Neutral Citation Number: [2008] EWHC 585 (Admin)
Case No: PTA/34/2006
PTA/20/2007
PTA/21/2007
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

AND IN THE MATTER OF PROCEEDINGS UNDER
THE PREVENTION OF TERRORISM ACT 2005

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20  March 2008 
Before:

MR JUSTICE SILBER
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Between:

	Secretary of State for the Home Department	Applicant	
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	AE	Respondent	

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Lisa Giovannetti and Andrew O’Connor (instructed by Treasury Solicitor) for the Applicant
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
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Judgment

Mr Justice Silber: 
I.   Introduction.
1. This open judgment relates first to the question of whether the renewed control orders imposed by the Secretary of State for the Home Department (“the Secretary of State”) on the respondent (“AE”)   in September 2006 (“the 2006 Control order”) and in September 2007 (“the 2007 Control order”) as well as the procedures adopted in this court in determining applications relating to those orders infringe AE’s rights under the European Convention on Human Rights (“the ECHR”).  This open judgment also deals with an appeal (PTA/21/2007) by AE   against   two of (but not all of) the modifications to the 2007 Control order imposed by the Secretary of State on 31 October 2007 (“the 31-October modifications”) first increasing the length of the curfew on AE from 14 hours to 16 hours and second extending the prohibition on visitors to his residence so that it applied not merely to curfew hours but also to non-curfew hours.  A further appeal by AE (PTA/18/2007) against the decision of the Secretary of State to refuse to allow AE to attend AS-level courses in Human Biology and in Chemistry has been adjourned so that both parties can adduce further evidence.
2. There is also a closed judgment in this case which deals with the closed material as well as the submissions and evidence in the closed hearings.  The reasons for the need for the closed judgment are first that AE and his legal representatives were not served with much of the material relied on by the Secretary of State and second that they were not present at those closed hearings in which the Special Advocate has represented the interests of AE in the way which I will explain later in this judgment. 
3. I have already handed down an open judgment in this case [2008] EWHC 132  (Admin)  dated 1 February 2008 (“the first open judgment”) in which I held (subject to certain significant deletions) that the procedures adopted hitherto in these proceedings had not infringed the article 6 rights of AE. I also gave a closed judgment   to supplement the first open judgment. There are also issues to be determined   in the present hearing as to whether AE’s article 6 rights were complied with first at   the subsequent   hearings in February 2008 and second looking at the entire picture in the entire proceedings namely in both the June 2007 hearings and those conducted in February 2008.
II. The Control order and the History of the Present Proceedings.
4. On 15 May 2006, the Secretary of State successfully applied to Collins J for permission to make a control order against AE pursuant to the provisions of sections 2 and 3 (1)(a) of the Prevention of Terrorism Act 2005 (“the PTA ”).  AE, who was born in 1976, is of Iraqi origin with an Arab father and a Kurdish mother and he has the right to remain in the United Kingdom.  The first control order, which was served on AE on 18 May 2006, contained obligations on AE which were very similar to those included in other control orders and which were held by Sullivan J [2006] EWHC 1623 (Admin) in a judgment upheld by the Court of Appeal (Secretary of State for the Home Department v JJ and others [2007] QB 446)   to constitute a deprivation of liberty as being contrary to article 5 of the ECHR.
5. The Secretary of State then revoked the existing control order and made the 2006 control order against AE on 11 September 2006 after permission had been granted by Lloyd Jones J.  The only matter before the court   at the time of the hearing in June 2007 was the review of the 2006 order when both closed and open sessions were held culminating in closing submissions.  At that stage, the Special Advocate had not challenged the application that the material, which the Secretary of State wished to remain closed, should remain closed and there had been no hearing to determine whether AE’s article 6 rights had been infringed.  Counsel for AE and for the Secretary of State as well as the Special Advocate all agreed during the June 2007 hearings that I should not give judgment until after the House of Lords had given their reasons and their decision in three conjoined appeals due to be heard in early July 2007.  I duly adjourned the hearing. This approach has been justified by the reasoning of the Appellate Committee in Secretary of State for the Home Department v MB and Secretary of State for the Home Department v AF [2007] UKHL 46; [2007] 3 WLR 681; Secretary of State for the Home Department v JJ and others [2007] UKHL 45; [2007] 3 WLR 642 and Secretary of State for the Home Department v E and another [2007] UKHL 47; [2007] 3 WLR 720. 

6. The Appellate Committee gave its reasons in all three cases on 31 October 2007 and it was common ground that a further hearing had to take place. By then, the Secretary of State had imposed the 2007 Control order, which is the subject-matter of one of the appeals before me. As a result of the decision of the Appellate Committee, the Secretary of State later on 31 October 2007 altered the conditions of the 2007 Control order. The terms of the 2007 Control order after this modification are set out in Part 1 of the Appendix to this judgment.  As I have explained, the appeal against  the 31 October 2007  modifications only challenges the  provisions then introduced increasing the length of the curfew on AE from 14 hours to 16 hours and extending the prohibition on visitors to the residence so that it applied not merely to curfew hours but to also to non-curfew hours. To complete the chronology, I repeat that the first open judgment was handed down on 1 February 2008
III. The Statutory Regime.
7. In order to understand the issues which I have to determine, I must explain the statutory regime contained in the PTA, which distinguishes between "derogating" and "non-derogating" control orders. The former category imposes obligations which are incompatible with the right to liberty under article 5 of the Convention. They may only be made if certain specified conditions are satisfied but none are applicable to the control orders with which this judgment is concerned. Only non-derogating orders have been made against AE and they have been made (as they have to be) by the Secretary of State with the permission of the court (except in cases of urgency) and they are subject to the supervision by the court pursuant to section 3 of the PTA.
8. The criteria, which have to be satisfied before a non-derogating control order may be made by the Secretary of State, are set out in section 2(1) of the PTA, which provides that: 
"The Secretary of State may make a control order against an individual if he – 
(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and 
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."

9. A non-derogating order lasts for a period of twelve months beginning with the date on which it is made but it may be renewed on one or more occasions (section 2(4) of the PTA).  As I explained, a renewal occurred when the 2007 Control order was made.  Section 3 of the PTA provides for supervision by the Court of such orders.  Section 3(2) of the PTA provides where the Secretary of State makes an application for permission to make such an order, the function of the court is to consider whether the Secretary of State’s decision that the grounds to make that order is obviously flawed and the court may give permission unless it determines that the decision is obviously flawed.
10. An issue which has to be resolved on the  application to review the 2006 control order  is whether it is possible to impugn the decision of the Secretary of State in making the 2006 control orders that she or her predecessor first “had reasonable grounds for suspecting that [AE] is or has been involved in terrorism-related activity” and secondly whether it was “necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on [AE]” . The approach to be adopted on these hearings is to apply the principles of judicial review (s3 (11) of the PTA). If the decision of the Secretary of State in relation to a control order is flawed, the courts can quash the control order of one or more of its obligations or direct its revocation or modifications to it; otherwise the Court has to order that the Control order continues in force.
11. By virtue of section 3(12) of the PTA, if a court determines that a decision of the Secretary of State is flawed, it may quash the order, quash one or more of the obligations imposed in the order or it may give directions to the Secretary of State for the revocation of the order or for the modification to the obligations it imposes.  
12. By section 7 (2) (b) of the PTA, the Secretary of State is empowered to relax or remove an obligation imposed by an order while it is in force.  Paragraph 8 of the Schedule to the PTA empowers the Secretary of State when a control order or renewal of a control order is quashed, to make a new order “to the same or similar effect”.
13. Section 10 of the PTA confers the right of appeal against the renewal of an order or its modification without the consent of the controlled person and that is the right, which is being exercised by AE in the present case in respect of the renewal in 2007 of 2006 the control order and of the 31 October modifications.   Under section 10(4) of the PTA, the function of the court on an appeal against renewal is to determine whether the decision of the Secretary of State that it is necessary for an order imposing obligations to continue in force was flawed and whether the decision that the obligations to be imposed by the renewed order are “necessary” was flawed.
14. The basis of the 2007 order and the previous control orders was that the Secretary of State considered that:
“(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”. 

15. The Secretary of State said the basis of his decision to issue both the control orders was explained to AE in this way:
“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”.

16. After the Appellate Committee gave its decisions in October 2007, a case management conference was held and the Special Advocate and counsel for AE were asked to explain what further material ought to be disclosed. After this information was supplied, the Secretary of State served  further material, which I called “the December disclosure” in the first open judgment and it  is set out in part II of the Appendix to his judgment. Nevertheless AE still does not know a very substantial part of the closed material but, as I have explained, a special advocate has been appointed and the important issue raised on this application is whether looking at the whole picture, AE’s article 6 rights have been complied with in respect of the February hearings and also the proceedings as a whole.
17. The approach to be adopted on the substantive hearing is to apply the principles of judicial review (s 3(11) of the PTA). 
IV The issues
18. As I have explained, I have in the first instance to consider whether the article 6 rights of AE have been complied with in respect of the February hearings and in respect of the proceedings as a whole looking at the whole picture. If they have not been complied with in respect of any part of the closed material, I will have to put the Secretary of State to her election to decide if she wishes to disclose this closed material because if she does not, she will have to withdraw it from her case.  The matters now before the court require consideration of whether: 
(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) [70] 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).

19. All issues have to be considered “having regard to the state of affairs that exists at the time that the court reaches its decision” (Secretary of State for The Home Department v MB [2007] QB 415 [40] per Lord Phillips of Worth Matravers CJ and which was recently followed by Secretary of State for the Home Department v AF [2008] EWCA Civ 117 [26] per Sir Anthony Clarke M.R.).  In the latter case, it was said by the Master of the Rolls [30] no doubt because human rights are involved that intensive scrutiny is needed to determine the necessity of each of the obligations imposed.
20. It is accepted by Mr Davies correctly in my opinion that in the light of the reasoning of the House of Lords in E it is not open to AE to argue in reliance on section 8 of the PTA that first there has been a failure on the part of the Secretary of State to prosecute AE and that second therefore the control order should not have been made
V. The Article 6 Issue
(i) Introduction 
21. I have already explained in the first open judgment first the effect of the speeches in MB (paragraphs 15 to 21) and second the principles applicable in determining whether the article 6 rights of a controlled person have been safeguarded in cases in which a special advocate has been instructed because there was closed material which could not be disclosed to the controlled person (paragraphs 28 to 31). All counsel agreed during the course of the February hearings that I had identified the correct principles. So I will now apply them in determining whether AE’s article 6 rights have been infringed in respect of the evidence adduced since the July hearings and then considering in respect of all the evidence which has been adduced on these applications whether AE has received a fair hearing to which he is entitled under article 6 of the ECHR. To understand the submissions, it is necessary to bear in mind the way in which the special advocate regime operates and details of it are set out in paragraphs 11 to 14 of the first open judgment and for ease of reference, I have set them out in part III of the Appendix to this judgment.
22. Mr. Michael Supperstone QC, who has been the Special Advocate throughout the hearing and the sole Special Advocate at the February hearing, did not dispute at the end of the evidence at the February hearings that AE’s article 6 rights had by then been complied with. Nevertheless, in Baroness Hale’s words in MB [66] my task and that of the Special Advoctes has been and remains “to probe the claim that the closed material should remain closed with great care and considerable scepticism”.
(ii) AE’s case

23. Mr Davies describes the hearings on these applications with much of the evidence being closed and so outside the knowledge of AE and his legal advisers as being “Kafkaesque” and grossly unfair to AE without it coming anywhere near satisfying the requirements of article 6. The basis of this contention is that AE has not been given the basic information necessary to mount an effective defence to the Secretary of State’s case even after taking account of the December disclosure, which is set out in paragraph 32 of the first open judgment.

24. Mr. Davies’s eloquent and powerful complaints fall essentially under three heads. First, he says that the evidence and allegations disclosed to AE are too vague, too unreliable or too peripheral to the central allegations to enable AE to put forward a positive case or to undermine and defeat the Secretary of State’s case. Second, Mr. Davies contends that as AE does not know what is stated in the closed evidence, he is unable to give evidence about it or to call independent evidence, which might undermine or explain the closed material.

25. Mr. Davies’s third complaint is that that the participation of the special advocates in AE’s case cannot be treated as making up for the deficiencies in the procedures adopted on these applications so as to make the hearings article 6-compliant. Shortly after he was instructed and before the closed evidence was served, the Special Advocate took instructions from AE but, of course, at that stage he did not know any of the evidence or material relied on by the Secretary of State. Mr. Davies points out that when later the Special Advocate was given the closed evidence or material, he was not then permitted to confront AE with material or evidence. Thus the position was that any cross-examination of the Special Advocate can only have been based upon testing evidence rather than by putting forward an assertive case on AE’s behalf.

(iii) The case for the Secretary of State 
26. Miss Lisa Giovannetti contends that taking the proceedings as a whole, AE’s article 6 rights have not been infringed. She adopted her submissions which had been made in the hearing leading to the first open judgment and   which fall broadly under three heads. First, she contends that the Strasbourg case law and the decision in MB require this court to bear in mind that there is no minimum level of information which must invariably be given to a controlled person in every case because defects in the open case can be, and indeed in this case have been, remedied by the use of the special advocate procedure. Second, she submits that the article 6 rights of a controlled person will only be interfered with   if   looking at the process a whole, there is significant injustice to the controlled person, which she says is a high threshold. Finally, she contends   that on the facts of the applications now before the court, the article 6 rights of AE have been complied with.

27. It is common ground that the starting point for considering whether the article 6 rights of a controlled person have been complied with is that  the use of the special advocate procedure places the controlled person at a “ grave disadvantage” ( per Lord Bingham [35] and Lord Brown[90] in MB ). A similar view was expressed in his speech on that appeal by Lord Carswell [82] when he referred to the “the grave extent of the disadvantage”. Although the present applications are civil and not criminal proceedings, as Lord Bingham explained in MB [24] a controlled person is entitled to such measure of protection as is commensurate with the gravity of the potential consequences (see also Baroness Hale at [65] , Lord Carswell at [82] and Lord Brown at [90]). In this case as in the case of  all those subject to  control orders , the consequences of being subject to such an order are very serious as is shown by the terms of the control order which appear  in part 1 of the Appendix to this judgment. I will attach considerable weight to this need for a suitable measure of protection for AE.

28. Against that background, I will turn to consider first if there is a minimum level of detail which has to be given in open documents to a controlled person to ensure that his or her article 6 rights are preserved, second what level of injustice has to be shown before the article 6 rights of AE will have been regarded as having been infringed and finally whether AE’S article 6 rights have in fact been infringed on these applications.

(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? 

29. It is appropriate to start by referring to the passages on which Mr. Davies places substantial reliance in the speech of Lord Bingham in MB, which consisted of conjoined appeals not only of MB but also of AF. First, Lord Bingham said about the facts of the MB case:
“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…”

30. Mr. Davies submits that Lord Bingham’s approach to the facts of MB and AF applies with great force (if not greater force) to the facts of this case with the result that AE’s article 6 rights have not been protected. It is important to appreciate that the majority of the Appellate Committee in both MB and AF   decided  first  to allow the appeals of the Secretary of State against  the decisions to quash the respective control orders and second  to remit these cases back to the judges to determine if the article 6 rights of MB and AF had been complied with notwithstanding the paucity of the information disclosed to the controlled person..

31. Significantly, the kind of complaint rejected by the Appellate Committee when allowing the appeals of the Secretary of State in the cases of MB and AF were very similar to the submissions made by Mr. Davies in the present case especially as Lord Bingham pointed out that in MB, the Court of Appeal [2007] QB 415 [27] thought that the justification for the control order in that case lay in the closed material. Lord Bingham, as I explained in paragraph  29 above said that the open material in MB was “a bare unsubstantiated assertion which he could do more than deny”. In AF, the trial judge (Ouseley J) found [  2007] EWHC 651 (Admin) that the essence of  the Secretary of State’s case against AF was in the closed material and that the controlled person AF did not know what the case against him was[61]. Lord Bingham said [42] of AF’s case that “the case made by the Secretary of State against AF was in its essence entirely undisclosed to him”.

32. It is noteworthy that the Appellate Committee decided not to adopt the decisions of Sullivan J at first instance in  MB, which was that the article 6 rights of this controlled man had not been complied with or that there had to be an irreducible amount of material disclosed to the controlled person for their article 6 rights to be preserved.. Instead, they concluded that the proceedings in both MB and AF   may or may not have infringed AE’s article 6 rights but that the ultimate  decision would have to be reached in the light of the special advocate procedure and a proper scrutiny of the closed material as well as how the special advocate procedure worked out in that case. In other words, the decisions   of the Appellate Committee in each case   and the ratio of each  was that the article 6 rights of MB and AF might have been complied with even though very scant or no information had been provided in the open material disclosed to the controlled persons while the case against them was to be found in the closed material. Thus it follows that the basis if not the ratio of MB and AF is 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 as otherwise the appeal in AF would have been dismissed.

33. There are also three other reasons why I have concluded with the greatest possible respect  that  the statements of Lord Bingham on which Mr. Davies relies cannot be regarded as indicating that there has invariably to be a minimum amount of material  disclosed to the controlled person in open proceedings to  ensure that the article 6 rights of the controlled person are preserved. First, in MB,   Lord Bingham explained (with my emphasis added) that “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” ([35] and per Lord Brown [90]). My task is to ascertain if there has been not merely injustice but “significant injustice” as a result of the proceedings after “looking at the process as a whole”.  The references to “the process as a whole” clearly cover not only the open proceedings but  also the closed proceedings using the special advocate procedure.

34. Second, in so far as it is suggested by Mr. Davies  that these statements  of Lord Bingham (which are set out in paragraph 30 above) mean that what occurs in the special procedure is to be ignored, I do not agree as such statements do not represent the views of the majority or even the minority of the Appellate Committee . It is significant in this respect  not only did none of the other members of the Appellate Committee express similar views but Baroness Hale concluded [67] that “any appeal court should be slow to interfere” with Ouseley J’s view at paragraph 167 of his judgment that he did not regard  the process regarding  AF  as having been “without a substantial measure of procedural protection”.  As I have explained in paragraph 31 above, it is noteworthy that in AF, the trial judge (Ouseley J) found [ 2007] EWHC 651 (Admin) that the essence of  the Secretary of State’s case against AF was in the closed material and AF did not know what the case against him was[61].

35. Third, there may be in Baroness Hale’s words in MB “a sufficient measure of procedural protection [for the controlled person] even though the whole evidential basis for the basic allegation [relied on for justifying the control order] which has been explained to him, have not been disclosed” ([74]). There would be sufficient procedural protection in the words of the judgment of the Strasbourg court judgments which I quote in full in  paragraph 44 below   if “the limitation on [those] rights [has been] sufficiently safeguarded by the procedures followed by the judicial authorities”.

36. So my conclusion is that there is no minimum level of information which has invariably in every case   to be set out in the open material to ensure compliance with   the article 6 rights of the controlled person. Indeed the task of the court in deciding if there has been an infringement of the controlled person’s article 6 rights is to look  with the appropriate intense care described in MB at what occurs in the closed proceedings as well as considering the open evidence and the open proceedings.

(v) What level of injustice has to be shown before the article 6 rights of AE will have been regarded as having been  infringed?

37. I inferred from Mr. Davies’s submissions that he considered that the threshold for determining if AE’s article 6 rights had been infringed was the same as for any party to ordinary civil proceedings.  As I have explained in paragraph 22 above, my task is and has been to ascertain if there has been not merely injustice but “significant injustice” as a result of the proceedings after “looking at the process as a whole”.

38. That entails as I have explained in paragraph 22 above, that   the obligations on the Special Advocate and myself   in Baroness Hale’s words in MB [66] are and have been “to probe the claim that the closed material should remain closed with great care and considerable scepticism”.

39.A  As I explained in paragraph 21 of   the first open judgment, according  to the majority of the Appellate Committee in MB, there would only be few cases in which the court would find it necessary to put the Secretary of State to her election of either disclosing material or not relying on it. In other word the threshold for showing an infringement with AE’s article 6 rights is not low because in Lord Carswell’s words (with my emphasis added) “there is a fairly heavy burden on the controllee to establish there has been a breach of article 6” [85] and that in Lord Brown’s words  again with my emphasis added “I agree  further that the special advocate procedure, highly likely,  though that it is that it will in fact safeguard the suspect against significant injustice, cannot invariably be guaranteed to do so” [90].  It was for those reasons that I suspect that Baroness Hale concluded (with my emphasis added) that “there may still be a few cases in which under the scheme set out in [the PTA and the rules made under it][ a substantial and sufficient measure of procedural protection] is not possible” [68]. It is very important to remember that Lord Hoffmann dissented but on the basis that   “in principle the special advocate procedure provides sufficient safeguards to satisfy article 6” [54].
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?
40. In order to determine if the rights of a controlled person have been adequately safeguarded, it is necessary to consider just how the Special Advocates   have sought to protect the interests of AE. Of course, it must not be forgotten that the Special Advocates could have sought leave to ask specific questions of AE if they needed instructions on certain issues but in this case they did not consider it necessary to avail themselves of this important right. I have no doubt that if the Special Advocates appointed in this case had felt the need to do so, they would have sought such leave but they did not do so; I can therefore infer that they did not feel the need to do so.  The Special Advocate did ask the Secretary of State for information about her case before the closed hearing took place and duly received answers. Furthermore, both the Special Advocates did speak to AE before they were served with the closed evidence but I obviously do not know what was discussed or communicated. Witness O was cross-examined extensively and skillfully in the closed hearings in respect of all the significant matters in the closed evidence. 

41. I was left with clear impression both during and after   the cross-examination of witness O (who was the main witness for the Secretary of State) that Mr. Supperstone, (who was assisted by Mr. De La Mare but for only the June 2007 hearing) had carried out a carefully prepared comprehensive and a very penetrating cross-examination of witness O especially during the closed sessions at the June 2007hearings when most of the evidence was adduced. This impression was confirmed when I subsequently read the transcripts and my notes of the cross-examination. The special advocates had gone to great lengths to analyze the evidence relied on by the Secretary of State and to use in cross-examination material which might undermine the evidence of witness O or further AE’s case. This is a significant factor in determining whether AE’s article 6 rights have been protected. I should add that in the light of the need for the closed evidence to be closely scrutinized, I tried to take a more inquisitorial and more interventionist role than I would have adopted in conventional civil proceedings as I was aware of the need for AE’s interests to be properly safeguarded. Indeed the evidence given by witness O when cross-examined was fatal to some of the Secretary of State’s case.

42. I appreciate that, in the words of Lord Bingham which I have quoted in paragraph 27 above, the starting point is that the special advocate procedure places the controlled person at a “great disadvantage” and that my task is again in Lord Bingham’s words “to decide looking at the process as a whole whether a procedure has been used which involved significant injustice to the controlled person”. In performing this task, “it is the final picture that needs to be looked at” (per Collins J in Re Bullivant [2006] EWHC 2398(Admin) [11]).

43. The final picture that emerges in respect of the February hearings and also of  the June hearings is, as I have explained, first   that witness O was effectively and carefully cross-examined on the closed material. Second, detailed and thoughtful    submissions were made by the Special Advocate on the closed material. Third, it was the efforts of the Special Advocate which led to the December disclosure which is to be found in part II of the Appendix to this judgment. Fourth, the Special Advocate, as I have explained, did not dispute that that AE’s article 6 rights had been complied with and this has to be considered in the light of the fact that both Special Advocate spoke to AE before the closed material was disclosed to them although I do not guess at what was said. In addition, AE has made a number of witness statements and he has been able to explain why he refutes the open evidence which sets out in many ways an outline of the case for the Secretary of State although I readily agree that it goes nowhere near setting out the full case against AE.

(vii) Conclusion

44. I must now apply the approach advocated by the Strasbourg Court on various occasions and which has been quoted with approval by four members of the Appellate Committee in MB, which was (my emphasis added) that: 
“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 [52] and Fitt v United Kingdom (2000) 30 EHRR 480 [45] quoted by Lord Bingham of Cornhill [32] whose approach was adopted by Lord Brown [90]  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 [62]) and in Rowe v United Kingdom (2000) 30 EHRR 1 [61] quoted by Lord Carswell [80])  

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 [6]). 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.

45. The next issue to be determined is whether in the words of the Strasbourg decisions, which I quoted in paragraph 44 above “any difficulties caused to the defence by a limitation on its rights [by not disclosing the closed material] must be sufficiently counterbalanced by the procedures followed by the judicial authorities”.  In considering this, I bear in mind the principles set out in paragraph 39C above. The procedures adopted in this case  were essentially the scrutiny of the closed material by the court and by the Special Advocate procedure which I have described in paragraphs 11 to 14 of the first open judgment as well as the December and the other disclosures made previously to AE of the case for the Secretary of State.

46. I have explained already in paragraph 37 above that my task is to ascertain if “looking at the process as a whole, whether a process has been used which involved a serious injustice to the controlled person” and that process entails important obligations being imposed on both the Special Advocate and myself in the words of Baroness Hale set out in paragraph 22 above, having “to probe the claim that the closed material should remain closed with great care and considerable scepticism”.

47.  Having carried out that exercise and reminded myself that these are not criminal proceedings, I have concluded that in the light of the approach in MB  and AF to which I have already referred,   the use of the Special Advocate procedure in this case has not caused in the words of the test in MB and AF any “serious injustice” to AE in the light of the process as a whole. In referring to the process as a whole, I mean not merely the submissions of counsel, the way in which the Special Advocate has been able to challenge and has actually challenged the closed material in the careful and thorough cross-examination of witness O, the witness statement of AE and the December disclosure but also the nature of the remaining closed material and how it could have been challenged by AE if he had known about it. I have explained my reasons for that conclusion in my closed judgment accompanying this judgment and also in the closed judgment accompanying the first open judgment. I also bore in mind that as I explained in paragraph 39B above, even in case where the controlled person has not been informed the essentials of the case against him or her or the evidence relied on by the Secretary of State, three members of the Appellate Committee concluded that it would be exceptional for there to be a finding of infringement with the article 6 rights of a controlled person when the special advocate procedure has been used. 

48. I considered whether AE’s article 6 rights may have been infringed because he was unable to call evidence which might have undermined the case for the Secretary of State or enhanced his case. This is a problem for all controlled persons who do not know the closed material but I concluded that this inability did not mean that AE’s article 6 rights were infringed for two reasons. First, there is a high threshold which has to be reached before an article 6 infringement can be established as I have explained in paragraph 39 above.  Second, I have explained in the closed judgment that if AE had known the closed case, it is certainly not certain that he would have been able either personally or through witnesses to advance his case or to undermine the case for the Secretary of State more than he has been able to do so by using his own witness statements for those purposes.  Much of the closed evidence was neither exculpatory nor relevant to my decisions.

49. Therefore, I am satisfied that the difficulties caused to AE by not disclosing the closed material were in the words of the Strasbourg Court referred to in paragraph 44 above  “sufficiently counterbalanced by the procedures followed by the judicial authorities” and that is the way in which the Special Advocate procedure has worked in this case.

50. In reaching this conclusion, I have not overlooked  Mr. Davies’ submissions about the inadequacy of the special advocate procedure in respect of which he sought to derive assistance from  the February 2007   House of  Lords and House of Commons  Joint Committee on Human Rights Eighth Report on Counter Terrorism Policy and Human Rights (Counter Terrorism Bill) (HL Paper 50 and HC 199) which repeats its earlier criticisms of the special advocate procedure as  “that the  system of special advocates, as currently conducted, fails to afford individuals a fair hearing, or even a substantial measure of procedural justice” . I obviously bear in mind the conclusions of this  prestigious committee  but my task is to apply what was explained in MB in the House of Lords;  I must follow those principles even where ( as is the case here ) they are in conflict with the views of the Joint Committee.

51. Additionally, I should add that if, which is not the case, I had been in any doubt as to whether the AE’s article 6 had been infringed, I would have been fortified in reaching the conclusions that they had not been infringed for two additional reasons, which are
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 [32])”.  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)” [58]; 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.

52. Thus AE’s rights under article 6 have been safeguarded in this case. I have been fortified in reaching that conclusion by the fact that it accords with the reasoning of the majority in MB that as I explained in paragraph 39 above, it would only be in a few cases that the special advocate procedure  would not safeguard the article 6 rights of the controlled person. I have already explained why three 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.

V. Are there reasonable grounds for suspecting that AE was or had been involved in terrorism-related activity?

(i)	Introduction
53. The Secretary of State contends that she had reasonable grounds for suspecting that AE was or had been involved in terrorism-related activity while Mr. Davies strongly disputes this contention. There is however common ground that the approach which I should adopt was that explained by  Lord Phillips  when giving judgment in Secretary of State v MB [2007] QB 415 when he said (with Mr. Davies’ added underlining included ) that:
“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”.

54. AE has already explained his teaching, preaching and beliefs in some detail in his second witness statement. He has stated that he is not an extremist or a radical but that he has “on many occasions publicly condemned terrorism or any illegality whether it be in this country, Iraq or anywhere else in the world”. In his first witness statement, AE has denied “each of the specific allegations of terrorism-related activity that are made against me within the open material”.  
55. In his witness statements, AE explains that he has never been a member of the Islamic Movement of Kurdistan (IMK) and that he has never been involved in a document or identity fraud – either for himself or on behalf of his contacts. He also says that he has no links to Ansar Al Islam (“AI”) or Ansar Al Sunnah or any association with or links to Al- Qaida or Al-Qaida in Iraq. He also denies knowingly having any association with the six individuals mentioned in the open evidence of the Secretary of State.
56. AE has also said that he has never been involved in providing support for the jihadist insurgency in Iraq nor has he been involved in radicalizing individuals in the United Kingdom.  He also says that he “does not knowingly have any Islamist extremist contacts either in the UK or abroad”.
57. In essence, AE denies all the allegations made against him in the open evidence and his case is that he poses no risk to the public including the armed forces nor will he ever pose such a risk. He explains that he is a peace-maker in his home town in England in respect of local tensions between various sections of the community. 
58. I should explain that I was concerned about the weight which I and the Secretary of State should attach to the assertions of AE in the light of the fact that he is one of the Imams to the Iraqi community in his home town in England with the result that he should be regarded as a religious leader and a man of god. This has to be considered against the background that the case for the Secretary of State has explained in the December disclosure that “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”. It is also relevant that an e-mail from AE’s solicitors dated 10 June 2007 was adduced by AE’s counsel and it showed serious dishonesty on AE’s part as he was, for example, receiving housing benefits while receiving rent from a friend. The Secretary of State’s case is that the evidence shows first that AE clamed housing benefits in respect of two public sector tenancies while accepting rent from one of them and second that AE and his wife/partner did not inform the benefits agency that they were living as a family and so received benefits as two separate households. Although AE has sought to explain this in his most recent witness statement, I am satisfied that AE was dishonestly receiving housing benefits to which he was not entitled. This means that he is not entitled to any presumption that as a religious leader and man of god that he was a man of integrity and of good character. Of course this behaviour  does not demonstrate involvement in terrorist-related activity and I shall not regard it as such.
59. It is important not to forget that the issue under consideration is not whether AE is a terrorist but whether the Secretary of State “has reasonable grounds for suspecting that [AE] is or has been involved in terrorism-related activity”. I have taken into account all the evidence of AE and especially his denials of the Secretary of State’s case as well as assuming that he would strongly dispute all the closed evidence if he had seen it. Nevertheless when I consider all the evidence in its entirety, I have reached the conclusion that the Secretary of State had reasonable grounds for suspecting AE is or has been involved in terrorism-related activities because a combination of factors justifies this conclusion that there were reasonable grounds for that suspicion. The decision of the Secretary of State to impose a control order was not in any way flawed and cannot be impugned.
60. In essence, I accept that the Secretary of State had reasonable grounds to believe that AE  had received terrorist training and had taken part in terrorist activities; that he was also involved in providing support for the Jihadist insurgency in Iraq, and in radicalising individuals in the United Kingdom; that he is a well-known figure in the Iraqi Kurdish community and  had expressed extremist views; that he has been in contact with AI associated Iraqi Kurds and others with extremist connections; and that he is a leading figure in Islamist extremist circles in the town in which he lives. Indeed even if I am wrong, any combination of any two of  these actions would justify the Secretary of State having reasonable grounds for suspecting that AE had been or was involved in terrorism-related activities. The full reasons for my decision are set out in the closed judgment accompanying this judgment.
61. For the purpose of completeness I should explain that I did not attach any importance to three matters in concluding that the Secretary of State had reasonable grounds for suspecting AE is or has been involved in terrorism-related activities.
62. First, I have not attached any importance to the fact that when AE’s home address was searched in August 2005, an interrogation of the hard drive of the computer recovered from the search showed that a user of the computer had visited websites selling toy remote-controlled helicopters and cars as well as examining the possibility of purchasing low-light pinhole cameras. There is no evidence that AE was using the computer especially as others had access to it. Nor was there any evidence either that it had been or that it could be connected to a telephone line or any device which would have enabled AE to download from the internet. In addition, there has been no disclosure of the hard drive to enable conclusions to be reached about the general usage of the computer or the context in which the material relating to the remote-controlled helicopters and cars as well as the pinhole cameras had been accessed.  Not surprisingly, counsel for the Secretary of State did not attach great importance to these matters especially as witness O did not suggest that this evidence was a major reason for suspecting AE of involvement in terrorist-related activities.
63. The second matter to which I did not attach any importance was the discovery of guns at a house which had 34 as its number. This was not a matter on which the Secretary of State ultimately relied and there is no evidence connecting AE with this discovery. Clearly if there had been such evidence, the Secretary of State would have attached great weight to it.
64. The third matter to which I do not attach any importance is the offer made by the Secretary of State to assist AE to return to Iraq.  Mr. Davies submits that the Secretary of State could not have suspected that AE was or had been involved in terrorism-related activities because she had informed AE by a letter dated 12 September 2007 that she was prepared to remove the control order if AE were to return to his country of origin which was Iraq. It is true that in this letter from the Border & Immigration Agency of the Home Office to AE’s solicitors, it was said that:
“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.”

65. Mr. Davies points out that the only effective arena for any terrorist activities amounting to violence was abroad and not in the United Kingdom. Thus it is said that the offer to AE to assist his return to Iraq undermines the Secretary of State’s case both that she had reasonable grounds  for suspecting that AE was or had been involved in terrorism-related activity and also that it was necessary to make a control order and to continue to have one in force against AE.
66. The response of the Secretary of State is that Mr. Davies’ contention is based   on the assumption that there would be no restraints upon AE’s activities if he was returned to Iraq.  Both Witness O and Ms. Catherine  Byrne, a senior official at the Home Office, have explained cogently  that this assumption is wrong because  they assessed that the Iraqi authorities would be able to take adequate steps to address the risk posed by AE should he return in a “controlled and visible” manner. Ms Byrne said that the Secretary of State wanted to ensure that AE’s return would be known to the Iraqi authorities. In other words, the inevitable inference from their evidence was that the Secretary of State was satisfied the Iraqi authorities would ensure that AE would be unable to participate in terrorist activities if AE accepted their offer because the Iraqi authorities would be warned by representatives of the Secretary of State of AE’s return; those authorities would then have take the appropriate steps to prevent AE from becoming involved in terrorist activities.  I have no reason to doubt this. For the purpose of completeness, if (which is not the case) I had been in any doubt about this conclusion, I would have been convinced that I should reach this conclusion because of what I was told in the closed hearing although I stress that I do not rely in any way on what was said in the closed hearing on this particular matter. So there is nothing in the letter of 12 September 2007, which in any way undermines the case for the Secretary of State in assessing whether she and her predecessors had reasonable grounds for suspecting AE’s involvement in terrorist-related activities or the necessity to impose a control order. 

67. I am conscious of the duty of the Secretary of State to ensure that the factors justifying a control order must be kept under review at all times and so I have considered the position not only at the time when the first control order was made but at all subsequent times to determine if such an order should be in force. In my view at all times when  the control orders were made  up till the present time, the Secretary of State has  had reasonable grounds for suspecting that AE was or had been involved in terrorism-related activities. I add that a further reason why the Secretary of State had reasonable grounds for suspecting that AE was involved in terrorism-related activities was AE’s continuing association with Islamic extremists, which I describe in paragraph 95 below. 
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?

68. As I have explained, the Secretary of State had reasonable grounds for suspecting that AE was or had been involved in terrorism related activity.  In my opinion, in determining if it was reasonable to make a control order, it is important to consider the nature of AE’s activities which were the subject of the Secretary of State’s reasonable suspicion. Those activities were that were he was providing support for the Jihadist insurgency in Iraq and in radicalising individuals in the United Kingdom. She also believed that he had received terrorist training and that he had taken part in terrorist activities. 
69. In my opinion at the time when each control order was made and also at the present time, the Secretary of State or her predecessors was 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.    Furthermore no factor has been put forward by AE to explain why the Secretary of State was not entitled so to conclude. I have already explained in paragraphs 64 to 66 above why the offer to AE to return him to Iraq does not indicate in any way that it was not necessary for purposes connected with protecting members of the public from a risk of terrorism to make a control order on AE.  Thus I conclude that it was necessary to impose a control order.
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?
(i) Introduction
70. As I have explained, it is common ground that that there is complete overlap between the functions of the court  on the appeal against the variation of AE’s control order  made on 31 October 2007 and  the renewal appeal insofar as it contains the challenged modifications. So it is necessary to consider both whether AE’s article 5 rights have been infringed and whether it was necessary to impose the post-31 October 2007 restrictions on AE, which increase the period of the curfew from 14 hours to 16 hours and which extend the prohibition of visitors from only applying during the curfew hours to a 24-hour ban on visitors.  Article 5 provides that “no one shall be deprived of his liberty” except in certain specified cases none of which apply in this case.
(ii) Submissions of counsel
71. Mr. Davies submits that AE’s article 5 rights have been infringed because the present control order after its amendment on 31 October 2007 is unnecessary and not proportionate. He points out  that the previous restrictions of a 14-hour curfew and a prohibition against unauthorised visitors but only during curfew hours was effective in  preventing AE from becoming involved in terrorist-related activities for almost 18 months. Thus he contends that no further restrictions on AE were either necessary or proportionate.  
72. Miss Giovannetti contends that the article 5 rights of AE have not been infringed and that it was necessary and proportionate to impose the post-31 October 2007 restrictions on AE.  The case for the Secretary of State is that when the original control order was imposed on AE in May 2006, it was then  considered necessary to impose a curfew of 18 hours and a restriction on visitors to his home at all times in order to control the risk posed by AE. As I have explained in paragraphs 4 and 5   above, after the decisions of Sullivan J and of the Court of Appeal in JJ, the May 2006 control order was revoked and it was then replaced by the 2006 control order. After the House of Lords gave its decisions  on 31October 2007, the Secretary of State sought to impose such obligations as were compatible with the reasoning in that case and as were necessary and proportionate to the risk posed by AE and  those obligations included  a curfew of 16 hours.
73. The case for the Secretary of State is that the pre-October 31 2007 control order has been effective to some degree but not completely in reducing AE’s ability to associate with Islamist extremists. Nevertheless the opinion of the Secretary of State is that despite being subject to control orders, AE remained a significant member of the Iraqi Kurdish extremist community and that he continued until the 31October 2007- modifications to associate with Islamist extremists. The Security Service consider  first that through such associates, AE possessed the contact and the knowledge to provide support to those involved in terrorism- related activities and second that those associates would have the capability to facilitate AE’s own involvement in terrorism-related activities.
74. The evidence of the Secretary of State is (as I have already explained) that she considers it necessary to increase AE’s curfew and to impose greater restrictions on visitors in the light of AE’s involvement in the facilitation of terrorist-related activity and the radicalisation of individuals in the United Kingdom. It is stressed on behalf of the Secretary of State that these increased restrictions introduced on 31 October 2007, which are the subject of the appeal, are necessary to disrupt as much as possible not only AE’s contact with these extremists but also  his potential to engage in or to support others involved in terrorism-related activities. The case for the Secretary of State on this issue is that the previous restrictions imposed on AE did not adequately prevent such activities and that it is now necessary to stop them in order to protect members of the public from the risk of terrorism.
75. The justification for the increased curfew is said to be that the less time that AE can spend outside his home, the less time he has for involvement in the activities which I have described in the last paragraph and that in consequence this   will reduce the risk which AE poses. It is also said that the longer the period that AE is restricted to one location, namely his residence, the easier it will be to monitor his activities. 
76. The case for the 24-hour restriction on visitors to AE’s home is that this will reduce the risk that he will involve himself in terrorism–related activity or share his expertise with others.  He can still exceptionally receive visits from legal representatives, children under the age of 10, members of the emergency services in the case of an emergency, anybody who has the right to access under the terms of his tenancy as well as anybody who has received clearance from the Home Office to visit him 
(iii)	The relevant legal principles relating to the restrictions which can be imposed on a controlled person

77.  Restrictions can only be imposed on a controlled person when those restrictions in the words of the PTA are   “necessary for purposes connected with protecting members of the public from the risk of terrorism”.   It is appropriate to start by considering the 16 hour curfew which, as the written skeleton argument of AE states correctly, is the “starting point and core element”. The question is therefore whether the 16-hour curfew in this case is sufficiently stringent to amount to a deprivation of liberty.  In JJ, the Appellate Committee was faced with an 18-hour curfew and the majority considered it to be a deprivation of the controlled person’s liberty contrary to article 5. Views were expressed on the compatibility of a shorter curfew with the article 5 rights of the controlled person but they were obiter although obviously of very great weight and assistance in the present case.
78. Lord Hoffman, who dissented, took the view that even with a curfew of 18 hours, there was no deprivation of liberty.  It necessarily follows that, in his judgment, there would be no deprivation of liberty with a curfew fixed at 16 hours. Lord Carswell, who also dissented, took the view that an 18-hour curfew does not cross the line between a “restriction on liberty” (which is permissible within Article 5) and a deprivation of liberty [84].  So he too considered that there would be no deprivation of liberty by a 16-hour curfew.
79.	Lord Brown, who was one of the majority, took the view that an 18 hour curfew did amount to a deprivation of liberty.  He did, however, expressly give guidance as to where, in his view, the “dividing line” between a “restriction on liberty” and a deprivation of liberty was reached. He explained (with my emphasis added)   that:
“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.” [108]
	
80. The other two members of the Appellate Committee, who were Lord Bingham and Baroness Hale, took the view that a 14-hour curfew did not amount to a deprivation of liberty but that a 18-hour curfew did. They did not express a view as to where the precise dividing line should be drawn. Nevertheless, I agree with counsel for the Secretary of State that a majority, namely three out of five members of the Appellate Committee accepted  that in principle a 16-hour curfew did not necessarily infringe the article 5 rights of the controlled person.

81. For the purpose of completeness, I should point out that the written skeleton argument of the Secretary of State records that in another control order case involving a 16-hour curfew to have come on for hearing following the decision of the House of Lords in JJ (in fact, an interlocutory hearing in the case of AF), it was accepted on behalf of the controlled person that a 16-hour curfew did not breach Article 5 ECHR.  I have also been told that in  two other cases there have been article 5 challenges to a 16-hour curfew. As there is no decided case on this issue, I do not attach any importance to this information.

82. The submission of Mr. Davies was that Lord Brown was not stating first that in every case a curfew of 16 hours on a controlled person was automatically justified and second   that there could never be a deprivation of liberty with such a curfew. Mr. Davies points out that Lord Brown was giving a fact-specific opinion but before fixing the length of the curfew, it remains    necessary to consider other factors.

83. I agree because Lord Brown explains earlier in his speech that a curfew of 16 hours is “the absolute limit” [105]. . He acknowledged that Lord Carswell had said that as to the appropriate period of curfew “a great deal depends on the overall factual matrix” [84] and that Baroness Hale had referred to the fact that “situations may be many and various”[63].

84. I consider that although a 16-hour curfew will not infringe the article 5 rights of some of those who are subject to control orders, that conclusion most certainly do not mean that a 16-hour curfew is permissible in every case in which a control order is made. In my view, courts will still have to consider in each case what length of curfew is appropriate to meet the conflicting needs of the rights of the controlled person and of national security. It is possible to envisage cases in which a shorter curfew is appropriate and necessary. It is now appropriate to consider a number of factors suggested as relevant in determining the restrictions to be imposed on AE including the appropriate length of the curfew.

(iv)  Relevant factors in determining the length of the curfew for AE and other restrictions imposed on AE

85. The starting point must be to ensure that any restriction imposed on AE is in the words of the statute “necessary for purposes connected with protecting members of the public from the risk of terrorism”.    It was suggested that the resources of the state in monitoring AE’s movements should not be taken into account in determining the necessity of a control order.  Miss Giovennetti however submits correctly in my view that this submission was rejected in Secretary of State v MB [2007] 1 QB 415 when Lord Phillips giving the judgment of the Court of Appeal explained (with my emphasis added) that:
“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.”[63]

86. Clearly if financial resources were to be ignored, there would then be powerful arguments for contending that no curfew was required because AE could be effectively monitored for 24 hours a day.  By the same token, if financial requirements were to be regarded as the overriding factor, there would be a strong argument for an extremely long period of curfew and that would also be unsatisfactory. In my view, financial factors relating to the costs of monitoring AE’s activities are relevant and they may well militate in favour of an extended curfew.

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 [2007] 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.”[95]

88. In Secretary of State  v AF [2007] EWHC 651 (Admin), Ouseley J expressly agreed with the approach of Beatson J. on this issue (see paragraph 133).  I heard no contrary submissions and I will therefore accept what Beatson J decided although it is not decisive in this case.

89. The next factor to be considered is the amount of  deference due by courts to the views of the Secretary of State, who is better placed than the courts to decide on measures necessary to protect the public against any activities of AE. The basis of that approach is that the Secretary of State   has the   experience and knowledge of   recognising potential terrorist activity of a kind that no court is likely to have.  That might be considered at first blush as militating in favour of a court being reluctant to reach a decision contrary to the views of the Secretary of State.

90. Against that approach is the powerful contention that the  article 5 rights of AE are of special importance. In consequence the courts must recognise a narrower discretionary area of judgment with the result that the courts will carry out a particularly strict scrutiny of the conduct of the state, which   in this case is the imposition of the 31 October 2007 modifications, which are the subject of the appeal.

91. This dilemma was considered in the judgment of the Court of Appeal in MB (supra), when   Lord Phillips  explained that: 
“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 [2003]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…”

98. As to the   ban on visitors during AE’s non curfew hours (with the exception of the exempted category), the case for the Secretary of State is as stated in their statement that:
“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”

99. AE in his witness statement has explained  that those visitors, who would normally come to see his partner outside the curfew (with the exception of the exempted category), are no longer permitted to do so  as a result of the 31 October 2007 modification.  He complains that this is totally unfair on his partner as she has been made to suffer as a result of the change of the obligation.  It is true that those visitors (with the exception of the exempted category)   now have to provide details to the Home Office. AE contends that the 24-hour prohibition on visitors without obtaining the consent of the Home Office has resulted in visitors not choosing to visit him and his family because of the need to give details to the Home Office; overall he says that has led to a sense of isolation on the part of his family.

100. I can well understand that  the requirement that anybody (with the exception of the exempted category) needs to obtain the consent of the Home Office before visiting AE’s home  means that there is  an increase in the  formality    and that this  is an impediment for such visitors. Nevertheless I do not   believe that any bona fide visitor to the partner of AE should or would   have concerns about giving their details to the Home Office.  It must be widely known among AE’s social circle   that AE is subject to a control order and that he is being monitored by the Home Office.

101.  I have explained in the closed judgment that   the extension of the ban on visitors to AE’s residence (with the exception of the exempted category) does not (and will not) protect the public against the risk of terrorism for the reasons explained in the closed judgment. Therefore this restriction   will not reach the threshold of being   “necessary for purposes connected with protecting members of the public from the risk of terrorism”.  Thus I agree with Mr. Davies that AE’s appeal against this modification should be allowed and that the modification relating to the ban on visitors to non-curfew hours should be deleted from the control order.

(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”? 

102. The case for the Secretary of State is, as stated in the security document, that:
“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”

103. The statutory provision imposes a high threshold required for justifying a modification because it has to be   “necessary for purposes connected with protecting members of the public from the risk of terrorism”.  The Oxford English   Dictionary’s definition of the word “necessary” is that it has to be something which is “essential” or “indispensable”. For the reasons explained in the closed judgment,   AE was  mixing with Islamic extremists in a way which is not prohibited under the terms of the pre-31October  2007 control order .I consider that any provision which precludes this association would in my opinion be “necessary for purposes connected with protecting members of the public from the risk of terrorism”. The stark fact is that the pre-31October 2007 control order was not working properly as it failed to preclude AE from mixing with Islamist extremists for the reasons which I have just explained.

104. I have explained in the closed judgment how   I  considered  the possibility of imposing a less onerous obligation on AE than  increasing  the curfew by two hours but there is no such other obligation which would be effective to protect the public against  the activities of AE, which have been giving concern . I therefore dismiss the appeal against the increase by 2 hours of AE’s curfew. If I had been in any doubt about this, I would have reached the same conclusion after taking account of financial   considerations arsing from the need to monitor AE’s activities during those additional 2 hours of the pre-31October 2007 curfew.
 
IX Conclusion 
105. I   therefore conclude that all the appeals of AE are dismissed save that the appeal is allowed against extending the ban against visitors to his residence from his curfew hours to a 24-hour ban.  I would be grateful if counsel could draft the appropriate order. I must also express my appreciation to all counsel involved in this case for their help especially as there must have been  difficulties in conducting a case caused by the fact that there was a seven-month gap in the middle.

APPENDIX

Part I- OBLIGATIONS IMPOSED ON AE UNDER THE TERMS OF THE CONTROL ORDER AS AT FEBRUARY 2008

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
vi.	Turn left onto Westfield Road and return to your permitted area

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.

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),
 
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.

7)	You shall not associate or communicate, directly or indirectly, at any time or in any way with the following individuals:

	Shabaz AbdulRahman
	Jutiar Wali Ali aka Kaiwan Hamidi
	Ali Tawfik Mohammed Amin
	Bahez Draey
	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
 
b) 	you have received approval in writing from the Home Office for the training course or academic study course.
 
16.2)	Where any approval referred to in obligation 16.1(b) is subject to conditions, you must comply with these conditions.

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.

				Part II- The December Disclosure

(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”.

PART III

THE SPECIAL ADVOCATE PROCEDURE

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.