnesses may give evidence orally or in writing. The court has a general discretion to admit documentary evidence in any form and may receive evidence otherwise inadmissible in a court of law.
14. Overall, the plain fact is that everything was disclosed to the appellant that properly could be disclosed. So far as considerations of national security constrained the possibilities of disclosure, the appellant had the assistance of a Special Advocate who conducted his case in closed session. The appellant was able to seek further disclosure as advised. Oral evidence was given on behalf of the Security Service, and those representing AM (including the Special Advocate) were able to challenge and probe this as necessary. The learned judge below said this:

"188. I reject the contentions of the open and closed advocates for [the appellant] that, in particular, the gist served in July 2009 is insufficient to discharge the Article 6 burden. I have summarised these in the in camera judgment. He also knows that the view of the Security Service is that he remained willing to conduct an attack notwithstanding AY's arrest and disruption of the airline plot.

189. In my judgment, the statements of the case against him set out clearly the allegations which are at the crux of the case against [the Appellant] and provide sufficient detail to enable [the Appellant] to give instructions effectively to enable his case to be put by his advocates. [The Appellant] in his oral evidence and in his written evidence has responded fully to these contentions by denying that he ever used phone 235, thereby denying the basis upon which it is said he was Izzy."

15. It is entirely obvious, as I have already made clear, that the appellant was fully aware of the case against him and had every proper opportunity to deal with it. There is no more to Ground 2 than there is to Ground 1.

PROCEDURAL FAIRNESS – GROUND 3

16. This ground was to the effect that the Secretary of State was obliged but failed to make yet further disclosure. It fails for like reasons.

MATERIAL CONSIDERATIONS – GROUND 4

17. The thrust of Ground 4 is that the Secretary of State imposed the control order in ignorance of material considerations: matters of which, so it is said, he should have been informed, in particular by the Security Service. They included the suggestion that the Security Service had itself made approaches to the appellant. I agree with the judge's reasoning on this ground without qualification. In particular I concur with the judge's view that the Secretary of State did not fail to pay attention to any matter which he was obliged to consider in arriving at his decision to make the control order. I should set out paragraph 198-203 of the learned judge's open judgment:

"198. I have considered whether the decision of SSHD is flawed because of improper delegation to the Security Services. I am satisfied that it is not. It is plain that the Security Services has had significant input in terms of the provision of evidence and advice to the Secretary of State, but it is also clear from the evidence of Susan Hadland that the final decision is that of the Secretary of State's, and that it is not inevitable that the Secretary of State accepts the advice given by the Security Services.

199. It is said that the Secretary of State failed to pursue various lines of enquiry, such as the impact of AY's trial result, looking at the full phone record, making enquiries about the renewal of the passport, the statements made by AM himself after the imposition of the first control order and his evidence of the alleged approaches made by the Security Services to his family and friends, who it is said expressed surprise that the contention that he was involved in terrorist activity.

200. I have already indicated that the outcome of AY's trial has very little, if any, relevance to these issues for the reasons I have indicated.

201. The phone, open and closed, evidence as to the identity of Ismail, the holder and user of phone 235, was the best evidence. In those circumstances, whatever other records might have been of use of that phone at an earlier usage, the Secretary of State had evidence that AM used that phone for terrorist related purposes. She also had the evidence, already referred to, that AM claimed to be Ismail when stopped by the Royal Navy.

202. As for the renewal of the passport, the Home Office was able to obtain information about the expiry date of his original passport.

203. As for his witness statements and the alleged approaches to him made by the Security Services: AM's continued and continuing denial of any involvement in the airline plot, or any intention to be involved in terrorist activity, whether in his witness statements, or from the views of those who claim they have been approached by the Security Services could add nothing in the face of the overwhelming evidence of his past involvement and future intentions. I have considered these matters and the view to which I have come is the same as that of the SSHD."

18. There is nothing in ground 4.

IMPROPER PURPOSE – GROUND 5

19. Ground 5 was summarily described by the learned judge at paragraph 204 of his open judgment thus:

"It is said that the evidence of [the Appellant] discloses that the Security Services either fabricated the case against him, or used the control order as a tool, in either case for the purpose of persuading him to become an informant against Al Qaeda."

20. I am entirely satisfied that the control order was not imposed for a legally improper purpose. The learned judge said this at paragraphs 205-207 of the open judgment:

"205. The case of fabrication has scarcely been advanced, except through AM's evidence. The more significant argument is that it is said that the Security Service's assessment is wrong but, nonetheless, they have used the threat of a control order as a lever to try to persuade him to become an informant, even though they may not have believed that he posed a threat such as to justify a control order. There is the alleged use of threats of what might happen to him or his family if they were to go abroad. He is allegedly told that he is running out of time to talk to them pending legal proceedings. They have allegedly said that Al Qaeda would no longer be interested in him and that the Security Services did not think that he was a particularly dangerous extremist. They allegedly offer him a future which would be exciting and rewarding and make veiled hints of money to be available for him if he were to speak to them about Al Qaeda.

206. In my judgment, having heard all the evidence I am satisfied that the decision to impose the control order did not involve any ulterior purpose. The Security Services have a number of functions, the principal of which is securing the safety of the state. The making of a control order by the SSHD, based on evidence obtained and advice given by the Security Services, is one only of the tools available. There is no obligation on the Security Services to advise that a control order be made at any particular point in their investigation of an individual. There are other options available, for example, to prosecute him.

207. Without confirming in this instance whether or not AM was in fact approached, as a matter of principle, in my judgment, in discharging their function of assessing and advising SSHD on risks that individuals pose the Security Service would be entitled to have regard to the extent, if any, of their willingness to engage with them, or to admit what they have done in the past, or to give them information about their activities and the activities of those of whom they were aware, or to their willingness to turn away from such activity in the future. In any event, decisions are taken by the Secretary of State and not the Security Service. Accordingly, I reject the contention that the Secretary of State's decisions were unlawful, as having been made for an ulterior purpose."

21. There is with respect nothing in the submissions of Mr Moloney QC for the appellant, nor in those of Mr Khamisa QC, who addressed us briefly as special Advocate, which begins to dislodge the judge's clear conclusions.

CONCLUSION

22. I would dismiss this appeal.

Lord Justice Jackson :

23. I agree.

Lord Justice Tomlinson :

24. I also agree.