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
		04/10/2007

Mr Justice Beatson:

Introduction

1. This is an appeal bought by Mahmoud Abu Rideh under section 10(1) of the Prevention of Terrorism Act 2005 ("the 2005 Act") against the modification of his control order by the Secretary of State pursuant to her powers under section 7(2)(d) of the 2005 Act served on him on 7 July 2007. The notice of appeal was filed on 30 July. The first ground of appeal is that the modified control order amounts to a breach of Mr Abu Rideh's rights under Article 5 of the ECHR because of its cumulative effect in his changed circumstances, in particular because he now lives alone and his perceived declining mental health. The second is that these changed circumstances mean that the order breaches his rights under Articles 3 and 8. The third, which was not pursued, is that the procedure adopted in modifying the control order amounts to a breach of his rights under Article 6.
2. Mr Abu Rideh has been subject to control orders since 12 March 2005. Before then he was detained under the Anti-Terrorism Crime and Security Act 2001. His complex medical history is summarised in my judgment on 4 April 2007 in the earlier proceedings in respect of his first control order: [2007] EWHC 804 (Admin), at 120-137. In that decision I held that, while the national security case against him was made out and the Secretary of State's decision that the individual obligations were necessary was not flawed, the restrictions imposed on him constituted a deprivation of liberty contrary to Article 5. On the Article 5 point, I followed my earlier decision in E v Secretary of State for the Home Department [2007] EWHC 233 (Admin) which concerned almost identical restrictions. On 17 May 2007 my decision in E's case was reversed by the Court of Appeal: [2007] EWCA Civ 459. An appeal to the House of Lords against that decision and the decisions in the JJ and MB cases has been heard and judgment is awaited. The appeal of the Secretary of State against my decision in Mr Abu Rideh's case has been stayed pending the decision of the House of Lords.
3. The modifications that are the subject of this appeal followed the arrest of Mr Abu Rideh on 5 July and discussion of his case by the Control Order Review Group ("CORG") on 6 July. He was arrested on suspicion of breaching his control orders inter alia by failing to reside at the designated address, failing to report to the monitoring company at the designated times, in particular to phone the monitoring company each day when first leaving the residence and when last returning ("the exit and entry calls"). He was also arrested for suspicion of breach of the obligation not to maintain or use more than one bank account. Notice of the modifications was served on him on 7 July by way of a letter, unfortunately erroneously dated 6 June 2007. The terms of Mr Abu Rideh's control order had previously been varied substantively on three occasions; on 11 May 2005, on 8 March 2007 (when a new order was made and the first control order was revoked), and on 26 March 2007. The change on 31 May 2005 was that, in the light of psychiatric evidence and following a hearing before Ouseley J, the requirement that he wear a tag was replaced by a requirement to telephone the monitoring company twice during the night.
4. The following changes were made in July 2007. First, pursuant to a request by his solicitors, he was again required to reside at the family home in West Kensington. On 26 March 2007 his control order had been modified by the specification of a new residence after domestic problems led him to leave the family home. Secondly, the requirement to make the exit and entry calls was replaced by a requirement that Mr Abu Rideh phone the monitoring company once in between 14.30 and 15.30 every afternoon, and report daily to his local police station between times notified by the police contact officer. The time slot is between 9.30 and 10.30 am. The third modification reflects the Court of Appeal's decision in E's case. Restrictions on visitors to the residence and arranged meetings outside the residence, which had been removed on 8 March 2007 in the light of my judgment in that case, were reinstated. Fourthly, a prohibition on entering any air or seaport or international railway station was introduced. Paragraph 11 of the letter serving notice of the modified obligations states:

"If there are any personal circumstances which may be affected by this modification of your control order, please explain these circumstances in writing."

No representations about the reporting obligations were made prior to the lodging of the appeal.

Section 10 of the 2005 Act

5. The material provisions in section 10 of the 2005 Act concerning appeals are:

"(5) The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order, whether on a renewal or otherwise… is to determine whether the following decision of the Secretary of State was flawed –

In the case of an appeal against a modification, his decision that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity…

(6) In determining the matters mentioned in [Subsection (5)] the court must apply the principles applicable on an application for judicial review.

(7) If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are –

…

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

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

(8) In every other case, the court must dismiss the appeal."

6. In the absence of a valid derogation from the ECHR there is no power to make a control order that is incompatible with the right to liberty under Article 5. Accordingly, a modification which has the effect of transforming an order which is compatible with Article 5 into one that is not so compatible is necessarily "flawed". Where no question of such transformation arises the court is required to determine the matter in the way specified by sections 10(5)(a) and 10(6) and (pending the decision of the House of Lords) the guidance of the Court of Appeal in MB's case.

The Evidence

7. Mr Abu Rideh's history until the hearing before me in January is set out in my previous judgment. As to developments since then, the evidence consists of statements by Catherine Byrne, a senior civil servant, Professor Ian Robbins, a consultant clinical psychologist at St George's Hospital, and Mr Abu Rideh. Professor Robbins' written evidence consists of a letter dated 20 June 2007 to Birnberg Peirce, Mr Abu Rideh's solicitors, a report dated 27 July 2007, and a letter to Mr Abu Rideh's solicitors dated 24 August 2007 responding to Ms Byrne's statement, made on 21 August. The letter dated 20 June 2007 is described in the index to the Appellant's bundle as a psychological report. Professor Robbins also gave oral evidence. Mr Abu Rideh's statement is dated 27 August 2007.
8. The open evidence also included a redacted version of the CORG meeting on 6 July and security service control order submissions dated March and July 2007. The latter record concerns about the potential for contacts with extremists and about alleged breaches of the control order. The July submission contains the logs of telephone calls to the monitoring company by Mr Abu Rideh between 1 April and 24 July. Ms Byrne's statement exhibits correspondence between the Home Office and Mr Abu Rideh and Birnberg Peirce. This correspondence suggests Mr Abu Rideh was not in regular contact with his solicitors.
9. On the weekend prior to 26 March Mr Abu Rideh's wife told him he had to leave the family residence. Birnberg Peirce apparently learned of this from the Home Office Control Order Contact Officer who informed them that he stayed at a mosque on the night of 25 March. The Home Office arranged for him to occupy emergency accommodation in Catford on a temporary basis.
10. A letter was served on Mr Abu Rideh on the night of 26 March modifying the residence obligation in the control order, informing him that the accommodation at Catford was for emergency purposes only, and requiring him to inform the Home Office of where he intended to move to by noon on 30 March. On 3 April the Control Order Contact Officer informed Birnberg Peirce that Mr Abu Rideh had told the police that he was unhappy with the emergency accommodation and threatened to harm himself. The letter states that the police would visit him and had arranged an appointment with his mental health workers. It appears that Mr Abu Rideh met his mental health team on 4 April.
11. On 15 April Mr Abu Rideh contacted his local police contact and asked for permission to reside at the family home in West Kensington for one night to look after his children as his wife was to be absent. Permission was granted for this. The monitoring records show that telephone calls were made from the family residence on that evening, and on most evenings from then until 26 April although there were also calls from the Catford address. After 27 April all the calls are logged as having been made from the telephone at the family residence. These included the evening call during the curfew period and the early morning calls between 3 and 5am. Mr Tam invites me to conclude from this log that it is incontrovertible that, from at any rate 27 April, Mr Abu Rideh was in fact living at the family residence in Kensington although the control order required him to live at the Catford address and that he completely failed to make the exit and entry calls.
12. Ms Byrne's statement says that on 6 June Mr Abu Rideh's local police contact officer visited the family address in Kensington on another matter and discovered him there. The officer reminded Mr Abu Rideh that living at a different address from that specified in the control order was a breach of the order and that he could ask the Home Office to alter the address if that is what he wanted. No such request was made before 5 July when Mr Abu Rideh was arrested.
13. On 20 June Professor Robbins saw Mr Abu Rideh. Following this meeting he wrote to Birnberg Peirce stating that Mr Abu Rideh's mood was extremely flat, that "he admitted that he was becoming increasingly hopeless", and that "this had led him to having suicidal thoughts". Professor Robbins stated that he felt the current state of circumstances made the drop in Mr Abu Rideh's mood more worrying. The letter continues:

"His conditions are from conducive to maintaining good mood. He is living in a bare flat in a part of South East London where he has no contacts. He does not have any television or other means of occupying himself and has to spend long periods on his own. This means that he may go for days without contact with another person. Even when he goes to the mosque he may often speak to no one and will simply pray, eat and watch some television before returning to his flat. As a consequence of this isolation his mood is dropping and he is also spending long periods in bed."

14. The letter also states that Mr Abu Rideh had said that his wife was considering returning to Jordan with the children and that he was unsure whether this would be a permanent move or not. Since the thought of his children has been one of the protective factors which have prevented him from harming himself Professor Robbins was concerned about this.
15. I have referred to Mr Abu Rideh's arrest on 5 July on suspicion of breaching his control order. When arrested he was found to be in possession of a bank card, a provisional driving licence, and a cash and carry card in names other than his own. As a result he was also arrested on suspicion of possessing an article for use in fraud and handling stolen goods. He was taken to a police station but (see the CORG minutes) a medical examination concluded that was not fit to be interviewed and he was bailed to the Catford address and released at 2 am. It appears from a letter dated 6 July from Birnberg Peirce to the Control Order Contact Officer that following his arrest and release on bail to the Catford address Mr Abu Rideh threatened to harm himself and a solicitor from the firm spent the night at the address.
16. Birnberg Peirce's letter dated 6 July made an urgent request in the light of concerns as to Mr Abu Rideh's safety that his residence requirement be changed to the family residence in Kensington. The letter states that the reason he left the family address "was due to family problems which have since been resolved". The modification was made on that day, the same day as the modifications to the control order that are the subject of the present appeal were made, which, as I have stated, were served on Mr Abu Rideh on 7 July.
17. Mr Abu Rideh's wife and children were booked to fly to Jordan on 12 July. On 9 July Birnberg Peirce applied for permission to permit him to take them to the airport. Conditional permission was given on 11 July. On 24 July permission was given to enable Mr Abu Rideh to visit Professor Robbins at St George's Hospital on 25 July. On both occasions he was required to make a substitute for the telephone call he is required to make between 14.30 and 15.30.
18. Professor Robbins' evidence: Professor Robbins considers that Mr Abu Rideh's disordered mental state means that he is "chaotic" and makes breaches of the conditions of his control order virtually inevitable. He also considers that Mr Abu Rideh is currently experiencing a high level of suicidal ideation because of his sense of hopelessness about his situation. Professor Robbins thought that he was at a greater risk of suicide now than earlier in the year because, whereas then he was talking of passive suicide, he was now contemplating active ways of harming himself. One of the additional risk factors was the fact that Mr Abu Rideh's family had departed. The family was a stabilising influence, because he relied on them to remind him of the requirements of his control order. Professor Robbins does not consider Mr Abu Rideh would be able to be managed within a hospital setting or that admission to hospital would help.
19. Asked by Mr Friedman about Mr Abu Rideh's capacity for manipulation, Professor Robbins stated that the discussion of suicide was not manipulative this time because it was not directed to proceedings. He said that there was some manipulation in what Mr Abu Rideh did, as when he harmed himself publicly to show his distress. He, however, said this was not purely manipulative because Mr Abu Rideh wanted to convey the sheer level of the distress he was experiencing and was not articulate enough to do it verbally. Professor Robbins said the provision of false information was not unusual among refugees and those seeking asylum. By manipulation he meant a person trying to make him take a different approach or do something on the basis of false information. He said that to manipulate a diagnosis as to mental state required more sophistication than Mr Abu Rideh had.
20. Asked about Mr Abu Rideh's voluntary isolation, Professor Robbins said there was a social side to him and he valued communication. Towards the end of his time in Broadmoor he was active socially. Professor Robbins said that before his arrest in 2001 Mr Abu Rideh was not active socially because he was argumentative and this alienated people. Additionally, in that period he was suffering from severe migraines and headaches which meant that he stayed at home.
21. Professor Robbins stated that contact was essential to Mr Abu Rideh because unless he had something else to occupy him he would focus on the traumatic events in the past that led to his mental problems. He considered Mr Abu Rideh would have great difficulty in leading a covert life because he found it difficult to keep his views to himself and because he would attract attention quickly.
22. Asked about alternative obligations, Professor Robbins said that if Mr Abu Rideh was required to wear a tag it was inevitable he would seek to remove it because it reminded him symbolically of what had happened to him in the past. Professor Robbins considered that it would be better for him to be able to report to an individual rather than to the machine. That has led to frustration by Mr Abu Rideh because he thinks that the machine does not recognise his words because of his accent. Professor Robbins also stated that the call that at present is required to be made between 4.45 and 5.15 am was a particular concern because of Mr Abu Rideh's difficulty in sleeping and his anxiety that he will miss this call. Mr Abu Rideh's statement dated 27 August says that the problem with this call is that the call time does not match his prayer time and "now and in the past [he] has to get up to pray and then stay up for hours until the appropriate time to call". He asks for the annual prayer timetable to be agreed in advance as the basis for when this call will be. Professor Robbins considered that indexing the time of this call to the time of morning prayers would assist Mr Abu Rideh both practically and symbolically.
23. Professor Robbins was cross-examined about his view that Mr Abu Rideh was not manipulative, about what Mr Abu Rideh told him when they met on 20 June, and about the contents of the letter that he wrote to Birnberg Peirce after that meeting. Professor Robbins said Mr Abu Rideh told him that save for incidental contact, he went without contact with another person for days, even at the mosque. He said he was aware Mr Abu Rideh was going to the family residence in West Kensington and spending time there visiting his family, in particular the children, and including sometimes staying overnight but had not asked how frequently. He said he did not mention this in his letter to Birnberg Peirce because he did not consider it the most salient matter and because the letter was about Mr Abu Rideh's housing circumstances at the time which were not helpful to his condition. Professor Robbins said the letter was his idea and not instigated by Mr Abu Rideh. He wanted to motivate Mr Abu Rideh's solicitors to do something about his housing conditions because he thought his current accommodation was inadequate to his needs. He accepted that that if, as the telephone monitoring evidence suggested, Mr Abu Rideh had moved back into the family home some eight weeks before 20 June what he said to Professor Robbins about this was not true. It did not, however, follow that everything else he said was untrue. He ultimately accepted that what Mr Abu Rideh said about his accommodation and isolation was manipulation. He, however, described it as low-level manipulation that was not about the risk of self-harm and did not affect Professor Robbins' diagnosis.
24. The reasons for the modifications to Mr Abu Rideh's control order: These are stated by Ms Byrne and seen from the redacted minutes of CORG's meeting on 6 July. Ms Byrne states that Mr Abu Rideh's failure to comply with the obligation to make the exit and entry calls, his regular non-compliance with the time slots for the early morning and evening telephone calls, and his unauthorised return to the Kensington residence significantly degraded the effective monitoring of his compliance of his control order and meant that if he were to abscond his absconding could remain undetected for some time. At the CORG meeting there appears to have been some debate as to the effect of strengthening the obligations on the risk of Mr Abu Rideh successfully absconding. The Home Office considered that the changes in his circumstances meant that he was more likely than hitherto to abscond. It was considered that his arrest the previous day and the possibility of prosecution might increase his desire to abscond. Ms Byrne's statement says it was also considered that the imminent departure of his wife and family from the UK for a prolonged period and possibly permanently might reduce his incentive to remain at a fixed address or provide an incentive for him to leave the UK. It does not object to Mr Abu Rideh leaving the UK but wishes that to be done in a controlled and visible manner because he is suspected of terrorist-related activity. The Home Office was of the view that strengthening the obligations in the control order would lessen the risk of him successfully absconding but the police expressed concern that it could have the opposite effect.
25. Ms Byrne states that, in the light of the fact that seven individuals subject to control orders had absconded, the Secretary of State is particularly concerned that appropriate measures be taken to reduce and mitigate the risk of absconding to protect the public from individuals suspected of terrorist-related activity. A key factor in reducing the risk of absconding is by having regular checks on the whereabouts of an individual to minimise the time that person's absconding could go undetected. Unlike most other individuals subject to control orders Mr Abu Rideh does not wear an electronic tag and the authorities are reliant on his reporting obligation to know where he is.
26. Ms Byrne says that Mr Abu Rideh had complied more consistently with the set time reporting restrictions but had ceased any compliance with the requirements to call when leaving and returning to the residence. For this reason it was decided to replace the latter with two set time reporting requirements. In view of the breaches of the reporting obligations it was also felt that requiring Mr Abu Rideh to attend a police station once a day to give the police a regular face to face contact with him would give additional assurance. In short the new obligations replaced two telephone calls at times determined by Mr Abu Rideh which he did not make with one telephone call and one visit to a police station and were imposed to deal with the risk of him absconding by reducing the time such absconding would remain undetected..
27. It was decided to reinstate the prohibition on unauthorised arranged meetings and visitors to the residence because of continuing concern about Mr Abu Rideh's association with extremists, in the light of the decision of the Court of Appeal in E's case, and since the restrictions in Mr Abu Rideh's case are with one exception identical to those to which E was subject.
28. As well as Mr Abu Rideh's history of breach and the risk of his absconding, the CORG meeting took into account his health and personal circumstances. The CORG minutes state that his history of mental health problems and the impact of strengthening his obligations on his mental health were discussed. The assessment was that the new obligations would not have a significant adverse impact on his mental health. The minutes state that "it was noted that the Home Office had received medical evidence on Mr Abu Rideh's mental health and that it was actively engaged with the relevant police contact officer and the local health authorities in order to keep his mental health under review". Ms Byrne refers to Mr Abu Rideh's meeting with his mental health team on 4 April which had been arranged by his police contact officer and to arrangements with the mental health team for him to be seen on 13, 16 and 30 April. She states that the police have maintained liaison with the mental health team about Mr Abu Rideh.
29. As far as personal circumstances are concerned, I have mentioned Ms Byrne's reference to the fact that, in deciding to modify Mr Abu Rideh's obligation, account was taken of the plans of Mr Abu Rideh's wife and family to leave the United Kingdom for a prolonged period. Mr Friedman suggested that the reliance upon his separation from his family for the modification was an ex post facto justification because there is no mention of it in the open version of the minutes of the CORG meeting. Since Ms Byrne was not required for cross-examination, her evidence on this has not been subjected to challenge. In replying to Mr Friedman's suggestion Mr Tam stated that the contents of Ms Byrne's statement referred to what was known by the Home Office on 6 July. In the light of the totality of the evidence before me including the closed evidence, I am satisfied that this was a factor taken into account at the time the decision to modify the obligations was made and is not an ex post facto justification.
30. Mr Abu Rideh's evidence: Mr Abu Rideh's statement denies that he would leave the country secretly or disappear. He says he is stateless and wishes he could find a new country to go to but no one will have him. He is not a person who would be helped by others to lead a secret life. He states that he is low and despondent about life. With the departure of his wife and family, he is back in the family home alone with little support. The new conditions mean he is not allowed to go far from his house and he has no peace of mind because he has constantly to worry about being in the right place at the right time. He states that his solicitors have asked for the conditions to be changed because he cannot keep up with them. He states that he sometimes doesn't go out at all except to the police station because he cannot face having to deal with his life.
31. The statement refers to alternatives to the present conditions. I have referred to the proposal that the call at present required to be made between 4.45 and 5.15 am be indexed by reference to the prayer timetable. Mr Abu Rideh also states that the requirement that he signs on at a police station every day is too much for him. It means he has to leave the house when he does not want to leave and makes him anxious and agitated. He states that the afternoon telephone call required is too restrictive because it requires him to return home. He also states that he would find it easier to call when he first leaves his home and when he last returns. He states he knows he has had a problem with these calls but will try to comply. As to the calls to the monitoring company, he says he finds those frustrating because the voice verification does not understand his accent. He raises the possibility of calling an answering machine or an individual, or having a mobile phone that is only capable of connecting to the Home Office or the monitoring company.
32. While Mr Abu Rideh complains that the new conditions require him to return home in the afternoon to make the telephone call and made him late for an appointment with his solicitors, he does not complain that they preclude him socialising. Rather his complaint is that the need to visit the police station means he has to leave the house when he does not want to do so. Nor does he deal with the alleged breach of the residence condition and failures to make the exit and entry telephone calls save to say (paragraphs 7 and 14) that he cannot cope with the obligations to which he is subjected and has had a problem with the exit and entry calls. There is thus no evidence in these proceedings challenging the Secretary of State's claim that Mr Abu Rideh has been living at the family residence since 27 April and that he has completely failed to make the exit and entry calls. Mr Friedman said that in the light of the consideration being given to prosecuting Mr Abu Rideh for these breaches he does not wish to comment on them. This stance may be understandable in the circumstances but the consequence is that the only evidence before the court on these matters is that furnished on behalf of the Secretary of State.

Discussion and Findings

33. Breaches of the control order: I accept Mr Tam's submission that the inference from the telephone logs is that Mr Abu Rideh moved back to the West Kensington family residence on or about 27 April and completely failed to make the required exit and entry telephone calls to the monitoring company. In the absence of any evidence on these matters by on or behalf of Mr Abu Rideh, I conclude that there has been a sustained breach of his control order obligations for over two months. Calls were made from the wrong residence and at the wrong times. That calls were made is some mitigation, as is the fact that this occurred during a period of marital difficulty. However, given his knowledge of the need to apply for permission to stay at the family residence (see the request made 15 April) and, particularly after 6 June when Mr Abu Rideh was warned by the police of the need to apply for his address to be altered, it is of very limited mitigation.
34. Mental Health: It is common ground that Mr Abu Rideh has an abnormal emotional reaction to stress. The difficulties in his marriage culminating in him being asked to leave the family home by his wife were undoubtedly stressful. I accept that they affected his mental state. The question is, however, whether they and the fact that he now lives on his own in the family residence mean that there has been a marked decline in his mental health and a real and serious risk of suicide.
35. Professor Robbins' opinion is that Mr Abu Rideh is seriously considering suicide and is a greater risk of suicide that earlier in the year. His report dated 27 July attributes this to the departure of his family to Jordan, to the obligation to call the monitoring company in the early hours of the morning and in the afternoon, and to the obligation to visit a police station every morning. In his evidence at the previous hearing Professor Robbins stated he would be worried if Mr Abu Rideh left the family home because he would be almost completely isolated: [2007] EWHC 804 (Admin) at 130. Dr Jarman, who then gave evidence on behalf of the Secretary of State, considered that there was not a risk of a serious completed suicide attempt by Mr Abu Rideh, but accepted that there would be a larger risk of self-harm by cutting or other means if he lived alone.
36. Professor Robbins' opinion of the current risk accords with what he said in his letter dated 20 June to Birnberg Peirce. That letter was based on the position Mr Abu Rideh said he was in at the meeting on that day, that is that he was isolated, in a barely furnished flat, and going for days without contact with another person. That has, however, been shown to be quite untrue. It is significant that Professor Robbins knew that Mr Abu Rideh was spending time at the family residence when he wrote the letter. Not only did he not mention this, but the statement in the letter that his conditions meant "that he may go for days without contact with another person" appears inconsistent with what he knew. Professor Robbins did not ask Mr Abu Rideh about the frequency of his visits to the family residence. His oral evidence as to what Mr Abu Rideh said at the meeting on 20 June was very general. Moreover, in his letter dated 24 August commenting on Ms Byrne's witness statement, which was written after the service of the telephone logs, he does not deal with the issue. Mr Friedman accepted this, saying, however, that the letter dealt with the generalities of non compliance.
37. Professor Robbins' evidence is that Mr Abu Rideh is not sophisticated enough to be able to manipulate him as far as his diagnosis is concerned. But the diagnosis and the assessment of risks may, as is shown by the letter of 20 June, be affected by what Mr Abu Rideh tells Professor Robbins. If that is untrue and an assessment of risk is made because of what is said, that is undoubtedly manipulation. While the manipulation may not have affected the underlying diagnosis, it has affected the assessment of the risk posed at any particular point as a result of the diagnosis.
38. It is clear, and was accepted by Mr Friedman, that Professor Robbins gets involved in matters other than Mr Abu Rideh's mental state, in particular his housing needs: see also paragraphs 131 and 137 of my earlier judgment. This involvement together with Professor Robbins' denial that he has seen manipulative behaviour by Mr Abu Rideh recently and the failure to deal with the impact of the evidence in the telephone logs on his assessment means that I treat his evidence with caution. Although Mr Abu Rideh's marital difficulties and the departure of his family have led to some deterioration in his mental state, I do not accept Professor Robbins' evidence that there is now a real and serious risk of suicide.
39. Professor Robbins saw Mr Abu Rideh on 20 June and wrote in the terms he did to Birnberg Peirce. However, notwithstanding the invitation in paragraph 11 of the letter notifying Mr Abu Rideh and his legal representatives of the modifications, no representations about the modified obligations based on his mental health were made prior to the lodging of the appeal on 30 July. That and Professor Robbins' view that admission to hospital would not help Mr Abu Rideh's condition do not fit comfortably with the view that, as a result of the modifications to the order and his personal circumstances, there is now a real risk of him attempting suicide.
40. It appears that the police were in regular contact with Mr Abu Rideh's mental health team. Indeed it appears to be the case that, with one exception, during this period it was the Home Office which informed Birnberg Peirce of matters concerning Mr Abu Rideh's health: see the letters dated 26 March and 3 April. The exception is the letter from Birnberg Peirce dated 6 July after his arrest and release on bail to the Catford address requesting a modification to enable Mr Abu Rideh to reside at the West Kensington address. Other than this it does not appear from the evidence before me that any representations concerning Mr Abu Rideh's mental state and the impact of his family difficulties were brought to the attention of the Home Office by his representatives. The suggestion that, in the circumstances of this case, because the Home Office knew that Mr Abu Rideh was seeing Professor Robbins it should have sought an updating report from him (see Addendum skeleton paragraph 13 (iv)(b)) is unfounded.
41. The Home Office was aware of Mr Abu Rideh's mental condition and his mental health was taken into account when considering whether to modify the obligations. The need to monitor his mental health and keep it under review was recognised and the letter of 4 April shows a certain proactivity by the police in relation to the risks.
42. Before leaving this aspect of the case, I observe that Mr Friedman's skeleton argument (paragraph 31 (vii)) erred in citing Ouseley J's judgment on 11 May 2005 for the proposition that one of the occasions when Mr Abu Rideh was hospitalised was after a serious and real suicide attempt. Ouseley J in fact said precisely the opposite: that what occurred was not a serious and real suicide attempt, and Mr Friedman accepted this when it was put to him.

Necessity of the challenged modifications to the order

43. There is in the present appeal no challenge to continuing necessity of the control order. Mr Friedman accepted (skeleton argument, paragraph 23) that for the purpose of this appeal the appropriate basis for assessing the national security risks posed by Mr Abu Rideh is the evidence given at the previous hearing and my conclusions.
44. The evidence which Mr Friedman accepted for present purposes justifies the continuation of the control order is continued sympathy with extremist causes, continued association with Islamic extremists, and engagement in unidentified conduct which is said legitimately to give rise to concern: see paragraphs 61-67 of my judgment. The crucial paragraph is 65 where I concluded that Mr Abu Rideh has the capacity to engage in terrorism related fundraising and facilitation. I stated that I did so "because of the evidence of his level of commitment and the range of his associates and former activities". I stated that the evidence in both his case and in E's case "is that those whose activities are disrupted by official action often engage in their previous activities once they are able to".
45. As for Mr Abu Rideh's mental health problems, I stated that, "before his detention these did not mean others were not willing to involve him in terrorism-related activities and did not prevent his activities. The assessment that, despite his detention, they will not do so now is not flawed." My conclusion of present risk at that time was based on closed evidence: paragraph 67.
46. The primary reasons for the modifications to Mr Abu Rideh's control order are that his changed circumstances and his arrest and the prospect of prosecution mean that he is more likely than hitherto to abscond. His continued breaches of the exit and entry call obligations and irregular compliance with the early morning and evening verification calls have reduced the Secretary of State's ability to monitor his compliance. This means that, since he does not wear a tag, if he were to abscond, his absconding could remain undetected for some time and the likelihood of his being found reduced.
47. Mr Abu Rideh denies any intention to abscond. However, the fact that he was not made available for cross examination means I am only to give his account very limited weight: see Secretary of State for the Home Department v E [2007] EWHC (Admin) 233, at 80 and 131. Some of what he says is inconsistent with Ms Byrne's evidence. For instance he says he has difficulties with voice verification but her evidence (paragraph 27) is that since the modified obligations his compliance has improved. It is also to be remembered that a detailed analysis of the monitoring calls showed that that his evidence at the previous hearing about the time taken to complete calls was completely untrue: [2007] EWHC 804 (Admin) at 111 and 114. His failure to deal in his witness statement with the alleged breaches of the residence condition and the untrue statements made to Professor Robbins at the meeting on 20 June also mean it is difficult to regard him as a credible witness.
48. On Mr Abu Rideh's behalf, reliance is placed on his degree of compliance with the control order obligations in the past, his applications to travel to Ireland and to go on the Haj, and what was said by SIAC in its January 2005 judgment on his application for bail. In so far as the Secretary of State relies on the departure of Mr Abu Rideh's family from this country, reliance is also placed on the fact that the control order was not modified last year when the family also visited Jordan and remained there for several months.
49. It is common ground that the presence of Mr Abu Rideh's family was a stabilising influence on him and their departure would remove this. I have concluded that on 6 July the Secretary of State was entitled to decide that the changes in Mr Abu Rideh's personal circumstances, that is the imminent departure of his family and thus the removal of this stabilising influence, and his possible prosecution for breaches of the control order, meant that he posed a greater risk of absconding.
50. It was suggested by Mr Friedman that this decision was flawed because account was taken of the fact that others had absconded. He submitted that, in the absence of an evidential nexus between the circumstances of those abscondees and Mr Abu Rideh's circumstances, the fact that they had absconded is irrelevant. It is suggested in paragraph 20 of Mr Friedman's addendum skeleton argument that this was a political as opposed to a security based justification for modifying the obligations.
51. I do not accept these submissions. The breaches by Mr Abu Rideh of his control order had reduced the Secretary of State's ability to monitor his compliance and had increased the time before which any absconding by him might be discovered. The Secretary of State was entitled to take into account what had been learned in the two and a half years since the introduction of the control order regime, for example in relation to the effect of delay in discovering that the person has absconded on the prospects for finding him. Although the CORG minutes refer to other cases where individuals had absconded, they do so as background and in the context of lessons learned from other controlled persons who have absconded. The primary focus of the CORG minutes and Ms Byrne's evidence is the effect of Mr Abu Rideh's changed circumstances and his pattern of breaching the order on the risk of his absconding.
52. As to the statement by SIAC in its judgment dated 28 January 2005 that Mr Abu Rideh's mental condition, particularly if untreated would reduce his ability to remain hidden, and the limited basis of concern that he would abscond, the reasons for which the Commission took the view that there was only a limited basis for concern that he would abscond included his desire to be with his family and their desire to have their father and husband at home (paragraph 61). The departure of his wife and family thus removes two of the factors which the Commission considered reduced the risk of his absconding at that time. That his mental condition would reduce his activities to remain hidden may mean that he will ultimately be discovered but does not in itself affect the risk of him absconding and remaining unmonitored until discovered.

Article 5

53. Mr Friedman's submissions on Article 5 are largely based on paragraphs 35-39 of his original skeleton argument and paragraphs 7-9 of his addendum skeleton argument.
54. Pending the decision of the House of Lords, the position is that stated in the decision of the Court of Appeal in Secretary of State for the Home Department v E [2007] 3 WLR 1. The following propositions can be distilled from the court's conclusions on Article 5 in paragraphs 62-69:

1. The protection of physical liberty is at the heart of any consideration of Article 5. The central issue is the degree of physical restraint upon that personal liberty: see paragraphs 62, 63 and 66.

2. Intrusion into life at home and restriction on outside activities may, when combined with a degree of physical restraint, create a breach of Article 5 but it must be kept in mind that it is the concept of individual liberty in its classic sense (that is physical liberty) which is in issue and this differs from, for example, respect for private life: paragraph 64.

3. While intrusion into the home under control order powers is potentially substantial and applies throughout the 24 hours, the Court of Appeal state it does not mean that the home acquires the characteristics of prison accommodation. It retains the attributes of a family home where domestic life may be enjoyed at all times: paragraph 64. (In my judgment I had said the home acquires some of the characteristics of prison accommodation in which the prisoner has no private space and his visitors are all vetted.)

4. The restrictions on outside activities, for example the requirement of authorisation for pre-arranged meetings, must be considered but do not make a substantial or decisive contribution to a complaint of deprivation of liberty: paragraph 66.

55. Mr Friedman relies on a number of factual distinctions between Mr Abu Rideh's position and E's position in support of his submission that the cumulative effect of Mr Abu Rideh's modified obligations renders him socially isolated to an extent that crosses the line between restriction on freedom of movement and a deprivation of liberty. He alternatively submits that Mr Abu Rideh's perceived declining mental health and history means that this line has been crossed.
56. The factual distinctions relied on are; first that, like the controlled persons in the JJ cases and unlike E, Mr Abu Rideh has been residing in a new area since his release. Secondly, unlike E, Mr Abu Rideh is subject to daytime reporting which cuts into his freedom of movement outside the curfew and, in respect of the afternoon telephoning requirement, requires him to return to his residence. Thirdly, unlike E, and like the controlled persons in the JJ cases, Mr Abu Rideh does not have an extended family living in the area. Mr Friedman relies on the difficulties for Mr Abu Rideh in socialising outside the house because of the requirements to report to the police and to make the afternoon telephone call.
57. In the light of the decision of the Court of Appeal in E's case that the central issue is the degree of physical restraint on physical liberty, I do not consider that these differences suffice to mean that Mr Abu Rideh's case crosses the line and amounts to a deprivation of his liberty.
58. The imposition of the prohibition on unauthorised pre-arranged meetings and visitors to the residence does not restrain Mr Abu Rideh's physical liberty. Mr Abu Rideh has lived in the West Kensington residence since his release in March 2005 and there has been no indication of problems in his residing in that area since then. The fact that he now does not have the benefit of support from his immediate family and has no extended family in the area is a relevant consideration. But, given the centrality of the degree of restraint on physical liberty to the Article 5 question, although this is a relevant consideration, in the context of a twelve hour curfew, it does not make a significant contribution to a complaint of deprivation of liberty.
59. Similarly, in the context of a twelve hour curfew, the reporting obligations substituted for the exit and entry calls do not contribute significantly to this complaint. Reporting requirements to the police are a feature of the Strasburg jurisprudence: see Guzzardi v Italy [1980] 3 EHRR 333 at paragraph 94 and Ciancimino v Italy (1991) 70 DR 103.
60. The Court of Appeal accepted that the mental state of a controlled person may have an impact on the severity of the effect of restrictions imposed: see [2007] EWCA Civ 459 at 54-55. In the case Mr Abu Rideh I do not, however, consider that his mental state causes the obligations to cross the line between restrictions on freedom of movement and deprivation of liberty. My reasons for concluding that this was not so at the earlier hearing were that Mr Abu Rideh was in any event socially isolated before he was subjected to any restrictions: see paragraph 149 of my judgment.
61. Professor Robbins said that Mr Abu Rideh's previous isolation in 1999 occurred in a period when he had alienated people and when he was suffering from severe migraines and had to sit in a darkened room. Professor Robbins considers that contact with others is essential to take his mind off the traumatic events in his past. Mr Abu Rideh's evidence, however, is not that he wants to go out to socialise. Indeed his complaint in paragraph 12 of his statement about the requirement that he report to the police station every day is that it means that he has to leave his house when he does not want to leave it. It is true that he also states (paragraph 13) that the afternoon call may mean that if he is at the mosque or walking around he has to return home. There is, however, no reference to needing to socialise or to communicate with others. In any event, the substituted reporting requirements do not prevent such socialisation. At most, they restrict the time during which it is possible for him to socialise outside his home. Mr Abu Rideh is still able to go to the mosque. If alternative times for reporting would be better for him the Home Office has indicated that so long as there remains a spread of reporting times throughout the 24 hour day to enable monitoring they would consider moving the substituted reporting requirements.
62. Mr Friedman's skeleton argument (paragraph 35(i)) states that the effect of the modifications is to require Mr Abu Rideh to remain within the geographical boundary of Hammersmith and Fulham in order to report to the police station in the morning and return to his home in the afternoon to make the telephone call to the monitoring company. First, it is not clear that this is in fact so. While Mr Abu Rideh states that the new conditions mean that he is not allowed to go far from his house, it is not clear why, in the time between 9.30am (the earliest time for reporting to the police station) and 3.30pm (the latest time for the afternoon call) he is not able to travel outside the borough and return in adequate time. In any event the Home Office has offered to modify the substituted reporting times provided this can be done while maintaining adequate cover through the 24 hour period to ensure that Mr Abu Rideh is monitored. Secondly, if it is so, it appears to be a restriction on liberty of movement rather than a deprivation of liberty. Moreover, in relation to, for example, hospital appointments, it appears that where requests for permission are made, consent is readily and speedily given.
63. I turn to Mr Friedman's alternative submission based on the deterioration in Mr Abu Rideh's mental health. Although I accept that there has been a decline in his health because of his marital difficulties and the family's departure, I have not accepted Professor Robbins' evidence about the degree of present risk of suicide. I do not accept that such deterioration as there has been means the effect of the modifications on him breach Article 5.

Article 3

64. In the light of what I have said about Professor Robbins' evidence about Mr Abu Rideh's current mental state, I do not consider that his position in relation to Article 3 has changed since the previous hearing: see [2007] EWHC 804 (Admin) at 143-146. The cumulative effect of the control order obligations upon him do not reach the threshold contemplated for Article 3. The Home Office is aware of and is concerned to keep his mental health under review.

Article 8 and the proportionality of the modified obligations

65. For the reasons in the following paragraphs, I have concluded that the modification to Mr Abu Rideh's control order obligations are not disproportionate to the current threat posed by him. I start with the suspicions of the risk Mr Abu Rideh poses to national security.
66. The reinstatement of the prohibition on unauthorised meetings or visitors is not disproportionate. Although made some 6 weeks after the Court of Appeal's decision in E it essentially reinstates a restriction only removed because of my judgment on Article 5.
67. It is the replacement of the requirement to make the exit and entry calls by the requirement to report to the police station in the morning and make a telephone call between 2.30 and 3.30pm which are particularly resisted. I have referred to the fact that there the present appeal does not challenge the continuing necessity for the control order. In my judgment the fact that Mr Abu Rideh has consistently failed to comply with the former obligations meant that it was permissible for the Home Office to seek to find an alternative way of monitoring Mr Abu Rideh. It was assessed that there is an increased risk of Mr Abu Rideh absconding. Earlier in this judgment I concluded that assessment was not flawed. Given the assessment, the substituted obligations are a proportionate response to the degradation of control over Mr Abu Rideh resulting from his non-compliance with the requirements of the control order.
68. It is also argued in this context that the Secretary of State gave insufficient consideration to Mr Abu Rideh's health. For the reasons set out above I do not consider that Mr Abu Rideh's current mental health renders the modified obligations disproportionate.
69. A short closed hearing considered updated security service assessments and whether, in the light of these, the modified obligations are necessary and proportionate to Mr Abu Rideh's continuing risk. I have decided this appeal on the basis of the open evidence but observe that the closed evidence provides additional support for the assessment of the Secretary of State that the modified obligations are necessary and proportionate.
70. Finally, I turn to the alternatives which Mr Friedman submits have been made. These are that morning calls be indexed to the annual prayer calendar, that there be a return to exit and entry calls, that a dedicated mobile phone be provided with the possibility of calling during the day or being called to indicate movement and whereabouts, and a requirement to be called rather than a requirement to call.
71. The Home Office has indicated a clear willingness to consider alterations to the current obligations. It first did so in paragraph 11 of the letter which served notice of the modified obligations on 7 July. The invitation to explain any personal circumstances which are affected by the modifications is an implied invitation to seek changes. The invitation was made explicit in relation to the timing of the four reporting points in the Treasury Solicitor's two letters to Birnberg Peirce dated 15 August. There were no communications to the Home Office about such personal circumstances or about the times of the four reporting calls during the day by Birnberg Peirce. There are no suggested modifications included in Mr Friedman's skeleton argument dated 13 August. The first suggestion of any alternatives is seen in Professor Robbins' letter to Birnberg Peirce dated 24 August. It does not appear that the broad and unworked out suggestions in that letter were put to the Home Office before the hearing. I have referred to the fact that Mr Abu Rideh's statement, available on the day before the hearing, says he hopes that the conditions can be changed, and that he has discussed alternatives (outlined in the statement) with his solicitors.
72. Mr Tam fairly commented that it was difficult for Mr Abu Rideh to come to court and invite the court to indicate how the individual obligations might be modified. That is not the role for a court exercising a supervisory jurisdiction by way of judicial review. As far as the suggestion that the morning calls be indexed to the prayer schedule, Mr Tam observed that an automatically moving schedule is problematic. If Mr Abu Rideh has difficulty in remembering to comply with obligations, a moving schedule will in itself create complications. He stated that if there is a request for times to be moved to a more appropriate time, it would be considered.
73. The timing of the early morning call was considered when the requirements of the control order were modified by the replacement of the tagging requirement with a requirement to telephone the monitoring company during the night. The Home Office and Mr Abu Rideh agreed the time of the early morning telephone call to take into account of when at that stage he needed to awaken for the purpose of his early morning prayers. Ouseley J commented that as the time of those prayers changed the time of the telephone call would need to be altered. Apart from a single request to move the slot from between 3 and 4am to one between 4.45 and 5.15pm, agreed to by the Home Office on 9 May 2005, I have not been informed of any requests for such alterations. The difficulties with the early morning call relied on by Mr Abu Rideh thus appear to result not from the decisions of the Home Office but from a failure by him or his representatives since May 2005 to request changes to the times as the times of morning prayers change. In the light of what was agreed when this obligation was first instituted and what was said by Ouseley J, it would seem that if such a request was made it would be favourably considered: see also AF v Secretary of State for the Home Department [2007] EWHC 2001 (Admin) at 49 per Goldring J.
74. Mr Friedman also referred to the suggestion made by counsel for AF that the Secretary of State provide AF with a mobile phone without internet access and with restricted telephone numbers. Mr Abu Rideh suggested (paragraph 15 of his statement) that the provision of such a phone would make the conditions much more bearable. It is difficult to see how the suggestion in AF assists Mr Friedman. In that case Mr Eicke, on behalf of the Secretary of State, indicated that if a proper request were made for such a phone it would be considered but Goldring J doubted whether the suggestion was feasible.
75. Finally, there is criticism of the fact that the modifications were made after a single warning to Mr Abu Rideh about the residence on 6 June and no warning about his failure to make the exit and entry calls. I do not consider this means that the Secretary of State's decision that the substituted reporting obligations were necessary is flawed. The question for decision by the court pursuant to section 10(5)(a) is whether the decision of the Secretary of State that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity. AF's case considered the correct approach to reasons and dialogue. Goldring J stated that a conclusion that the obligation was not, or may have not been, adequately explained, or that there was insufficient dialogue regarding it, does not meant the decision must be quashed because it is not a review of the process: [2007] EWHC 2001 (Admin) at 11. The position of warnings is analogous. In any event, Mr Abu Rideh's application to reside at the West Kensington residence on 15 April shows he knew what was required. The warning was given to him almost two months later, a month before his arrest.
76. For these reasons, applying the test in sections 10(5)(a) and (7) of the 2005 Act, I do not consider that the Secretary of State's decision was flawed. This appeal is dismissed.