QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Secretary of State for the Home Department
|- and -
|Secretary of State for the Home Department
|- and -
Mr Danny Friedman & Ms Michelle Butler (instructed by Gladstones) for GG
Ms Stephanie Harrison & Mr Edward Grieves (instructed by Tyndallwoods) for NN
Special Advocates: For GG; Mr Andrew Nicol, Q.C. & Mr Martin Chamberlain
For NN: Mr Angus McCullough & Miss Clare Brown
Hearing dates: 3 – 14 October: 21 & 24 November 2008
Crown Copyright ©
Mr Justice COLLINS :
"I have reached the clear conclusion that 18 hour curfews are simply too long to be consistent with the retention of physical liberty. In my opinion they breach Article 5. I am equally clear, however, that 12 or 14 hour curfews … are consistent with physical liberty. Indeed, I would go further and, rather than leave the Secretary of State guessing as to the precise point at which control orders will be held vulnerable to Article 5 challenges, state that for my part I would regard the acceptable limit to be 16 hours, leaving the suspect with 8 hours (admittedly in various respects controlled) liberty a day. Such a regime … can and should properly be characterised as one which restricts the suspect's liberty of movement rather than actually deprives him of his liberty. That, however, should be regarded as the absolute limit. Permanent home confinement beyond 16 hours a day on a long-term basis necessarily to my mind involves the deprivation of physical liberty …"
It is to be noted that the House upheld the conclusion of the lower courts that once a breach of Article 5 was established the orders must be quashed: it was not possible to save them by modifying the curfew obligation.
"There is intelligence to suggest that they were planning some sort of attack in the U.K."
It was said that the plot was thought to have involved the use of explosives, probably to be loaded into cars and driven into crowded city centres. Officials said that it was unclear whether any of the men had been planning suicide attacks. It was believed that there might be links with Al-Zarqawi, an organiser of suicide attacks in Iraq.
"In all these circumstances our conclusions based on the decision in MB and AF are these:
i) The question is whether the hearing under section 3(10) infringes the controlee's rights under Article 6. In this context the question is whether, taken as a whole, the hearing is fundamentally unfair in the sense that there is significant injustice to the controlee or, put another way, that he is not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing is impaired. More broadly, the question is whether the effect of the process is that the controlee is exposed to significant injustice. In what follows 'fair' and 'unfair' are used in this sense.
ii) All proper steps should be made to provide the controlee with as much information as possible, both in terms of allegation and evidence, if necessary by appropriate gisting.
iii) Where the full allegations and evidence are not provided for reasons of national security at the outset, the controlee must be provided with a special advocate or advocates. In such a case the following principles apply.
iv) There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed.
v) Whether a hearing will be unfair depends upon all the circumstances, including for example the nature of the case, what steps have been taken to explain the detail of the allegations to the controlled person so that he can anticipate what the material in support might be, what steps have been taken to summarise the closed material in support without revealing names, dates or places, the nature and content of the material withheld, how effectively the special advocate is able to challenge it on behalf of the controlled person and what difference its disclosure would or might make.
vi) In considering whether open disclosure to the controlee would have made a difference to the answer to the question whether there are reasonable grounds for suspicion that the controlee is or has been involved in terrorist related activity, the court must have fully in mind the problems for the controlee and the special advocates and take account of all the circumstances of the case, including the question what if any information was openly disclosed and how effective the special advocates were able to be. The correct approach to and the weight to be given to any particular factor will depend upon the particular circumstances.
vii) There are no rigid principles. What is fair is essentially a matter for the judge, with whose decision this court should very rarely interfere."
"(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
(d) conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity;
And for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."
Terrorism-related activity is not limited to acts in this country. 'Terrorism' includes acts in any country, whether directed against the U.K. or any other country (see Terrorism Act 2000 s.1 (4) applied by s.15 (1) of the 2005 Act). Thus, in the context of this case, conduct which is intended to or does facilitate, encourage or assist acts of terrorism in Iraq is covered.
"Tantum religio potuit suadere malorum."
A loose translation would read:-
"Religion has been able to persuade to so much evil."
"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."
"I have never shied away from looking at what it says in the Koran and other authorities about invading armies. I believe that a lot of non-religious people would agree that Muslims have a right to fight against Coalition forces in Iraq."
"You are prohibited from saying, writing or publishing anything that could reasonably be understood as a direct or indirect encouragement or glorification of or inducement or assent to the commission, preparation or instigation of an act of violence."
I have slightly amended the agreed formula in the interests of grammatical accuracy.
"These obligations may include, in particular …"
They are therefore clearly not intended to represent a limitation on what may properly be included in an order. However, there is no reference to searches of the person. S.1(4)(k) permits a requirement to allow searches of his residence or other premises to which he can grant access 'for the purpose of ascertaining whether obligations imposed by an order have been, are being or are about to be contravened'. S.1 (4)(l) permits a requirement to allow anything found to be removed for testing or to be retained so long as the order is in force. S.1(4)(m) permits a requirement that he allow himself to be photographed.
"It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it."
The principle referred to by Lord Bingham will extend to a search of anyone at home, or in any place in addition to on the streets. There must be a clear statutory provision which permits a search of the person. It may well be that the same principle applies to a search of a person's home, but there is in s.1(4)(k) a clear statutory provision permitting it.
"I am desperate to be back in Derby. I am willing to abide by any conditions so long as I am there with my family. There is no other agenda. I am very isolated here and very lonely. I do not want to live here. "
He has even expressed the view that he would agree not to attend any or any particular mosque in Derby if he were allowed to be with his wife and children there.