England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th August 2008

Ouseley J :

1. I have been hearing four sets of proceedings in respect of control orders involving Abu Rideh. One concerns the making of the second control order in 2007 and another its renewal in 2008: these have been adjourned as a result of a decision which I made on 1 August 2008 that the decision of the House of Lords in SSHD v MB and AF [2007] UKHL 46 [2008] 1 AC 440 required further disclosure of the closed material. I granted permission to appeal against that decision to both sides. Those hearings will be resumed in October if the decision of the Court of Appeal on other appeals which it has already heard on the application of MB is available, and enables such a course to be followed. The SSHD will have arrived at a considered position in relation to the further disclosure by then anyway.
2. However, there are two appeals which Abu Rideh in particular was concerned that I should decide on the available material as soon as possible and in advance of the resolution of that issue. These are modification appeals: that is to say appeals against the refusal of the SSHD to modify certain obligations of the control order in the way requested by Abu Rideh. These appeals arise under s 10(3) of the Prevention of Terrorism Act 2005. My task on a review basis is to determine whether the SSHD's decision that the obligations continue to be necessary for purposes connected with preventing or restricting Abu Rideh's involvement in terrorism–related activity is flawed; s10(5)(b). Ms Markus for Abu Rideh emphasises that usefulness and reasonableness are not the measure of necessity; the interference with Abu Rideh's rights and those of his family should be proportionate to the legitimate aim pursued.
3. She drew my attention to what Beatson J said in his judgment of 4 April 2007 on an earlier control order appeal by Abu Rideh, at paragraph 177 and 178.

"[177]…It will remain important for the Secretary of State to demonstrate that careful consideration has been given to the continuing necessity of the individual obligations…

[178] The Court considering a new control order over the Respondent or a renewal of the present one will need to be satisfied that careful consideration has been given to the continuing necessity of the individual obligations notwithstanding his mental health. It will be entitled to expect reasons for the conclusion that the individual obligations remain necessary and, where they are necessary that consideration has been given to meeting any mental health needs resulting from a particular restriction…Such consideration and the demonstration of such consideration is, in my judgment, part of the requirement that the Secretary of State assess carefully whether, particularly in view of the length of time the Respondent has been either detained or subject to a control order, the continuing risk he is assessed to pose might be adequately addressed by such relaxation."

4. I also remind myself of what the Court of Appeal said in SSHD v MB [2006] EWCA Civ 1140 [2007] QB 415, at paragraphs 63-65, about the need for these obligations to be given intense scrutiny.
5. The control order contains the following obligations: residence at his home address, where his wife and children live; a curfew between 7pm and 7 am; telephone reporting three times a day, (between 03.00 and 04.00, 12.00 and 13.00, and 20.00 and 21.00); visitor restrictions without prior Home Office approval, but this does not apply to anyone visiting the house when he is not there; a bar on unapproved pre-arranged meetings except in certain circumstances; an obligation to permit searches and inspections of items in the house; a bar on the use of specified electronic and communication equipment whether in the house or outside it, and this includes any equipment capable of connecting to the internet; restrictions on travel abroad without notification, on the maintenance of more than one bank account and on the transfer of money documents or goods abroad; employment restrictions, and a bar on communicating with four named individuals.
6. Abu Rideh's control order obligations are unusual in a few respects. The requirement that he be tagged was lifted in 2005 because of the effect which the tag had on his mental stability. The removal of the tag led to the various reporting requirements, so as to ensure some knowledge of his whereabouts and restrictions on his movements. The reporting requirements have varied from time to time. There is no geographic boundary. He is also allowed a computer in the house, because of the needs of his children, but it is internet disabled.
7. In a modification appeal which I dealt with in June 2008, [2008] EWHC 1382 Admin, I directed removal of the requirement that he report in person at a police station, because of the evidence of the severe effect which reporting at a police station was having on his mental stability, and I substituted a telephone reporting requirement with changed times. Although those modifications were couched as interim modifications pending the full hearing of the appeals, and were directed by me because of the urgency created by his mental state, the SSHD has since made them permanent in a further version of the order.
8. The modifications which are at issue in these current appeals are the reporting obligations which Abu Rideh wants removed entirely, or reduced to one or two with the midday one in particular removed, the requirement for visitors to be approved in advance, especially for female visitors who would be visiting his wife, and the restriction on the internet connection at home because of the effect which that has on his children.
9. Ms Markus recognises that the judgment about those obligations at this stage has to be made on the basis that the control order is justified because of Abu Rideh's past and continuing involvement in terrorism-related activity. She makes her submissions against the background of the mental instability of Abu Rideh and the impact which the control order has on his family, which in turn affects him. I need to refer to the evidence about that.
10. In my judgment of 23 June 2008, at paragraphs 12-25, I set out the more recent history of Abu Rideh's mental health as analysed by Dr Deeley, a consultant psychiatrist at the Royal Bethlem Hospital, but not Abu Rideh's treating psychiatrist at the hospital where he was a sectioned patient. I do not need to repeat it, but it remains relevant. Abu Rideh has a long history of mental problems which pre-date his detention under ATCSA in 2001 but which were clearly worsened by that experience. He had severe problems in May/June 2008 which included a serious episode of self-harming and a hunger strike of some duration. Since that judgment, the SSHD has obtained her own report from Dr Turner, also a distinguished consultant psychiatrist. Abu Rideh has now left hospital and is back home. Dr Deeley has provided an update to his report, and the two have produced a joint statement, and a set of answers to further questions drafted by the parties to meet my concern about how far the evidence went in relation to the effect of specific obligations in the control order on his mental health.
11. Dr Turner, who disagreed with the views of Dr Jarman who had previously advised the Home Office in this case, was not very far apart from Dr Deeley. He was of the view that there was good evidence at least in the past for a diagnosis of PTSD but that now his many symptoms of PTSD would not meet the criteria for a diagnosis of PTSD; rather he had current PTSD in partial remission. There was a substantial history of behavioural disturbance showing evidence of a disturbed personality and a Personality Disorder; he has Major Depressive Episodes, interspersed with brief dysphoric mood associated with frustration. He continued to present a risk of self-harm, and his history of violent episodes was relevant to that risk in the future. The risk of behavioural disturbance and the risk of a worsening of his mental state were both likely to be increased by the terms of a control order.
12. Dr Deeley's update report was based on a recent interview with Abu Rideh and also with his wife. He concluded that Abu Rideh was suffering from severe depression. His acts of self-harm appeared to have been potentially life-threatening, but it was unclear whether he had true suicidal intent or was pursuing self-harm to communicate his frustration, anger and distress in a particularly reckless and self-harming way, without a specific intention of killing himself. He had consistently expressed a desire to set fire to himself. His motives oscillated between extreme protest and a desire to escape from his problems by ending his life. Factors likely to reduce his risk appeared to be weakening, specifically the Koranic injunction against suicide as he had made comments critical of Islam, and the constraints of his family as he appeared to be distancing himself from his children. His plans for moving to another country appeared to be unrealistic. He also seemed receptive to the idea that Dr Deeley should discuss his concerns with Abu Rideh's solicitors and some arrangements for support were put in place. His desire not to be re-admitted to hospital was likely to raise the threshold for admission since the principal maintaining and exacerbating factors were beyond the scope of psychiatrists to modify. The change in the reporting times had assisted. Overall Dr Deeley was of the view "that [Abu Rideh's] risk of serious self-harm is high but that emergency admission was not indicated at that point because of the absence of detailed plans…of enacting his self-harm."
13. Dr Deeley told of Abu Rideh's wife's desire to go to Jordan but of her inability to leave him in his current state and of the worries and stress which his condition imposed on her. Divorce had been considered but was not a realistic option.
14. The Joint Statement by the two psychiatrists dated 18 July 2008 was helpful. They agreed that Abu Rideh presents "with complex, multiple, psychiatric symptoms and maladaptive behaviours. We agree in many aspects of the diagnostic assessment but disagree about the severity of is depression and about the presence of psychotic symptoms." They agreed that there is evidence of personality disorder, evidence of PTSD, and that there were persistent PTSD symptoms, although disagreeing over whether the full condition was still present. Dr Deeley thought that it was still present but Dr Turner thought that it no longer was. They agreed that there was a depressed mood but disagreed about its severity. I have set out Dr Turner's view on this. Dr Deeley thought that there was a Recurrent Depressive Disorder, with a currently severe episode, with intermittent psychotic symptoms. They agreed that he presented a risk of self-harm with multiple episodes well-documented. Both personality and emotional factors were relevant, and they emphasised the risk associated with the former. Dr Deeley thought that the depressed mood contributed significantly more than did Dr Turner to the risk of self-harm, but that probably reflects their differing views about the severity of the depression.
15. They also provided further information in response to questions sent to them at my prompting. The mere fact that Abu Rideh was under a control order with its general effects probably did increase his risk of self-harm; Dr Deeley was of the view that the control order itself had a significant adverse effect on a severe depressive illness which was likely further to decrease Abu Rideh's threshold for engaging in self-harm. The requirement for reporting at the police station had probably also increased his risk, and its indefinite deletion from the order was likely to be a very helpful amendment which would probably reduce the risk of self-harm. It was the elements of the control order which triggered frustration which were likely to increase the risk of self-harm. Those elements which affected his family adversely also could affect his mood and increase his sense of frustration. Access to social support was a protective factor.
16. Abu Rideh's most recent statement was in February 2008 before the more serious recent events and episodes of mental instability and self-harming. In it he does deal with the pressure on his family, and his wife's departure to Jordan with the children in July 2007. He found the almost constant following by plain clothes officers, sometimes in cars and sometimes on foot, very distressing. He felt that his wife, in the last stages of her sixth pregnancy, had been questioned stressfully on her return from Jordan in December 2007. He explained something of the technical difficulties he had experienced in making his reporting telephone calls. He also had difficulty waking up to make them and had nightmares about not being able to make the calls when he should be doing so. His sleep was disrupted and his resultant short temperedness was affecting his family. The control order made life difficult for the family: no one wanted to visit them, or to give their details to the Home Office, so that they had become more isolated.
17. Abu Rideh produced a CD of the difficulties he had had making the voice-recognition based reporting calls: he had to repeat the identifying name several times before it was accepted. There were also occasions during this week when he was successful quite quickly, but which were not on the original CD provided. The recordings of the calls were made on a hand held voice recorder. Whether the position or use of that machine had affected the operation of the voice recognition software was impossible to tell. I did not get the impression that he was setting the system up to fail by deliberately mispronouncing the names given, although he did mispronounce common enough English names on occasions. He also seemed to me sometimes to pronounce them in the same way in succession with at times different results, but I would not claim that to be more than an impression, and the software may be more sensitive to minor variations than I could detect. The SSHD's analysis of all the calls over the period, received after the hearing, showed that there were nearly twice as many occasions on which the first call was successful than unsuccessful, and only one further call was required on nearly half of those which were initially unsuccessful. Forty per cent of the initially unsuccessful calls were made in the early morning, but again only one further call was required on nearly half of them. So there was no greater occurrence of three or more calls in the early hours.
18. The impact of the control order on the family was dealt with in the statement of Ms Cohen, a psychotherapist and independent social worker, with experience in dealing with traumatised and disturbed families. She had read some earlier reports from Professor Robbins, a psychologist, and conducted a 1½ hour interview in February 2008 with Abu Rideh's wife and the five older children, aged between 13 and 8. She had previously interviewed them for the same purposes in 2006. Mrs Al Jnidi, Abu Rideh's wife, had intended to return to Jordan with the children after the birth of the sixth child early in 2008, but had been unable to do so because her passport had been retained in the UK. The two older girls had already been at school in Jordan before she had gone out in July 2007. Their mother was frustrated that she could not get them back to school in Jordan. The children were waiting to get into school here at the time of the interview; none were actually at school. (Dr Deeley's last report said that Mrs Al Jnidi told him that the children were now happier as they had started school.)
19. The children complained to her that they could not go out in the evening because their father could not take them. They expressed hatred of their circumstances. Mrs Al Jnidi complained that the children felt as if they were living in a prison, feeling as if they were walking on eggshells as Abu Rideh could not stand the children making a noise, was easily angered and shouted at them. At that time he had to phone the monitoring company 4 times a day which cut into what he could do with them. They were all spending most of the day indoors which was a terrible strain. They found the searches horribly intrusive. The children told her that they had often been projects or schoolwork which required access to the internet; they did not tell the school about the situation and it was awkward when they were asked why they lacked internet access.
20. The marital relationship was strained because Abu Rideh was at home most of the time with nothing to do. He was quick to anger and shouted at everyone. They would be alright if they did not have the stress and strain of the present situation to deal with. They argued about the smallest things. It would be easier if they knew when the control order was going to end.
21. It was Ms Cohen's view that things were much worse for the whole family than in 2006: "a dire and untenable situation [had] destroyed this family's ordinary life", and caused the breakdown of the marital relationship. Indeed, she went so far as to say: "Indeed, it is no exaggeration to say that family life has been damaged and the couple's marriage has been destroyed." The children's lives were being "seriously damaged", their development was "seriously compromised," they were exhibiting "serious psychological disturbance". Their educational development was being severely impaired because they were not in school. The family was socially isolated, no one visited the house. The children were emotionally harmed by the impact of their father's mental state, and they were troubled by the intrusion of police searches into their lives. There was likely to be a "significant and detrimental" longer term impact on the children. Their father's authority was seriously undermined by the "constant surveillance while the security of their domestic space is regularly intruded upon and called into question." The children were likely to be "depressed and anxiety ridden with severely compromised capacity to lead ordinary and productive lives."
22. These modifications appeals pose considerable difficulties. First, it is accepted that I have to determine them on the basis that the control order continues to be justified. That may or may not be the final decision after any MB disclosure. The justification for it is not in reality confined to a fear that without the order Abu Rideh will revert to what he was doing before 2001, having done nothing by way of terrorism-related activities since then. I would accept that there would be a diminishing case for a control order in such circumstances and whether that time had come would be at least debatable. The real point is that on the evidence as it stands, notwithstanding his mental condition, there may very well be reasonable grounds for suspicion that he has continued to engage in terrorism-related activities under the control order but that it is effective in reducing the scale and scope of his involvement. The effect of the control order on him and his family may very well not have led to his being wholly dissuaded from those activities.
23. I am satisfied that the question of prosecution has regularly and recently been considered, and that the conclusion that there is no admissible evidence sufficient to found a prosecution is correct. Questions were put in open and closed in a general way about the extent to which the police had been asked to investigate matters in such a way as would enable a prosecution to be mounted. I accept that it is not for the Home Office to give instructions, and that it is not best placed to advise the police on how to investigate matters. They would be well aware of the techniques which might be available to move from inadmissible evidence into admissible evidence, and had no interest in using a control order as a substitute for a proper prosecution for a significant offence if one could be mounted.
24. I reject the submission that a control order cannot continue indefinitely if there is evidence of continuing terrorism-related activity which warrants it. I see no reason why a controlled person should be able to eliminate controls which continue to be justified by his continuing activity, by virtue of his persistence in that activity. There is therefore no basis in such a contention for a tapering off of the obligations on what may very well be the position here. There would be such a basis if the evidence that the activities had not continued, but that they would restart without the control order, was uncertain. But that is not how the evidence in this case currently appears.
25. Second, on the assumption which I currently make that the control order is justified, and the evidence at present shows that that may very well be so, I am also satisfied that the SSHD's conclusion that the obligations in the control order are necessary to restrict the extent to which Abu Rideh is and can be involved in terrorism-related activity is not flawed. I accept that his mental health has some effect on his ability to engage in those activities, but it would be quite wrong to approach this case on the basis that his general mental state operates as a complete or even very significant inhibitor. The Control Order Review Group also reviewed the requirements of the Order after cross-examination of the Home Office witness, Ms Hadland, by Mr Owen and in the light of the very recent evidence from Drs Deeley and Turner. The obligations were all maintained, with reasons given which reflected the allegations against Abu Rideh.
26. Third, I am satisfied that Abu Rideh's mental state is worsening, that the risk of self-harm is increasing and that the risk of greater self-harm is also increasing. Although Abu Rideh can be deceitful, and I would not wish to positively to exclude a degree of manipulation from his behaviour, the psychiatric evidence is at a significant level of agreement that his reactions are caused by his mental problems. There is no significant support for manipulation currently being to such an extent as significantly to colour the judgment I have to make. However, the psychiatric evidence does not really assist in knowing what are the most problematic obligations, apart from the reporting ones. The most significant one (reporting at the police station) has been removed, although the continuing need to telephone is a stressor. For the most part, the evidence, and certainly that of Ms Cohen was at a high level of generality relating to the order as a whole rather than relating to particular obligations.
27. Fourth, the obligations do impose restrictions which frustrate him; indeed their purpose is to restrict what he wants to do. The purpose of the modification process is not to achieve the best clinical or therapeutic outcome for Abu Rideh. But disproportionate impacts on him and his family should be alleviated. The order itself is a cause of stress to him and to his family but I believe that his mental condition, which would not disappear with the removal of the control order, would always be a stressor to his wife and children. Obligations have different impacts on the family and on him. They also directly affect the family in certain respects and that in its turn affects Abu Rideh. So necessary restrictions bring about a considerable degree of stress which affects the family and which in turn affects him. The impact which they are having is more severe than it would be for many people because of their impact on Abu Rideh's family and on his mental state.
28. I have to examine these particular dilemmas to see if modifications can be made which avoid the justified control order and its necessary restrictions having a disproportionate effect on Abu Rideh and on his family, in these very particular circumstances.
29. Ms Markus however first submitted that the evidence was such that the control order as a whole should now be lifted to avoid a breach of Articles 2 and 3 ECHR. She pointed to the growing hopelessness and risk of self-harm, and submitted that the level of suffering by Abu Rideh had reached the level where he would harm himself, with a risk of the loss of his life. This was caused by the control order and would be alleviated by its removal. There was a real, immediate and continuing risk to life, a real risk of self-harm and a potentially real threat to his own life. Even a risk based on manipulation could cause a risk to life, though it could also be an expression of anger or frustration.
30. I do not accept those submissions; they do not reflect the overall state of the medical evidence and the high threshold for such a breach to be in prospect. There is nothing in Dr Deeley's earlier report which would support the notion that the control order would breach either Article. The most significant stressor, the police station reporting has been removed, and the importance of that was evident from the report of Dr Deeley before me on the last occasion. The growing risk of self-harm must be balanced in ECHR terms against protective measures available including hospitalisation, which have been taken in the past, other than just against enabling someone who threatens suicide or self-harm to have what will remove the stress. Immediate hospitalisation is not indicated. He still lives at home with his family. There is a pattern which could be seen as manipulative but I do not give that any real weight at the moment. That is an issue which would require to be further explored if it were to become weighty. There is scope for inferring that the more serious attempts at self-harm are undertaken where he might receive some care, but that must be weighed against the fact that the most recent incident at the police station was serious, and he persisted in his hunger strike for some time. But overall this is not a case which could require the removal of the order to avoid a breach of Articles 2 or 3.
31. The evidence of Ms Cohen reads to me more like an advocacy document than an independent report in her description of the effect of Abu Rideh's behaviour and the control order on the children's long term wellbeing. I do not consider that she can say with justification on the evidence she provides, and from Dr Deeley, that the marriage has completely broken down, trying and stressful though the position is for Mrs Al Jnidi. She does not address the position which Abu Rideh would be in without the control order. It is, importantly, plainly not up to date in relation to the present impact of the control order on the family because the children are now out at school for much of the day rather than at home with nothing much to do, nor in relation to the current obligations in place after Abu Rideh's stay in hospital.
32. I turn to the reporting requirements. These have been modified as I have explained as allowance has been made in the past for Abu Rideh's desires and his mental state: they reflect the removal of the tag, the absence of a geographical boundary, the removal of the police station reporting requirement and easier times of reporting. Their primary purpose is not to prevent Abu Rideh absconding in the sense of disappearing completely from view to further his terrorism-related activities. Their primary purpose is to support the curfew and to provide some restriction on where or how far he can go in a day, which limits what he can do, as well as to help tabs to be kept on his whereabouts. I have no doubt that this is necessary. Abu Rideh is keen that the midday reporting restriction be removed, even if the other two remain. That in my view would be quite unjustified; of the three it is the most important. It is also clear that the evening call is necessary to support the start of the curfew, to ensure that he is back home.
33. However, I have considered carefully whether the one in the early hours of the morning, necessary as it is to support the curfew, is having such an effect that it could be eliminated without a really worrying effect on the curfew which would remain in place. I think that it can, although if the curfew were then breached in the early morning, its re-imposition would obviously be necessary. I think that the decision that it should not be removed is flawed. It is clear from the reports on the family that this early morning call is quite problematic, timed though it is at Abu Rideh's request to fit with when he is awake for prayers and to avoid times when he is affected by sleeping pills and other medication. It causes him sleep problems, which affect him through the day; he might lose less sleep over missing early morning prayers. His wife, and indeed his children, worry lest he sleep through this period; this affects their own sleep and anxiety levels. There are some difficulties, which appear to me to be genuine, with the monitoring company voice-recognition software, and, even though not more frequent than by day, that must be particularly stressful at that hour. I consider it less likely that it is in the early hours that Abu Rideh would leave the house in view of his need for medication and sleep. Additionally while his wife is living with him, she would have some concern for him lest he leave the house during the curfew hours, which could act as a modest deterrence. She is not hostile to him or indifferent to his well-being. Were he to live alone, this call might well need to be re-instated. I do not see the need to alter the timing of the other calls now established; it does not require further consequential alteration to achieve a better spread. Accordingly I shall direct that the requirement for the call to the monitoring company between 03.00 and 04.00 be removed from the order.
34. Ms Markus, drawing more generally upon what the psychiatrists had to say, sought removal of or variations to the curfew hours so that summer evenings, weekends and school holidays could be exempt in whole or part, so as to reduce the interference with the family. I regard a wholesale removal of the curfew as untenable. The arguments for that complete removal of the curfew are more addressed to an overall contention that the control order should be lifted because it is not necessary. I am not considering that at the moment. A control order without controls is a pointless order. There is in reality very little evidence about the effect which specific curfew hours have on the reality of life in the Abu Rideh household. The evening call is between 20.00 and 21.00. Were the curfew to start at 20.00 the first time at which a breach would become clear could be 21.00 hours. That is not tight enough.
35. Visitors: the aim here is the removal of the requirement for visitors to the house to have prior Home Office approval. This obligation already only applies when Abu Rideh is actually in the house. It does not affect the ability of Mrs Al Jnidi to have visitors to the house when he is not in. Mrs Al Jnidi is also able to go out and meet her friends or visit them in their houses. I accept however that this obligation would still interfere with her social life to the extent that it may be difficult for friends to drop in not knowing if Abu Rideh is in, or having to leave if he returns. This may also make it more difficult for her children to have friends around, if they are to be picked up by the mother or if the mother is to stay.
36. I have no doubt but that the restriction on visitors is necessary. It is the visitors to him who are of real concern. I accept that a female visitor can act as a courier or messenger, but except for the fact that they cannot do it face to face or hand to hand at present, females can still act in that manner by visiting when he is out and leaving whatever is to be left. I also accept that there should be no assumption that females are by nature unlikely to be Islamist extremists. Mr Tam may very well be correct in submitting that it is the effect of the control order, rather than the requirement for prior approval as such which is having an isolating effect on the family.
37. But the effect of the obligations on the family appears to be disproportionate, and to require some degree of alleviation, even though the basic requirement is justified. The practical impact of the telephone reporting at midday from home will be to increase the time which he spends there, and there is evidence that he spends some time just doing nothing much around the house. I am sufficiently impressed by the psychiatric and social evidence to consider that some alleviation here should be attempted. If Mrs Al Jnidi and the children receive some benefit from the alteration, it may well also reduce general levels of stress on him. If she does not receive visitors, the problem would clearly be that her friends do not wish to visit her at all with a control order in place, assuming that Abu Rideh himself is not the deterrent to their visiting. Accordingly, I shall direct that obligation 2 be varied so that female visitors are not subject to this limitation. I appreciate that it is an assumption that they will be visitors to Mrs Al Jnidi, but that seems to me to be probable, and a requirement that they should be would be unworkable. I enquired whether Mrs Al Jnidi's friends covered their faces in public. Birnberg Peirce, in a letter received after the hearing, told me that, although two of her friends did cover their faces, most only covered the hair and neck. I see no reason not to accept that, which partly alleviates some concern that they could not be generally identifiable by other means.
38. The internet: the potential for the use of the internet for terrorist related purposes is obvious; it would be magnified by its availability within the house. The use of the computer is exceptional within the control order regime, and the exception reflects the children's needs. This restriction is necessary particularly as the computer is allowed. I do not accept that the fact that there is evidence that he does not know how to use the internet would preclude his use or learning the use of it, but I do not put weight on the disputed Al Zawahiri letter as showing the contrary.
39. The possibility of an internet connection which limited the sites which could be visited has been considered. This is not yet a realistic option. Were it to become one, its enforcement could require frequent and routine police searches in the house, and the removal of the computer for days on end. Ms Cohen's report highlights the problem which such searches are thought to have. Although what she has to say strikes me as very considerably exaggerated because there has been one search since March 2007, and that in connection with a different criminal investigation, police attendance at the house is more frequent. If that is troubling to the family, more routine searches would be yet more intrusive.
40. I do not consider that there is any persuasive evidence of any difficulty in relation to school work, still less that it could only reasonably be overcome by internet access at home. Ms Cohen's report was written when the children were not at school, its generalities draw on past schools. There is nothing from any of the schools they now attend to show what work required use of the internet or internet at home and there is nothing else specific to back up her assertions. As Mr Tam pointed out, the evidence that the government was aiming for all children to have computers for internet access for homework by 2010, rather highlighted the number who did not have such access at present and the need for cogent evidence that a school had required work to be done which required the use of the internet. That evidence would also need to show why the internet at school would not suffice, and why the use of libraries was not possible. I accept that the latter may pose difficulties of travel and supervision. Supervision of the children at an internet café would be a greater need, and use of the internet at such establishments is unlikely to be an answer. Either way, Abu Rideh could not be the supervisor. I do not regard the lack of access to social networking internet sites as a significant impact on Article 8 rights.
41. I have been particularly concerned to reduce what may be significant stressors for Abu Rideh and his family, but which are of less relative significance for the operation of the control order, so as to reduce the impact on the family unit and on those not subject to the control order which may in turn assist Abu Rideh without significantly increasing risks.
42. In the light of those conclusions, the two directions which I make on these appeals are that the reporting obligation be varied by the removal of the need to make the call between 03.00 and 0400; and that there be the removal of the need for female visitors to have the prior approval of the Home Office. Ms Markus requested that these modifications should be expressed in such a way that, if warranted, further modifications based on the full evidence adduced at full control order appeals could be considered. I accept that in principle. It seems to me that the best course is to make the modifications time limited up to the judgment on the making and renewal of the control order, and to treat them as interim decisions in the modifications appeals which are also adjourned to the final hearing of the full appeals, so that the internet, visitor and reporting restrictions appeals can be considered in the light of further evidence following MB disclosure if any. I will consider submissions on the form of order if either party desires.
43. There is a closed judgment.