QUEEN'S BENCH DIVISION
AND IN THE MATTER OF PROCEEDINGS UNDER
THE PREVENTION OF TERRORISM ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| Secretary of State for the Home Department
|- and -
Owen Davies QC and Ali Naseem Bajwa (instructed by Chambers of Bradford) for the Respondent
Michael Supperstone QC (for all the hearings) and Tom de la Mare (for the June hearings only) (instructed by Special Advocates' Support Unit) as the Special Advocate
Hearing dates: 11-14 and 20 June 2007 and 4, 5 and 8 February 2008
Further written submissions made on 15 February 2008
Crown Copyright ©
Mr Justice Silber:
II. The Control order and the History of the Present Proceedings.
III. The Statutory Regime.
"The Secretary of State may make a control order against an individual if he –
(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."
"(a) I have reasonable grounds for suspecting that you are or you have been involved in terrorism- related activity; and
(b) I consider it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to impose certain obligations upon you in order to prevent or restrict your further involvement in terrorism-related activity".
"I believe that you are involved in providing support for the Jihadist insurgency in Iraq, and in radicalising individuals in the UK. I also believe you have received terrorist training and have taken part in terrorist activities".
IV The issues
(a) The Secretary of State's decision that she or her predecessors had reasonable grounds for suspecting that AE was or had been involved in terrorism-related activity as at the date of the 2006 order was flawed. The parties do not agree as to whether this issue has to be considered as at the date of the 2007 control order. (s.3 (10) (a)) and 2 (1) (a) of the PTA). As I will explain in paragraph 19 below, I consider that the appropriate date is the date of the hearing but it does not make any difference to the outcome of the present applications whether this matter is considered at the date of the 2006 order or at the present date as the outcome will be the same;
(b) The Secretary of State's decision that it was necessary for purposes connected with protecting members of the public from a risk of terrorism to make the 2006 control order imposing obligations on AE was flawed. (s.3 (10) (a)) and 2 (1) (b) of the PTA). An identical issue arises on the appeal against the renewal of the control order in September 2007 (s10 (4) (a) of the PTA);
(c) The terms of the post-31 October 2007 control order as it now stands do not infringe AE's rights under article 5 of the ECHR The reason for this is that in the case of non-derogating control orders, the Secretary of State can only make such an order which does not consist of or include "derogating obligations" (s 15(1) of the PTA) while "derogating obligations" are defined as meaning any obligation which "is incompatible with his right to liberty under article 5 of the [ECHR]" (s 1(10) of the PTA). Thus it follows that the Secretary of State must have decided that article 5 was not infringed when she made the 2007 control order and the 31 October 2007 modifications, which are the subject of the present appeal. Another reason why I must consider AE's article 5 rights is that as a public authority for the purposes of the Human Rights Act 1998, I am under a duty to act compatibly with Convention rights unless precluded from doing so by primary legislation which cannot be construed in any other way (see Baroness Hale in MB (supra)  and section 6 (1), (2) and (3) of Human Rights Act 1998 and section 11(2) of the PTA). For the purpose of completeness, I should add that I am not concerned with this aspect of the 2006 control order as Mr. Owen Davies QC counsel for AE does not dispute that the 2006 order which is the subject of the section 3(10) proceedings did not amount to a breach of article 5 of the ECHR; that is clearly correct in the light of the decisions of the House of Lords in MB and JJ (supra). Nevertheless, I have still to consider if the 2007 order in its present post-31 October 2007 form infringes AE's article 5 rights; and
(d) each of the obligations imposed by the 2007 order (in the case of the appeal against the renewal of the control order) and the modification (in the case of the appeal against the 31 October 2007 modification) are "necessary for purposes connected with preventing or restricting involvement by [AE] in terrorism-related activity". (The relevant statutory provision in the case of the appeal against the renewal is s 10(4) (b) of the PTA and in the case of the appeal on the modification issue the statutory provision is s10 (5) of the PTA).
V. The Article 6 Issue
(ii) AE's case
(iii) The case for the Secretary of State
(iv) Is there a minimum level of detail which has to be given in open documents to a controlled person in order for his or her article 6 rights to be protected?
"41….This is not a case (like E) in which the order can be justified on the strength of the open material alone. Nor is it a case in which the thrust of the case against the controlled person has been effectively conveyed to him by way of summary, redacted documents or anonymised statements. It is a case in which, on the judge's assessment which the Court of Appeal did not displace, MB was confronted by a bare unsubstantiated assertion which he could do no more than deny. I have difficulty in accepting that MB has enjoyed a substantial measure of procedural justice, or that the very essence of the right to a fair hearing has not been impaired"
On the facts of AF, Lord Bingham said with my underlining added:
"42… The judge accepted (para 146), without qualification, submissions by counsel for AF that no, or at least no clear or significant, allegations of involvement in terrorist-related activity were disclosed by the open material, that no such allegations had been gisted, that the case made by the Secretary of State against AF was in its essence entirely undisclosed to him and that no allegations of wrongdoing had been put to him by the police in interview after his arrest, affording him an idea by that side wind of what the case against him might be. Having noted the decision of the Court of Appeal in MB and the decision of the House in Roberts, above, the judge concluded (para 166) that there was no clear basis for a finding of incompatibility.
43. This would seem to me an even stronger case than MB's. If, as I understand the House to have accepted in Roberts, above, the concept of fairness imports a core, irreducible minimum of procedural protection, I have difficulty, on the judge's findings, in concluding that such protection has been afforded to AF. The right to a fair hearing is fundamental…"
(v) What level of injustice has to be shown before the article 6 rights of AE will have been regarded as having been infringed?
39 B. These very significant conclusions were reached, as I have emphasised, in the context that the information disclosed in the open case was very scant andthree members of the Appellate Committee concluded that it would be exceptional for there to be a finding of infringement with article 6 rights of a controlled person when the special advocate procedure is adopted.This so that even in cases where the controlled person has not been informed of the essentials of the case against him or her or the evidence relied on by the Secretary of State.
39 C. In my view, the effect of MB and AF is that:
a. there is no irreducible or minimum amount of material which must be disclosed in the open material for the article 6 rights of a controlled person to be preserved (see paragraph 32 above);
b. the task of the courts in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person (see paragraph 37 ) above;
c. the use of the special advocate procedure places the controlled person at a "grave disadvantage" and so the obligations on the Special Advocate and myself are and have been "to probe the claim that the closed material should remain closed with great care and considerable scepticism ; (see paragraphs 27 and 38 above) but
d. nevertheless, it would be exceptional for there to be a finding of infringement with article 6 rights of a controlled person when the special advocate procedure is adopted (see paragraph 39 B above).
(vi) How have AE's article 6 rights been protected?
"only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6 (1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities". (Jasper v United Kingdom (2000) 30 EHRR 441  and Fitt v United Kingdom (2000) 30 EHRR 480  quoted by Lord Bingham of Cornhill  whose approach was adopted by Lord Brown  and the identical passage in Botmeh and Alami v United Kingdom (Application no 15187/03-unreported 7 June 2007) quoted by Baroness Hale of Richmond ) and in Rowe v United Kingdom (2000) 30 EHRR 1  quoted by Lord Carswell )
This test entails considering first whether the regime adopted in this case of withholding many allegations and much evidence from AE but instead using the special advocate procedure was "strictly necessary". Having considered the closed material and the reasons why it was closed, I am satisfied that in this case the difficulties caused to AE by the adoption of the Special Advocate procedure were in the words of Strasbourg decisions "strictly necessary" because of the serious security problems which would have been caused if the closed evidence and the sources of information were disclosed. The very nature of the work of security and intelligence services requires secrecy if it is to be effective and I accept that there is an obvious and well- recognized need to preserve that effectiveness. I accept that disclosure to AE of the closed material would cause serious harm because it would reveal details of the working of these services and in consequence present and future operations which are designed to protect lives and property would be jeopardized. In reaching this conclusion I have borne in mind the need to scrutinize the material which is closed with particular care especially in the light of the warning in MB (supra) that "there is ample evidence from elsewhere of a tendency to overclaim the need for secrecy in terrorism cases" (per Baroness Hale ). I add that at the February hearings, the Special Advocate, who has much experience of these cases, did not object (as he would surely have done if it was appropriate to do so) to any material in this case remaining closed for security reasons.
a. insofar as the closed material relates to the issue of whether the Secretary of State had reasonable grounds for suspecting that AE is or had been involved in terrorism- related activities, it is that belief and not the issue of whether AE was actually involved in that activity with which I am concerned. The test of ascertaining whether the Secretary of State had reasonable grounds has a low threshold because, as has been explained by the Strasbourg Court, "having a reasonable suspicion' presupposes the existence of facts of information which would satisfy an objective observer that the person concerned may have committed the offence" (Fox Campbell and Hartley v United Kingdom ...1990) 13 EHRR 157 )". The significance of this point is that the evidence which could be adduced by AE or any witnesses of his must be limited to this issue as the court is not seeking to discover what AE did or did not do but rather in the words of Lord Phillips MR when giving the judgment of the Court of Appeal in MB (supra) the "court must make up its own mind as to whether there are reasonable grounds for the necessary suspicion (i.e. that the Secretary of State had reasonable grounds for believing that AE was involved in terrorist-related activity)" ; and
b. in spite of protestations by AE, there is clear evidence that he has acted in a fraudulent and dishonest manner as I will explain in paragraph 58 below with the result that his credibility in respect of evidence on any closed material would have been to some extent undermined by his fraudulent activities. In consequence, I consider that if the closed material had been disclosed to him, AE would have had some (but perhaps not total) difficulty in relying on his own evidence ( as opposed to the evidence of others) to refute the material which remains closed. In any event, this conduct would preclude him from enjoying the presumption of honesty usually given to the evidence of a religious leader.
V. Are there reasonable grounds for suspecting that AE was or had been involved in terrorism-related activity?
"Section 3(10)(a) of the PTA requires the court to consider whether the decision of the Secretary of State that there were reasonable grounds for suspecting that the subject of the order was involved in terrorism-related activity was flawed. Involvement in terrorist-related activity, as defined by section 1(9) of the PTA, is likely to constitute a serious criminal offence, although it will not necessarily do so. This, of itself, suggests that when reviewing a decision by the Secretary of State to make a control order, the court must make up its own mind as to whether there are reasonable grounds for the necessary suspicion. Indeed, as we put to Mr Starmer in argument, it is not easy to see what alternative approach the court could take.
59. The test of reasonable suspicion is one with which the Strasbourg court is familiar in the context of Article 5(1) (c) of the Convention.
"Having a 'reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence" – Fox, Campbell and Hartley v United Kingdom (1991) 13EHRR 157 at paragraph 38.
Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism-related activity…
The PTA authorises the imposition of obligations where there are reasonable grounds for suspicion. The issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may involve considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the procedure for determining whether reasonable grounds for suspicion exist that has to be fair if Article 6 is to be satisfied".
"with advance notice, your client would be able to make a voluntary departure from the U K at any time and invite you to consider whether he wishes to leave the UK and return to Iraq. I can confirm that if he wishes to do so the Home Office would be willing to consider what assistance it may be able to provide."
VII Was the Secretary of State entitled to conclude that it was necessary for purposes connected with protecting members of the public from a risk of terrorism to make a control order on AE?
VIII. Are the Post-31 October 2007 restrictions in AE's Control order "necessary for purposes connected with protecting members of the public from the risk of terrorism" and compliant with AE's rights under with Article 5 of the ECHR?
(ii) Submissions of counsel
(iii) The relevant legal principles relating to the restrictions which can be imposed on a controlled person
"Just so that there is no mistake about it, my view is that, taking account of the conditions and circumstances in all these various control order cases, provided the "core element of confinement" does not exceed 16 hours a day, it is "insufficiently stringent" as a matter of law to effect a deprivation of liberty. Beyond 16 hours, however, liberty is lost." 
(iv) Relevant factors in determining the length of the curfew for AE and other restrictions imposed on AE
"The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligations that it is necessary to impose may depend upon the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands on those resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance."
87. Another factor that was ventilated was that there was nothing that AE could have done in 10 hours (i.e. under the pre-31October 2007 14-hour curfew) that he could not now do in 8 hours (i.e. under the post-31October 2007 16-hour curfew). Thus, it was said that for that reason alone the extension of the curfew by two hours was not "necessary". The case for the Secretary of State is that this submission is inconsistent with the approach adopted in Secretary of State v E  EWHC 233 Admin. by Beatson J when he explained (with emphasis added) that:
"The justifications for the particular restrictions placed on E (see paragraphs 125-128 below) recognise that they cannot entirely prevent him from engaging in terrorism-related activities, or seeing people who are of security concern, but state that they reduce his ability to do so without detection. It is not legitimate to argue that because, for example, a 12 hour curfew leaves sufficient time outside the home to permit terrorism-related activity, the Secretary of State's assessment that the obligations are necessary is, for this reason, flawed."
"64. The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instance: Secretary of State for the Home Department v Rehman 1 AC 153; Ireland v United Kingdom (1978) 2 EHRR 25.
65. Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order "with the consent of the controlled person" envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations".
92. A final factor which I have to consider is the weight to be attached to the way in which the control order operated before its amendment on 31 October 2007 and in particular whether it restricted AE effectively. In my view bearing in mind, Lord Phillips' requirement, which I quoted in the last paragraph, for "the court to give intense scrutiny to the necessity for each of the obligations imposed on the controlled person", the starting point for considering an appeal against a modification is to consider very carefully first if the existing measures have adequately protected (and will continue to adequately protect) the public against the activities of the controlled person and second if the controlled person has complied with the obligations imposed on him. If the answer to each question is in the affirmative, there must be a strong presumption that any alterations in the control order strengthening the restrictions are unnecessary. Of course this presumption can be, and should be, rebutted if, for example, there is evidence that some existing or proposed or anticipated activities of the controlled person are likely to pose a greater or a different threat to the public.
93. I should stress that in determining if any particular restriction is necessary, it is necessary to give anxious scrutiny to the question of whether the interests of the public can be protected by a less onerous obligation. Indeed Lord Phillips indicated that the courts "should explore alternative means of achieving the same result" when considering the necessity of imposing any particular obligation.
(v)Was there a need to impose more stringent requirements on AE on 31 October 2007 for purposes connected with protecting members of the public from a risk of terrorism?
94. Witness O accepted that since the imposition of the control order AE has not been involved in terrorist- related activities. AE was arrested in February 2007 by the Cambridgeshire police on suspicion of breaching his control order conditions on a number of occasions in late 2006. A file was submitted to the Crown Prosecution Service who concluded that there had been breaches of the order but that there was either a reasonable excuse or an insufficient public interest in prosecuting AE. These matters have not been pressed by the Secretary of State as the facts are too unclear to be held against AE. I will therefore proceed on the basis that AE has not acted in breach of any of the control orders in force against him at any particular time.
95. The case for the Secretary of State in support of the 31 October modifications is that
"13. The Security Service assesses that the conditions of [AE]'s control order have been effective to some degree in reducing his ability to associate with extremists and participate in terrorist activity. However, despite being subject to a control order, the Security Service assesses that [AE] remains a significant member of the Iraqi Kurd extremist community and continues to associate with Islamist extremists. The Security Service assesses that through such associates, [AE] possesses the contacts and knowledge to provide support to those involved in terrorism-related activity. The Security Service also assesses that these associates would have the capability to facilitate [AE]'s own involvement in terrorism-related activity.
14. Given [AE]'s past involvement in the facilitation of terrorist activity and the radicalisation of individuals in the UK, and that he continues to associate with Islamist extremists, the Secretary of State considers it is necessary to increase [AE]'s curfew and to impose greater restrictions on visitors to the residence in order to disrupt as much as possible his contract with them and potential to engage in or support others involved in terrorism-related activity".
96. That raises the issue of whether the pre-31 October 2007 control order would now adequately protect the public against the risk of terrorism in the light of AE's actual or potential activities. I have explained in the closed judgment why I have concluded first that AE continues to associate with some Islamist extremists without being in breach of the pre-31 October 2007 order and in consequence second that this order did not adequately protect members of the public from the risk of terrorism. It is against that background that consideration has to be given to whether it was necessary to introduce into AE's control order the two provisions in the 31 October 2007 amendments, which are now under appeal.
(vi) Was the imposition of the ban on visitors to AE's residence during non-curfew hours necessary for purposes connected with protecting members of the public from a risk of terrorism?
97. It is appropriate to start by considering the less onerous obligation raised on the modification appeal and that is the ban on visitors during non-curfew hours with the exception of the small group of visitors exempted as I have explained in paragraph 76 above, who I shall call "the exempted category". It was made clear in E and S (supra) by Lord Bingham in respect of the importance attached by the judge to factors other than the actual confinement
"11…The matters which particularly weighed with the judge were not irrelevant, but they could not of themselves effect a deprivation of liberty if the core element of confinement, to which other restrictions (important as they may be in some cases) are ancillary, is insufficiently stringent…"
"16. As stated previously, much of [AE]'s terrorism-related activity necessarily involved regular contact with associates who were themselves involved in the same or other terrorism-related activity. The Security Service assesses that [AE]continues to associate with Islamist extremists and that restrictions on [AE]'s capacity to do so are necessary to reduce the risk that he will involve himself again in terrorism-related activity or share his expertise and contacts with others. It is therefore necessary that any visitors to [AE]'s home at any time should, absent the prior agreement of the Home Office, be limited to his legal representatives, children under the age of tem years, members of the emergency services (in an emergency) and, if necessary, others to whom he is obliged to allow access under the terms of any tenancy agreement"
(vii) Is the increase of the 14-hour curfew to a 16-hour curfew "necessary for purposes connected with protecting members of the public from the risk of terrorism"?
"Although the imposition of a longer curfew cannot entirely prevent [AE] from engaging in terrorism-related activity, a requirement to reside at a particular address and only to leave that address at certain times reduces his ability to do so without detection. As will be obvious, the less time that [AE] is able to be outside his home and therefore able to engage in those activities, the greater the reduction in the risk that he poses. As will also be evident, the fact that [AE] is restricted to one location for particular periods makes his movements easier to monitor so that any breach of any other obligation will be more easily detected"
The following obligations form part of the control order and are imposed on you by virtue of section 1 (3) of the Prevention of Terrorism Act 2005:
Upon service of the control order and thereafter for the duration of this control order:-1) You shall permit yourself to be fitted with and shall thereafter at all times wear an electronic monitoring tag ("the tag").
2) You shall reside at 39 Outfield, Peterborough, Cambridgeshire, PE3 8JW ("the residence") and shall remain in the residence at all times save for a period of 8 hours between 9am and 5pm. "Residence", in the case of a flat, encompasses only that flat and, in particular, does not include any communal area either inside or outside to which any person not within the residence would have unrestricted access. "Residence", in the case of a house, encompasses only the house and any private outside garden associated with it which can be accessed without passing through any communal area to which any person not within the residence would have unrestricted access.
3.1) You may not at any time leave the area marked on the attached map (the width of the line itself is within the permitted area) without the consent of the Home Office. This area is bordered by the A47 to the North followed by, in a clockwise direction, Bretton Way, Soke Parkway, Bretton Gate, Gresley Way, Westfield Road, Bourges Boulevard, Westgate, Broadway, the footpath between Edwards Bar and Tesco, the footpath between the Land Registry building and Northminster car park, crossing Northminster Road, the footpath between Angels Nightclub and the English Nature Building to the point of access to Brook Street College and Stanley Recreation Ground, the southern boundary of Stanley Recreation to the access point at Church Walk, Church Walk, Park Road, Dogsthorpe Road, Garton End Road, Newark Avenue, Eastfield Road, St John's Street, Vineyard Road, Bishops Road, Rivergate, the A605 (Oundle Road), the A1 and the A47.
3.2) In addition, you may also use the west part of Bright Street as far as Cromwell Road, the part of Cromwell Road between Bright Street and Link Road, and the part of Link Road between Cromwell Road and Gladstone Street. Due to the one way system you may also use the part of Gladstone Street between Link Road and Russell Street back to Cromwell Road.
3.3) You may only leave the area marked on the map to attend the mosque on Gladstone Street. You may only travel directly between the mosque and the boundary of your permitted area following the route outlined below. The route is also shown on the attached map.
To the mosque at 169-171 Gladstone Street you may only travel by the following route from the boundary of your permitted area on Westfield Road/Bourges Boulevard:
i. From Westfield Road;
ii. Turn right onto Bourges Boulevard;
iii. Turn left onto Bright Street;
iv. Turn left onto Cromwell Road (one way system);
v. Turn left onto the Link Road; and
vi. And turn right leading to the car park entrance of the mosque on Gladstone Street, opposite Dyson Close.
From the mosque at 169-171 Gladstone Street you must travel directly back to your permitted area by the following route:
i. Turn left out of the car park and continue straight onto Gladstone Street;
ii. Turn left onto Russell Street;
iii. Turn right into Cromwell Road;
iv. Turn right unto Bright Street;
v. Turn right onto Bourges Boulevard; and
3.4) In addition to obligation 3.3, you may also leave the area marked on the map to go to the Little Stars Nursery located on the junction of Queens Drive West and Dogsthorpe Road. You may only travel directly between the Little Stars Nursery and the boundary of your permitted area on Park Road via Queens Drive West.vi. Turn left onto Westfield Road and return to your permitted area
4) Each day, you must report to the monitoring company (as notified to you) via the telephone provided by the monitoring company:
(i) on the first occasion you leave the residence after a curfew period has ended; and
(ii) on the last occasion you return to it before a curfew period begins.
You are permitted to use this telephone only for the purposes of complying with this obligation.5) You must permit entry to police officers and persons authorised by the Secretary of State or by the monitoring company, on production of identification, at any time to verify your presence at the residence and/or to ensure that you can comply and/or are complying with the obligations imposed by this control order. Such monitoring may include but is not limited to:-
(a) a search of the residence or any vehicle controlled by you;
(b) removal of any item;
(c) inspection/modification or removal for inspection/modification of any article to ensure that it does not breach the obligations imposed by this control order;
(d) permitting the installation of such equipment as may be considered necessary to ensure compliance with the obligations imposed by this control order; and
(e) the taking of your photograph.6.1) You shall not permit any person to enter the residence, save for:
(a) your partner and children;
(b) your nominated legal representative as notified to the Home Office;
(c) in an emergency, members of the emergency services or health care or social work professionals;
(d) any person required to be given access under the tenancy agreement for the residence, a copy of which shall be supplied to the Home Office; and
(e) any person aged 10 or under.6.2) You shall not permit any other individual to enter the residence except with the prior agreement of the Home Office. In relation to those other individuals, you must supply to the Home Office the name, address, date of birth and photographic identity of the individual. The prior agreement of the Home Office shall not be required for subsequent visits by an agreed individual, but this does not prevent the Home Office withdrawing that agreement at any time.
6A) You shall not, outside of the residence:
(a) meet any person by prior arrangement, other than:
(i) a person referred to in obligation 6.1(a) to (e) above, or
(ii) for health or welfare purposes at an establishment on a list provided to and agreed by the Home Office before your first visit; or
(iii) for academic or training purposes at an establishment notified and agreed by the Home Office before your first attendance in accordance with obligation 16 below; or
(iv) for employment purposes at a place of employment notified and agreed by the Home Office before your first visit in accordance with obligation 15 below; or
(b) attend any pre-arranged meetings or gatherings (other than attending, but not leading, prayers at a mosque),
7) You shall not associate or communicate, directly or indirectly, at any time or in any way with the following individuals:save with the prior agreement of the Home Office. For the avoidance of doubt, a meeting shall be deemed to take place outside of the residence if one or more parties to it are outside of the residence.
Jutiar Wali Ali aka Kaiwan Hamidi
Ali Tawfik Mohammed Amin
Bestun Salim aka Farhad Fayzi aka Mirzayee Sarkawat
Saifaddin Muhammad Yaba
8) You may only attend the mosque at 169-171 Gladstone Street, Peterborough, PE1. You shall not be permitted to lead prayers, give lectures or provide any religious advice other than to your partner and children at your residence.
9.1) Subject to obligation 9.2 below you shall not:-
(a) bring or permit into the residence; or
(b) use, have, acquire or keep (whether in or outside the
residence, whether directly or indirectly);
any communications equipment or any equipment capable of connecting to the internet or components thereof other than one fixed line telephone in the residence and/or the dedicated line maintained by the monitoring company. This prohibition includes but is not limited to mobile telephones, SIM cards, fax machines, pagers, computers, public telephones, internet facilities and/or electronic storage devices including but not limited to zip drives and/or USB pen drives.
The fixed line telephone must on request be delivered up to a person authorised by the Secretary of State for inspection and approval prior to it being permitted into or to remain in the residence.9.2) It shall not be a breach of this obligation to permit a person to bring into the residence a mobile phone, provided that any such mobile phone shall remain switched off at all times whilst you are in the residence.
9.3) For the avoidance of doubt, obligations 9.1 and 9.2 mean amongst other things:-
(a) you may not use, have, acquire or keep any communications equipment or any equipment capable of connecting to the internet or components other than one fixed line telephone in the residence and/or the dedicated line maintained by the monitoring company;
(b) you may not permit whilst you are in the residence any other person to use a mobile phone in the residence; and
(c) you may not connect to or use by any means, directly or indirectly, the internet at any time.10) Prior agreement must be given to the Home Office before you may apply for, or have in your possession, any passport, identity card, travel document(s) or travel ticket which would enable you to travel outside the UK.
11) You must notify the Home Office of any intended departure from the UK and notify it of the port of embarkation and disembarkation. You must also notify the Home Office if and when you intend to return to the UK and report to the Home Office immediately upon arrival that you are or were subject to this control order. The requirement to report on arrival shall continue to apply whether or not this control order remains in force at the time of your return to the UK.
12) You are prohibited from entering or being present at any of the following:-
(a) any airport or sea port; or
(b) any part of a railway station that provides access to an international rail service
without the prior agreement of the Home Office.13) You shall not maintain or use more than one account ("account" includes accounts in which you have an interest or over which you have any element of control). Such account must be held with a bank or other approved financial institution within the UK. The following information must be provided to a person authorised by the Secretary of State:
(a) statements of the permitted account on a monthly basis, to be provided within 7 days of their receipt.14) You shall not transfer any money or send any documents or goods to a destination outside the UK (whether yourself or through an intermediary) without the prior agreement of the Home Office. For the purposes of this obligation, documents should not be taken to include personal letters written by you.
15.1) Within 7 days of notification of the imposition of this obligation, you must provide the Home Office with confirmation that you are not employed, or the following details of any current employment:
(a) the name and address of your employer; and
(b) the nature and location of your work.15.2) The Home Office will notify you in writing of areas of employment which are referred to in this obligation as "notified areas of employment". You must not commence any employment in a notified area of employment unless and until
(a) you have provided the Home Office with:
(i) the name and address of your intended employer;
(ii) the nature and location of your work; and
(iii) if known, the date on which you expect the employment to commence; and
(b) you have received approval in writing from the Home Office for the new employment.15.3) Where you are already employed in a "notified area", you must cease employment immediately if you receive notification in writing from the Home Office to do so.
15.4) Where any approval referred to in obligation 15.2(b) above is subject to conditions, you must comply with those conditions.
15.5) In relation to any new employment which is not in a ''notified area of employment'' that you have applied for or have commenced since the notification of the imposition of this obligation, you must provide the Home Office:
(i) the name and address of your new or intended employer; and
(ii) the nature and location of your work
within 7 days of your new employment commencing or, if earlier, within 7 days of your applying for the new employment.
16.1) You must not commence any training course or academic study course provided by a third party, unless and until:
a) you have provided the Home Office with:
i) the name and address of your training course provider or academic study course provider;
ii) the nature and location of your training course or academic study course;
iii) if known, the date on which you expect the training course or academic study course to commence; and
16.2) Where any approval referred to in obligation 16.1(b) is subject to conditions, you must comply with these conditions.b) you have received approval in writing from the Home Office for the training course or academic study course.
16.3) Where you are already undertaking a training course or academic study course provided by a third party, you must provide the Home Office, within 7 days of notification of the imposition of this obligation, with the details required under obligation 16.1(a). You must immediately cease your involvement in the training course or academic study course if you receive notification in writing from the Home Office to do so.
(a) "[AE] has expressed extreme views".
(b) "[AE] is a well known figure in the Iraqi Kurd community. He is regarded as a spiritual adviser. He is considered to be knowledgeable about spiritual matters. That he has been and may still be regarded as a spiritual counsellor is concerning given his extremist views";
(c) "[AE] has been in contact with AI associated Iraqi Kurds in the United Kingdom".
(d) "[AE] has delivered lectures at a mosque in Peterborough. The Security Service assesses that these lectures were of an extremist nature";
(e) "Prior to the imposition of the control order [AE] was involved in document and identity fraud on behalf of his extremist contacts. He acted as a middle man, obtaining document on behalf of his associates. He has also been involved in fraud for his own personal advantage, which includes the claim of double benefits";
(f) "[AE]'s home address was searched in August 2005. The interrogation of the hard drive of the computer recovered from the search showed that the user of the computer had visited websites selling toy remote-controlled helicopters and cars. The search also recovered a large remote-controlled car. The computer interrogation has also showed that the user had examined the possibility of purchasing low light pinhole cameras. A variety of paperwork in his name was found in the search.";
(g) "the Security Service assesses that [AE] was a member of the Islamic Movement of Kurdistan";
(h) AE is assessed by the Security Service to have "both extremist and criminal associates in Peterborough" and he "has been involved in radicalising Muslims in Peterborough and he may remain in contact with those associates".
(i) the assessment of the Security Service is that AE "is a leading figure in Islamist extremist circles in the Peterborough area"; and
(j) the Secretary of State does not accept that Taha Muhammed is AE's genuine identity and assesses that "this is no more than an alias".
1. The procedural scheme authorized by the Schedule to the 2005 Act is given effect to by CPR Part 76. The overriding objectives of the Civil Procedure Rules are modified by rule 76.2 which requires the court not to disclose information which is contrary to the public interest. Rule 76.1(4) provides that disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Rule 76.22 also provide that the exclusion of a relevant person or his legal representative from hearing to secure that information is not disclosed if that would be contrary to the public interest. Rules 76.23 and 76.24 provide for the appointment of a special advocate whose function is to represent the interests of a relevant party but who may only communicate with the relevant party before the closed material is served on him except with the permission of the court (rules 76.25 and 76.28(2)). In this case, there were, I was told, communications in the form of a meeting between ,on the one hand, junior counsel then acting as one of the Special Advocates and on the other hand AE before the closed material was served on that Special Advocate but I do not know what was discussed.
2. Rule 76.26 provides that the ordinary rules concerning evidence and the inspection of documents are not applicable. It is provided that evidence may be given orally or in writing while the court may admit evidence which would not be admissible in a court of law. Rule 76.26(5) permits every party to adduce evidence and to cross-examine witnesses during any part of a hearing from which he and his legal representatives are not excluded.