England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 August 2007

Ouseley J :

1. The SSHD made a Control Order against AL under the Prevention of Terrorism Act 2005 on 12 December 2006, after permission to do so was granted by Collins J. The Order was served on AL on 28 December 2006. This is a hearing under s3(10) PTA, in which it is the function of the Court to decide whether the decisions of the SSHD, that he had reasonable grounds for suspecting that AL was involved in terrorist-related activity and that a Control Order with the restrictions and obligations which it imposed were necessary, were flawed. If a decision is flawed, the Court can quash the Order or one or more of the obligations in it, or direct its revocation or modification; otherwise the Court must order that the Control Order remain in force. I have ordered that the Applicant be referred to as AL in these proceedings.
2. Under s2(1) PTA, the SSHD can only make a Control Order where he has "reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity", as defined, and considers it "necessary" to make the Order "for purposes connected with protecting members of the public from a risk of terrorism". "Terrorism", as defined, does not have to be directed in or at the UK, or its nationals. The obligations and restrictions which s1 permits, and there is a wide range, can only be imposed if the SSHD considers them "necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity."
3. AL is a UK national aged 33, born in Lancashire. About 8 years ago, AL married. He now has 3 children, with a fourth expected at about the time of the hearing. He and his wife had separated before service of the Control Order, and the children are at present living with his wife in Manchester. At the time when the Control Order was served and until AL was arrested in January 2007, the children lived with him.
4. The Security Service noted that AL admitted to having a conviction when he was 17 for fraud and robbery leading to 10 months detention in a Young Offender Institution. AL was also convicted in 2006 of possessing cannabis and heroin for which he received a conditional discharge. He was a known user of Class A drugs but it was not thought that his criminal or drugs activity were related to his alleged extremism.
5. The first allegation against him is that he was involved in the radicalisation of one AK, who left the UK, it is assessed for Pakistan, shortly after the service on him of a Control Order on 3 January 2007. (I refer to him as AK because an anonymity order remains in force as part of the permission granted to serve the Control Order on him.) He left in breach of the Order. Second, it is said that AL has a strong intention of travelling abroad in the near future to participate in terrorist activity, probably training and fighting in the Afghanistan/ Pakistan border area, then perhaps returning to the UK to engage in terrorist related activity here. As the case developed the second point became the more significant. The aim of the Control Order is to prevent his travel abroad and to limit the opportunities he has to influence British Muslims.
6. The restrictions and obligations in summary are:

•    residence at a particular address with changes and overnight stays elsewhere to be notified by him; this was the address where he was already living and to which he had recently moved,

•    daily reporting to a police station,

•    permitting entry to the police or other authorised persons for the purposes of search and verifying compliance with the Order,

•    surrender of passport and other travel documents, and none for international travel to be applied for,

•    prohibition on going to any airport, seaport or railway station with international services without prior permission,

•    prohibition on leaving Great Britain,

•    prohibition on contacting AK or any other person subject to a Control Order notified to him by the SSHD,

•    provision to the SSHD of details of any employment.

The justification for these provisions in the Order is very general.

7. AL provided a short witness statement denying the allegations in general terms, denying that he had ever been involved in terrorism related activity; he did not give oral evidence. At the opening of the case, further material was disclosed to the Respondent following my ruling under Part 76.29 CPR on the recent third Security Service statement. This led to a further statement from AL dealing with that specific material as well as some other material already before the Court. Mr Davies QC for AL did not cross-examine witness N, the Security Service witness, or Ms Byrne the senior Home Office official who dealt with the procedural background to the Order. He made no submissions in detail as to the security case against AL citing the unfairness of the procedure, in which AL could not see more than the limited evidence disclosed to him. But he did draw attention to aspects of the security case for the Court to consider. He also made submissions about the import, or rather lack of it, of some of the recently disclosed material. The security case was challenged in closed session by Mr Jay QC, AL's Special Advocate.
8. No issue arises as to whether this Order is outside the powers of the SSHD as a deprivation of liberty; it plainly is not. No issue was raised as to the compliance by the SSHD with the relevant procedures in the Act. Mr Davies contended in a very general way that the Order was disproportionate and unlawful; it was for the Court to satisfy itself that the Order and its requirements were necessary. It was not necessary because AL was currently in prison on remand awaiting trial on charges including aggravated burglary which were not related to the subject matter of the Control Order. The restrictions were in any event unnecessary, even accepting the SSHD case, because ordinary surveillance by the Security Service or police could prevent his travel and undesirable contacts.
9. Mr Davies also contended that the Order breached Article 6 in view of the limited disclosure of the case against AL, and because these were criminal proceedings. He recognised that he could not advance those points with any prospects of success in the light of the Court of Appeal authorities, in advance of the decision of the House of Lords on appeals currently before it. In effect he reserved the right to argue all points arising out of those decisions which might be helpful to him if my judgment had not been delivered by then.
10. The issues before me therefore are whether reasonable grounds exist for suspecting that AL is or was involved in terrorist–related activity and if so whether this Order and all its restrictions are necessary. I shall adopt the approach to this aspect which I set out in paragraphs 7 and 131 of my decision in SSHD v AF [2007] EWHC 651 Admin, which applies SSHD v MB [2006] EWCA Civ 1140 paras 60-67.
11. I deal first with the allegation that AL was involved in radicalising AK. AK was 22 in December 2006. He is a UK national who lived in Manchester. On 18 October 2006, his mother complained to the Greater Manchester Police about the influence which she said AL was having over her son, and was interviewed by them. Over the last three or four months before that, she said, AK had changed from a nice boy studying pharmacy, but he had failed his second year exams. He had met AL either in the mosque or at her husband's garage. AL had influenced her son, "brainwashed" him so that he stayed out late, went to meetings, and regarded Britain as his enemy. He did not want to continue at university or see his old friends. AL would give him money, food and clothes, let him use his car, and was going away with him for 4 months. AL had turned AK against his parents and their influence. She was worried that AL was turning AK to violent extremism. The Security Service acknowledged that AL had known AK's father for some time and that there was hostility between the two which could not be wholly attributed to the view expressed by AK's mother, and which I infer the father shared, about the role played by AL in radicalising AK. AL admitted that he knew AK, having met him in late summer 2006, and that they became friends.
12. The Security Service concluded in December 2006 that AL and AK were intending to travel abroad soon, notwithstanding the problems faced by AL as a result of his wife departing the matrimonial home, leaving him with the three children to look after on his own. The SSHD had intended to serve Control Orders on the two at the same time to prevent either from absconding, and delayed for two weeks after 12 December 2006 in serving AL because AK could not definitely be located. He was ordered not to meet or contact AK. AK was served on 3 January 2007, a few days after AL. AK was required to surrender his passport and not to leave the country; his Control Order mirrored AL's. AK immediately absconded, it is assessed for Pakistan and for the purposes of terrorist-related activity. I accept that those assessments are soundly based.
13. Although the Security Service initially assessed that AL had been "heavily" involved in the radicalisation of AK, the Security Service accepted in its Second Statement that, although alleging that AL had played a role in radicalising him, he had not been the main influence in that respect. AL's role had been rather that of encouragement, support and advice to AK, exercising significant control over him, and distancing him from his family's influence over the months leading up to his departure. I accept that is the more accurate description of the relationship between the two to be drawn from the SSHD's evidence.
14. The Security Service also accepts that, after service of the Control Order on him, AL reported to the Greater Manchester Police telephone calls made to him by AK before his departure for Pakistan; AL was trying to conform to his Control Order. It was not alleged against AL that he had been instrumental in organisingAK's travel to Pakistan or in helping him abscond. He was arrested and questioned about that but was not charged. Another individual, whom I shall denote as X, is facing trial in connection with that; I have made an Order under the Contempt of Court Act 1981 in respect of reporting any material which could identify him before the conclusion of his trial.
15. In his statement, provided on the last day of the hearing, AL commented further on what AK's mother had told the police in the October 2006 interviews, material which he had had for a few weeks. She had told them that her son was planning to go on "jamaat", a four month religious progress from mosque to mosque, involving preaching, prayer and learning, as AL correctly described it and often undertaken by young men. It does not have to involve foreign travel. AL said that in October 2006 he and AK were planning to go on jamaat together in the UK, not abroad, starting at the mosque in Dewsbury. His wife and other family members had given him permission to go. AK's parents disapproved and so AK told them that he was going to London which AL said caused them to panic, to believe that their son was going to leave the country and to go to the police to make allegations about AL. Notwithstanding what AL said about AK's parents' fear of AK going to London, he also said that AK's father had been offering AK money to go back to university to retake his exams and money to go on jamaat abroad.
16. AL continued to deny that he had brainwashed or influenced AK, adding that the jamaat organiser had told him that AK had changed before AK and AL had met. He does not say when or in what way AK had changed, but it is clear that there had been a change and the tenor of the statement is that the change was one of which the parents disapproved, because AL's comment is by way of denying that he was responsible for it. AL also says that AK's parents wanted to control every aspect of his life; he had criticised his parents as "control freaks" and wanted to get away from them. AL thinks that this proposed jamaat may have been misinterpreted by AK's parents, perhaps even deliberately so suggested Mr Davies, for travel abroad for terrorist purposes. (Curiously, given that allegation, neither statement refers to any other possible cause of hostility betweenAK's parents and AL).
17. AK had gone to Dewsbury mosque to start the jamaat without AL, because AL did not have the money; AK was never given permission by the organiser to join it, and although AK was on jamaat when the police were looking for him, his jamaat was "terminated by the community leaders in Dewsbury", according to AL.
18. I have considered, as one of Mr Davies' points, whether AK's mother may have made her report at a time of heightened fear and through misconception. I accept that she overstated the effect of the relationship with AL on how and when her son became radicalised, as the change in the second Security Service statement indicates. But she is right, and his departure confirms it, that he had become radicalised and that AL was an important influence over him from the time they met, in relation to acting on his radicalised views. Mr Davies also suggests that AK's conduct might be consistent with ordinary criminal conduct, especially in view of his association with AL. In my view what AK did and intends has nothing to do with ordinary criminal conduct, nor did what the SSHD relied on against AL.
19. AL's statements are silent about any motivation behind AK's going abroad after service of the Control Order, and doing so immediately, and whether or not this had any link to any earlier plans. AL simply says that he himself had been making no preparations for foreign travel. I found it surprising that the first statement made no mention of the discussions and plans between them about jamaat. AL was keeping a watchful and careful silence in my view about anything which was not expressly raised by the SSHD. He said in his first statement that he is hamstrung by not knowing what is in the closed evidence, but this statement is brief to the point of being wholly uninformative concerning this relationship, which he knew was a focus of the SSHD's case.
20. I accept that part of what AL says is true: he and AK were friends who were planning to travel together; jamaat was discussed between them and may well have been part of their intentions, whether in part genuine or in part as a cover for travel and departure from Manchester. There had been the change in AK about which his parents were concerned, for which others were more responsible than AL. AK did object to his parents' attitude towards him.
21. But I reject AL's claim that he had had no influence over AK, and had never heard AK express any extreme views. I do not think that is the result of a difference about what is meant by "extreme views". AL knew that AK's purpose in travelling to Pakistan was terrorist-related, and in the months after they met had influenced him in that direction, encouraged and supported him. There is further material, notably a letter, which supports that, which I deal with in the course of the second allegation. Although AK saw his parents' concern as controlling, I accept that AL played an important role in distancing AK from his parents. The friendship was not as between equals. The Security Service's revised description of his role is substantially correct, notwithstanding what AL says.
22. The SSHD accepted that the open evidence alone did not contain sufficient material to show that he had reasonable grounds for his conclusions on the first allegation. Taking all the evidence, open and closed, he has more than reasonable grounds and is probably right in this first allegation.
23. The second and in the end the more important allegation against AL was that by December 2006, he too intended to travel abroad in the near future for terrorist-related purposes, probably including training, with the risk that he might return to Britain to engage in terrorism-related activity. The Security Service assessed in July 2007 that that remained AL's intention at least as a longer term intention and despite his broad adherence thus far to the terms of the Order.
24. On 23 January 2007, Greater Manchester Police arrested AL, X, and another man in connection with the provision of materials which would be of use to a terrorist and as part of the investigation into the departure of AK for Pakistan. The three were associated with each other and with AK. When X's home address in Manchester was searched, a letter was found which referred to fighting coalition forces in Afghanistan. It referred, as the Security Service in my view with ample justification assessed, to AL and AK, inviting them to join the author and associates of AL and AK in the Pakistan/Afghanistan border area to train or to fight coalition forces.
25. This letter is some evidence that AL and AK shared an intention to travel to Pakistan for terrorist-related purposes. Their associates would know of their outlook and intentions. If that was AK's intention, AL would have known of it. AL simply denies that he wishes to travel abroad for terrorist-related purposes. His denial that he was making any plans for going abroad at all is simply untrue. AL has failed to deal with the open allegations.
26. AL denies that he is the individual referred to in the letter by what he says rightly are very common names; he makes no reference to whether "brother [AK's first name]" is AK. There is more disclosed than his name in that letter to identify one individual as AL, to which AL makes no answer. He denies knowing the author, whose name was not disclosed. The Security Service second statement as amended in July identified X as an associate of both AL and AK. No statement from AL deals with those associations, or any others which the two had in common. The existence of closed evidence does not impede him dealing with open allegations. The name of a further associate of AL's, Awan, was disclosed at the start of the hearing. It may have been oversight that the statement responding to the disclosures made at the start of the hearing did not deal with Awan.
27. Among the material disclosed at the start of the hearing were DVDs of two videos found when police in January 2007 searched AL's former residence, which had been vacant since his departure. One was a propaganda video lauding Ibn Khattab, leader of the Chechnya Mujahideen, killed some years ago now. AL said that he knew nothing of it. Not all the videos which he had left behind belonged to him. No great significance could be attached to this video, in my view, even if it did belong to AL or had been borrowed by him.
28. The other was a holiday video of AL in Pakistan in 2002/3, he said; he had gone on holiday with his mother, sister and their children but not with his wife and their children. He had not re-viewed it but remembered it quite accurately. It showed him being instructed in handling a shotgun, quite informally and briefly in a house with a child present and using it while hunting with a friend. Handling a shotgun, as he said, would not be unusual in Pakistan. There are indications of security consciousness in the video: the name of one of those present is not to be mentioned nor his face shown, which does not quite fit with the innocent explanation. However, I cannot accord it any real intrinsic importance in this case.
29. The SSHD accepted that the evidence disclosed to AL did not by itself give reasonable grounds for his conclusions about AL on this allegation. However, again, I am entirely satisfied that the SSHD has reasonable and indeed more than reasonable grounds for his conclusions when all the evidence, open and closed is taken together. This allegation also is probably right.
30. These two allegations are the core allegations against AL. He knows of them and has seen some of the material which supports them. On the basis of the tests in MB, there is no breach of Article 6; see AF. Nor is this a criminal matter. The allegations fall at least within the scope of s1(9) (c ) PTA 2005 so far as the support to AK is concerned, and within s1(9) (a) so far as AL's own travel abroad is concerned. The allegations could also be brought within other subsections.
31. The Order is obviously necessary to prevent AL's travel and his contacting AK and to provide some control lest he try to undertake such activities with others. Mr Davies suggested that the Order was not necessary because AL was in custody on remand, albeit that he was seeking bail; the need for the Order would have to be reviewed were he released. I do not regard the soundness of the conclusion that an Order is necessary as depending simply on whether, when made or at the date of hearing, the controlled person is in custody. Indeed, such a person might be in custody for breaching the Order, which would prove an unusual way of showing that it was no longer necessary. Of course, the fact that an individual is in custody cannot be ignored; it may be decisive if the probable duration of imprisonment is known and would cover all or by far the greater part of the duration of the Order. I was not very persuaded by Mr Eicke's comment for the SSHD, true though it may be, that the SSHD would not necessarily be told of the release of any particular individual, even if the release is ordered by another department of State. But it seems to me that, with the prospect of a bail application quite soon, and a trial date later this year, the present location of AL does not mean that the provisions had become unnecessary such that the Order should be quashed or its revocation now ordered, simply for it to be re-imposed on release on bail or after acquittal or a non-custodial or short sentence.
32. There was no challenge, through cross-examination of either SSHD witness, to the restrictions within the Order were I to accept that the allegations had been made out. I do not find Mr Davies' suggestion, that the ordinary practice and powers of the Security Service and police would suffice to keep a sufficient watch on AL's movements and contacts, persuasive. It was without evidential support and was not put to witnesses. The comparative lightness of the restrictions did not seem to me to support his argument. I do not consider that a mere surrender of the passport and a reporting requirement suffice. I regard it as perfectly clear that the restrictions which together build up to prevent AL travelling out of the UK, and control his freedom of movement, are justified by the need to prevent that travel. The restrictions as a whole also limit his ability to repeat with others the relationship he developed with AK, which is justified as well.
33. AL, in his witness statement, said that the Control Order was "destroying his life"; there was no elaboration and no further statement dealing with those matters was served. Mr Davies said that although the restrictions were quite light, it was the stigma of having been identified as a terrorist which had had this effect. I accept that being under a Control Order to the extent that that is known among his family, friends and acquaintances may stigmatise him among some of them. That apart, what AL says is clearly nonsense unless of course the whole aim of his life was to go to abroad for an unstated purpose. The restrictions are not so severe as to warrant any such description. He accepts that his wife left him for personal reasons, depression of a sort as he puts it, before the Control Order was served. The fact that the children do not live with him is not the consequence of the Order. He was not in employment and there is no restriction on the type of employment he could undertake.
34. There is no disproportion between the effect on AL and the need for the Order itself and the various restrictions it contains.
35. I have applied the law as it stands as the result of the Court of Appeal decision in MB and I have applied to Article 6, fair hearing, what I said in AF. Of course, the decision of the House of Lords, now awaited but not expected before October, may change all or any of that.
36. I discussed with the parties whether I should wait until their Lordships' decision, and the parties' consequential submissions, before delivering this judgment. But as my own judicial commitments would postpone that until late November/early December, the parties were in agreement that I should not await that decision.
37. The SSHD will have to consider his position in the light of that Judgment. But for the reasons I have given the Order is upheld as it stands.