England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		29th January 2008

JUSTICE COLLINS:

1. The respondent, Cerie Bullivant, is a young man, now 25 years old. He was born in Harrogate. He came to London with his mother when he was four years old. His father had left his mother and she suffered, and continues to suffer, from mental health problems. The respondent, who gave evidence in these proceedings, described how, having dropped out of university in 2002, he drifted into casual work in nightclubs and bars and found himself drinking too much and generally leading a life which was going nowhere. In early 2004 he became a Muslim, having been attracted to that faith because of its moral code. Thereafter he lost touch with most of his former friends and acquaintances and got to know and became friendly with fellow Muslims who attended the same mosque as he.
2. On 30th January 2006 he went to Heathrow Airport to travel with one such Muslim friend, Ibrahim Adam, to Syria. Both were stopped by the authorities. Ibrahim and his brother Lamine, who was to join them in Syria, were made subject to control orders, it being said that there were reasonable grounds to suspect that they were intending to engage in terrorism-related activities. The reason given for the trip to Syria was to study Arabic there. It was said that this was a pretext and that in reality the trip was for the purpose of carrying out Islamist extremist activities which would involve assisting in fighting against western forces in Iraq or Afghanistan or training for such fighting.
3. Although the Security Service assessed that the respondent shared the purpose of the travel to Syria with the Adam brothers, it was not considered necessary to subject him to a control order at that time. However, it was discovered that he was making arrangements to travel to Bangladesh with two other Muslim friends, Arif and Imran Bari, in mid-May 2006. The purpose of this visit was said to be to help in an orphanage in Bangladesh with which the Bari family, who included successful and wealthy businessmen, were connected. The Bari parents were contacted and warned by someone, who said they were ringing from community police, that their sons should not travel. The proposed trip did not take place but the assessment of the Security Service was that, having been stopped from travelling once, the respondent was showing an intention to travel overseas for the same terrorism-related purpose. Accordingly, it was decided that a control order should be made to ensure that the respondent was not able to travel out of the United Kingdom.
4. The order was made on 19th June 2006 and served on the respondent on 6th July. It included a requirement to surrender his passport, not to go to any airport or seaport or any part of a railway station giving access to international travel, to reside at an address notified to the Home Office, to report daily to a police station and to permit entry to police or persons authorised by the Secretary of State to any residence, which could be searched at any time without notice. It was said to be a light control order, presumably because it contained no curfew provisions.
5. Section 3(2)(c) of the Prevention of Terrorism Act 2005 requires the court if, as was the case here, it decides that the Secretary of State's decision and their grounds to make it are not obviously flawed to "give directions for a hearing in relation to the order as soon as reasonably practicable after it is made". No doubt Parliament envisaged there should be no substantial delay before such a hearing could take place. Unfortunately that has often not proved possible, largely because of the need to appoint a Special Advocate and to consider what material should be disclosed to the respondent. The process has been lengthened by the decision of the House of Lords in Secretary of State v MB, [2007] UKHL 46, because of the need for the court to consider whether, despite the appointment of a Special Advocate, the impossibility of the respondent knowing much of the evidence relied on against him and his inability to answer it directly meant that the proceedings were so unfair as to breach his rights and so, unless there were further disclosure, the order would have to be set aside. There were further specific reasons for the delay in this case because of the respondent's wish to have a verdict in the Crevice trial before the section 3(10) hearing and his absconding.
6. In the result, it was not possible to fix a hearing date before the control order, which runs for 12 months, came to an end on 18th June 2007. The respondent had broken his reporting obligations by not attending the designated police station at the time set down on a number of occasions and so had rendered himself liable to prosecution under section 9(1) of the 2005 Act, which provides:

"A person who, without reasonable excuse, contravenes an obligation imposed on him by a control order is guilty of an offence."

Such an offence carries a maximum sentence on indictment of five years' imprisonment (section 9(4)). The respondent was charged with these breaches and granted bail. On 22nd May 2007 he absconded, together with the Adam brothers. He stayed with them but has refused to say where. However, on 25th June 2007, he gave himself up and was remanded in custody pending his trial for that and the other breaches. He did not leave the country, although he told a psychiatrist who saw him in August 2007 that the Adam brothers seemed keen on going abroad, but that was not an option for him. The assessment was made that it is likely that he was prevented from travelling overseas during the time he had absconded by the surrender of his passport. 1 do not find that reasoning at all persuasive. The absence of a passport will not prevent one who is determined to leave this country from so doing and it is to be noted that the Adam brothers' present whereabouts are unknown, but there must be a distinct possibility that they are no longer in this country.

7. The decision was made that there should be a fresh control order. That decision was made before the outcome of the respondent's trial was known and no doubt it would not have been needed if he had been convicted and sentenced to a term of imprisonment. However, he was acquitted. His case was that the requirements of the control order had so affected his mental health, producing a depressive illness, that he could not face being subject to its obligations. He had reports from two psychiatrists which supported his evidence that his health had been so affected. It follows from the acquittal that the jury did not reject his evidence and cannot have been sure that the cause of his breaches and the absconding was not his mental state, as opposed to any ulterior motive such as is alleged by the Security Service. That verdict does not, of course, mean that such a motive does not exist and it is necessary to bear in mind that, although they were directed that they must assume that the control order was properly made, the jury were unaware of the evidence available to the Security Service and so to me in those proceedings. Nevertheless, the fact that the jury, having heard the respondent give evidence and being cross-examined, did not reject his account is a matter to which I should have regard.
8. I confess I was concerned to hear that prosecuting counsel had seen fit to cross-examine the respondent on the basis that he was not suffering from depression and that his evidence about the effect of the control order upon his mental state was made up with a view to enabling him to put forward a false case in these proceedings. My concern arose from the absence of anything to justify such an attack and I have the greatest doubt about the propriety of such cross-examination in the circumstances. The Crown had obtained no psychiatric evidence to challenge that produced by the defence and it is to be noted the Home Office has since obtained a report which not only confirms the views of the other psychiatrists but is if anything firmer in favour of the existence of a severe depressive illness. However, I am satisfied that neither the Home Office nor the security service played any part in or influenced the CPS or counsel in connection with the criminal proceedings.
9. The new control order contained more onerous obligations, in particular a requirement to wear an electronic tag, a curfew between 9.00pm and 6.00am, a prohibition on association or communication with the Adam brothers and two others whom he had been perforce associated with whilst on remand in Belmarsh Prison. There were further requirements to notify the Home Office about employment proposals. The justification for all this was the continuing belief that the respondent intended to travel abroad for terrorism-related activities. It was also asserted that his absconding was "probably with the intention of attempting to travel abroad". That assertion is in my view not supported by the material available to the security service and is in any event rendered questionable as a result of the jury's verdict.
10. Section 3(10) of the 2005 Act requires me to determine whether either of the decisions of the Secretary of State, that she has reasonable grounds for suspecting that the respondent is or has been involved in terrorism-related activity or that she considers 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 the respondent are flawed. Section 3(11) requires me to apply the principles applicable on an application for judicial review. If I am persuaded that either of the decisions was flawed, section 3(12) limits my powers to quashing the order or directing the Secretary of State to revoke it. I also have to consider whether the Secretary of State's decision to impose any of the obligations is flawed. If so, I have power to quash any particular obligation or to direct the Secretary of State to modify it. It follows that, since the first control order is no longer in being, there is no remedy that can result since it cannot now be quashed, revoked or modified. However, it is submitted that I should indicate what I would have decided had it still been in force, since the respondent has the right to know and to have made public whether the court would have upheld that order. Mr Glasson did not suggest it would be wrong for me to undertake that exercise but my direct concern within section 3 of the Act relates to the justification for the present order or any of its obligations. There is also an appeal against the requirement that the respondent report to Dagenham Police Station. The police station should, it is submitted, be Ilford because that is more convenient for him. His request for that modification was rejected and so he is entitled to appeal under section 9(3) of the Act.
11. In Secretary of State v MB [2007] QB 415 the Court of Appeal has indicated how I should approach my task. The Act, in particular section 3 (11), must be construed in such a way as to require me to make up my mind whether there are reasonable grounds for the necessary suspicion, having considered all the evidence put before me. The test is an objective one: it presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have been involved in terrorism-related activity. I must look at all the material which is now available and which may throw light on the reasonableness of the grounds for suspicion. Thus if evidence of matters occurring after the order was imposed suggest that the grounds were not established, it must be taken into account. Even if the grounds were reasonable on the material available when the order was made, they may be shown not to have been reasonable by subsequent material. Furthermore, even if the grounds were reasonable, it may be apparent that it was not necessary for the order to have been made. Mr Glasson recognised that MB required the court to consider the position at the date of the hearing but submitted that if a control order (as happened here) came to an end before the hearing took place, the review should be limited to the position at the time when the order came to an end. That I do not accept. It produces an entirely artificial situation and is in my view contrary to the approach which MB considers to be appropriate. I will consider all the material put before me and decide whether it justifies the present or justified the previous order. The Court of Appeal referred to it as a consideration of a matrix of alleged facts. Naturally, the court will consider particular matters relied on by the Secretary of State and if any are regarded as lacking substance that will affect the correctness of the decision reached by her.
12. When MB was appealed to the House of Lords, consideration was given to whether the use of Special Advocates would necessarily mean that the proceedings were fair and so compliant with Article 6 of the European Convention on Human Rights. The decision was that it would not and the absence of knowledge of material relied on against an individual so that he had no opportunity to deal with it could mean that the proceedings were so unfair as to require the court in the absence of disclosure to refuse to take that material into account. For reasons which will become clear, it is not necessary for me to consider whether further disclosure of closed material is needed to produce the degree of fairness which is required, however that is to be assessed in the circumstances of a particular case. In addition, Mr Owen QC, on behalf of the respondent, in his skeleton argument submitted that the control order (and it would follow logically any control order, at least if made against a British national) was contrary to the obligation under European Union law to permit free movement of persons within the EU. As I indicated, my immediate reaction to that argument was that it had no substance but I have not heard it developed. It is not necessary to consider it.
13. Any control order would involve, to a greater or lesser extent, an interference with private life and so Article 8 of the European Convention on Human Rights is in play. The requirement in section 2(1)(b) of the 2005 Act that it is necessary to make an order to protect the public from a risk of terrorism reflects the justification for any such interference as set out in Article 8(2), namely that it is necessary in a democratic society, in the interests of public safety, for the protection of public order, health of morals or for the protection of the rights and freedoms of others. Thus the test of proportionality is involved. This issue will only arise if it is decided that there were reasonable grounds for the relevant suspicion. The court will accord considerable deference to the view of the Secretary of State whether an order was necessary in such circumstances and what obligations should be imposed. However, the court must decide for itself, albeit recognising the need to attach great weight to the views of the Secretary of State and only to reject any such views if persuaded that they were in the circumstances unjustified.
14. It is important to bear in mind that the terrorism-related activity which is relied on in support of orders was and remains an intention to go abroad to assist in actions to be taken against western forces (in particular those from the United Kingdom) in Iraq or Afghanistan or giving aid to those who are involved in such actions. Expressions of support for Islamic extremists who take the view that such actions are to be applauded, the sharing of extremist views or keeping company with extremists will not suffice, but will obviously provide support for suspicion of intended involvement in such activities. Control orders can only be made following consultation with the chief officer of the relevant police force about whether there is evidence available that could realistically be used for the purposes of the prosecution of the individual for an offence relating to terrorism (section 8(2) of the Act). This question must be kept under review. In this case there is no such evidence available. It is also necessary for the Secretary of State to keep under review whether a control order remains justified and this is normally done at three-monthly intervals, although if there is any particular development such a review can be carried out at any time. Such a review would, if the order remained in being, take place next month.
15. The respondent gave evidence before me. He said that he had no interest in, and indeed kept away from any who expressed, extremist views. There was no place in Islam, as he believed, for the killing of innocents or anybody who was not fighting. He would not support jihad in the form that it was happening but if a country was defending itself that was a different matter. He did not, like many, approve of the invasion of Iraq but he had no sympathy with what was now going on there, in that Muslim was fighting Muslim, and he had never thought of involving himself in any such activities. Ibrahim and Lamine Adam became close friends. He had met them playing football in 2005, some six months before the abortive trip to Syria. He had always wanted to travel. Syria was chosen because he had begun a Teaching English as a Foreign Language (TEFL) course and wanted to learn Arabic. The purest Arabic is spoken in Syria. That this is indeed so and there are at any particular time a number of foreign students studying Arabic in Damascus is confirmed by an uncontroverted statement from a legal researcher at the respondent' s solicitors who spent 15 months studying Arabic in Damascus. The respondent understood that Lamine Adam was also intending to study Arabic. In addition, the Bari brothers, other friends, were to join them there. He said he might well have visited other Muslim countries but only to obtain a greater understanding of the religion and the way of life in those countries.
16. He said that he did not suspect that the Adam brothers or any of those going to Syria had any intention to indulge in terrorism-related activities. He was at all times open about his intended travel. He had money owing to him from work he had carried out and denied that anyone had put up money to sponsor his trip. He had intended to stay in Syria for up to six months and might have tried to extend his stay for longer. He was not aware that Anthony Garcia, who was in prison on terrorism charges, was a brother of Lamine and Ibrahim and he had not met or spoken to him. He was only aware of him and that he was in prison after he had been stopped at the airport and Ibrahim had told him that he suspected that the stopping might have had something to do with his brother.
17. On 28th January 2006, two days before he was due to fly to Syria, the anti-terrorism unit received information that the respondent had become increasingly secretive about his plans. He had a tape described as brain washing. He was being sponsored to the tune of £4,000 by someone in his local mosque to study abroad and the informant was unsure whether he was telling the truth. The respondent was aware, because his mother had told him, that an erstwhile family friend was going to contact the anti-terrorism authorities about his proposed trip. His mother's evidence was that the friend in question, who sounded drunk at the time, in truth knew nothing about the respondent. She was not aware of any tape which could be described as brain washing, nor had she expressed any concerns about his intention in going to Syria. She had expressed concern about him leaving her and travelling and the informant must have misunderstood the position. In any event, the informant was unreliable. Mr Owen relied too on the failure to investigate the credibility of the informant.
18. Reliance has been placed on the fact that the respondent had a visa valid for 15 days and a return ticket for 21st March 2006. Neither was consistent with his account of going to study Arabic for a substantially longer period. The visa was valid for six months but only permitted entry for 15 days. It is a relatively standard form of visit visa and the respondent's evidence was that it was usual for an application to be made in Syria for an extension. He had been advised that it was cheaper to obtain a return ticket and if necessary to vary it if the precise return date was unknown. The respondent said that he recognised that, due to his mother's mental health, he might need to return at relatively short notice. Accordingly, in truth, there was nothing sinister in the visa or the ticket.
19. The evidence satisfies me that the explanations given by the respondent cannot be rejected as improbable. It is, submits Mr Owen, significant that no investigation appears to have been undertaken to confirm or deny his account and that, since a 15 day entry is standard for a visit and the language school website states that a tourist visa should be obtained, it is inevitable that such a visa will be granted, even if the recipient intended to study and stay for longer.
20. When interviewed at the airport, the respondent and Ibrahim Adam gave similar accounts. The security service has identified one particular discrepancy. The respondent said that Ibrahim had a contact in Damascus who would meet them on arrival and arrange accommodation. Ibrahim claimed that no particular arrangements had been made and they would fend for themselves. It is said that this confirms that there was a pre-arranged story and the discrepancy showed a deviation from the script. I cannot see how that can be justified. In reality, it is far more likely that the respondent was telling the truth, since, if Ibrahim did have the intent suspected, he would have a motive not to say that he had arranged to be met since he would inevitably have been asked who was to meet him.
21. It seems to me that the submission by Mr Owen that a view that was consistent with guilt has been allowed to prevail when in reality the matters relied on were equally, and perhaps more, consistent with innocence has force. The visa and the ticket difficulties are clearly explicable and there is no proper basis for assuming that the discrepancies support the view that the respondent was not telling the truth but was relying on a prepared story when at the airport.
22. No doubt the respondent is hoping to travel abroad. His proposed trip to Bangladesh was again not concealed. He had been open with the Bari brothers' parents. His friend, Arthur Harrison, told me that the respondent was not someone who was easily persuadable. While he was lazy, he was not someone who would do anything illegal or involve himself in acts of violence. Mr Harrison had been approached by someone who said he was part of the security service when the respondent had absconded because it was thought that he might be able to contact the respondent. According to Mr Harrison, he was informed that the individual did not believe the respondent had done anything wrong but he was associating with bad guys, was vulnerable and easily open to persuasion.
23. Mr Owen made the fair point that the observation by the security service witness P that the respondent may travel to Iraq or undergo terrorist training indicated that there was no positive evidence that suggested he would travel for such purposes. He made the further point that searches of the respondent's home and such investigations of his computer as may have been carried out had not produced any incriminating material. In March 2007, the respondent was arrested with others, including the Adam brothers, on suspicion of attempting to obtain a false passport. It is now accepted that there is no evidence to suggest that he was involved in that attempt.
24. It may well be the case that the Adam brothers were intending to travel to Syria for the purpose of carrying out terrorism-related activities. Since they had absconded and failed to attend their section 3(10) hearing, the orders against them have been upheld and their absconding does not point in the direction of innocence. Thus there is inevitably reasonable suspicion that the respondent has kept company with extremists and may sympathise with their views. It may be that he has gained their trust, but that does not mean that he intended himself to take part in any terrorism-related activities. The dangers of guilt by association are obvious. There is no good reason to doubt that he did want to learn Arabic to pursue TEFL and that Syria was the best place in which to do that. As I have already indicated, the points relied on by the security service in connection with the trip to Syria carry little weight when analysed. Only if it is assumed that the respondent did have the intention ascribed to him could they be used as pointers to reasonable suspicion.
25. The fact that he absconded might obviously have been considered supportive of the Secretary of State's case. However, it resulted, according to his evidence, from the effect on the respondent's health of the obligations of the control order. He had no intention, he said, of leaving the United Kingdom for the purposes alleged against him. The jury did not disbelieve him. It has never been suggested that he has been involved in terrorism-related activities within the United Kingdom. The case against him rests upon the assertion that he is maintaining his desire to travel for the relevant purpose. In all the circumstances, his absconding and voluntary surrender is in his favour, since he did not try to go abroad. It seems that he was to an extent persuaded by the Adam brothers to abscond. His mental state is likely to have influenced him, since that action was inconsistent with Mr Harrison's assessment of his character. I do not think his actions support the assessment of the Security Service that he is determined to travel abroad for the alleged purpose. He certainly has said that he wants to travel and is thinking of trying to emigrate but a desire to travel by itself is hardly supportive of the case alleged against him.
26. I am satisfied that the Secretary of State's decision to make a control order was justified on the material available at the time. There were reasonable grounds for the relevant suspicion. I appreciate that the respondent says that he cannot think of any reason why he should have been suspected of involvement in terrorism-related activities. Nonetheless, all the material which I have seen persuades me that the position is as I have stated. However, I am equally satisfied that reasonable grounds for suspicion do not now exist. It follows that the control order cannot be upheld.
27. I have had to consider whether that means that the previous order would have been upheld. There is a duty on the Secretary of State to consider whether an order remains necessary, either in whole or in relation to any particular obligation imposed by it. One relevant consideration is the effect on the individual and there is no doubt that the respondent's health was being adversely affected. However, it was not until after he had absconded that the Secretary of State was made aware of the effect on his health. That effect is relevant both in considering whether the intent relied on remained in being and in deciding on the need for the order or any particular obligations imposed by it. It is to be noted that it was not thought necessary to make any order against either of the Bari brothers, who were not only the respondent's proposed companions in the trip to Bangladesh but also were to join him in Syria. However, it must be recognised that a control order has considerable resource implications, so the Secretary of State will only make one if she is satisfied that it is needed in the case of any particular individual.
28. In all the circumstances, I have concluded that on the material now available the previous control order would not have been upheld. I repeat that I am satisfied that the Secretary of State had reasonable grounds for suspicion and the making of the order was justified at the time and I do not think that there was any reason to revoke it prior to any hearing before the court. But, for the reasons I have given in this and in the closed judgment, I am not prepared to upheld the present order, nor would I have upheld the previous one.
29. I do not in those circumstances have to consider whether the process was sufficiently fair within whatever are the correct parameters laid down by the House of Lords in MB. Nor do I have to deal with the EU law arguments. But even if I had upheld the need to make an order, I would have had no hesitation in varying the obligations. The more stringent obligations were imposed with a view to preventing the respondent from absconding. Since the lesser obligations had affected his mental health and had caused him to abscond, it is difficult to see how more stringent obligations can be justified. They would be likely, if anything, to encourage breaches. Since the object of the order would be to prevent travel, the surrender of his passport, together with some reporting obligations and conditions of residence, should have sufficed.
30. I would equally unhesitatingly have allowed the appeal against the requirement to report to Dagenham rather than Ilford police station. Unless there are security or other compelling reasons to have insisted on a particular police station, the convenience of the controlled person must be taken into account. The obligation to report is to ensure that he remains in the country and should not have an adverse impact on his life to any greater than necessary extent. The reason for refusing the alteration was based on a need to designate a police station within the same borough. The control officers might want to speak to him when he attended and those officers would normally be based in the borough in which he was living. However, I was not persuaded that this was proportionate/ having regard to the interference with his private life.
31. In the circumstances, I propose to quash the control order.