England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2009

MR JUSTICE MITTING :

1. AR appeals under section 10(3) of the Prevention of Terrorism Act 2005 against the Secretary of State's refusal to modify the control order first served on him on 4^th April 2008 and renewed on 3^rd April 2009. He sought five modifications:

i) a reduction in the curfew from twelve hours to eight or nine hours

ii) an extension of the geographical boundary, comprising most of Bury, within which he is confined, to include Bolton, Rochdale and the part of Manchester known as Cheetham Hill

iii) permission to attend an ESOL English course at Bury College

iv) permission to attend (as a National Health Service patient) the Smile Dental Practice in Unsworth, about a mile and a half outside the Bury boundary

v) permission for his solicitors to leave their mobile telephones switched on when visiting his home.

Each modification was refused when sought. However, on 18^th June 2009, the Secretary of State agreed to an extension of the boundary to include substantially the whole of the built up area of Bolton, with a single access route connecting it to Bury, with effect from 22^nd June 2009.

2. The background is set out in paragraph 1 of my judgment in the review under section 3(10) of the control order imposed on AR: [2008] EWHC 3164 (Admin). The single issue, in relation to each modification sought, is whether or not the decision of the Secretary of State that the obligation in its unmodified form continues to be necessary for purposes connected with preventing or restricting involvement by AR in terrorism-related activity is flawed: section 10 (5)(b). In determining that question I must apply the principles applicable on an application for judicial review: section 10(6). The relevant principles are rationality and proportionality. I must pay a degree of deference to the decisions taken by the Secretary of State on the advice of the Security Service: Secretary of State for the Home Department v MB [2006] EWCA Civ 1140 paragraph 64. Mr MacKenzie, for AR, reserved his position on the application of Article 6 to this appeal, but did not suggest that I should hear argument about the need for any modification of CPR Part 76 to determine it. Owing to a misunderstanding between legal representatives, Ms Hadland the Home Office civil servant who chairs the control order review group which manages all current control orders, was not warned that she might be required to attend the hearing of the appeal to be cross examined on her statements. Although I was told that she could attend, she would be unlikely to be able to give useful evidence, because she had not had the opportunity to review AR's file for the purpose of giving evidence about his case. Mr MacKenzie identified the topics about which he wished to ask her questions. I expressed the view that it was unlikely that he would be able to advance AR's case by questioning her on those topics. In those circumstances, he accepted that the hearing should proceed without her. I am satisfied that her absence has caused no material disadvantage or unfairness to AR.
3. When I conducted the section 3(10) review of AR's control order, I applied the views I had formed about the LIFG in my open and closed generic judgments (see paragraph 19). Since then, very significant developments have occurred in the negotiations between the Libyan government and the imprisoned leadership of the LIFG, which I summarised in paragraph 20 of Secretary of State for the Home Department v AV [2009] EWHC 902 (Admin). For the reasons set out there, there is now a reasonable expectation that the talks will not fail. That remains the position today. That background factor brings into question the need for a control order to be maintained in the case of any individual who was a mainstream member of the LIFG. If a peace agreement results from the talks which is accepted by the bulk of the membership of the LIFG, there may well come a time, soon, when it will not be necessary for purposes connected with protecting members of the public from a risk of terrorism for control orders to continue in force – the test to be applied on an appeal against the renewal of the order under section 10(4)(a). Only when there was reasonable ground to suspect that a particular individual member or former member did not accept the decision of the group might it be necessary to continue the order in force. That situation has not yet arrived and, in any event, is not the issue in this appeal, which is a narrower question, focused on purposes connected with preventing or restricting involvement by AR in terrorism-related activity. By virtue of the extended definition of "terrorism-related activity" in sections 1(9) and 15(1) which incorporate within the definition, "action taken for the benefit of a proscribed organisation" (section 1(5) of the Terrorism Act 2000), an obligation may continue to be imposed for the sole or principal purpose of restricting AR's involvement in actions for the benefit of the LIFG, which remains a proscribed organisation. Further, unless and until a peace agreement is concluded which is accepted by the bulk of LIFG members, the Secretary of State is entitled to treat with caution those, such as AR, who may not accept that outcome. In AR's case, both concerns remain. He has done nothing in these proceedings to dispel them. He has not put in any further witness statement, apart from a short statement about the difficulty of obtaining dental treatment from practices other than the Smile Dental Practice. In response to my specific question, Mr MacKenzie told me that he did not wish to give evidence in this appeal. His public position is that which I have found to be false (see paragraph 13 at [2008] EWHC 3164 (Admin)). He has not assisted his case by his decision not to engage constructively in this appeal.

The curfew

4. The curfew has been modified, so as to postpone its start until 8.30 pm. The Secretary of State is willing to split up the non-curfew hours. But, on the advice of the Security Service, he is unwilling to reduce the length of the curfew. If the decision were mine to make, I would now conclude that the length of the curfew could be modestly reduced, at least until the end of British Summer Time on 25^th October. During the light evenings, no weight can be placed on the first of the reasons which led me to conclude that a twelve hour curfew ending at 7pm could be justified; and the postponement of the start of the curfew until 8.30 pm undermines the second reason. But the decision is not mine. The advice given to the Secretary of State is that a twelve hour curfew is a necessary part of the total package of obligations necessary for the purposes identified in section 10(5). The judgment is one upon which different people could, reasonably, come to a different conclusion. It follows that, applying the first of the judicial review principles by which I must judge this decision – rationality – I cannot say that the decision is flawed. Applying the second – proportionality – the judgment is more finely balanced. The obligation is intended and calculated to achieve the statutory objective. AR has not put in or given any evidence about practical disadvantages caused to him by the current length of curfew. In particular, he has not obtained approved employment or undertaken an approved full time course of study which would occupy most of the non-curfew hours. In those circumstances, and given the deference which I must show to the Secretary of State on this issue, I do not find that the maintenance of a twelve hour curfew is more than is reasonably required to achieve the statutory purpose. I do not conclude that the decision of the Secretary of State to maintain a curfew of that length is flawed.

The boundary

5. Applying the same principles, I am satisfied that the Secretary of State's decision not to vary the boundary so as to include Rochdale and Cheetham Hill is not flawed. The maintenance of a boundary is a significant part of the total package of obligations required to achieve the statutory purpose. The recent decision to include the built up area of Bolton accommodates the first proposal for relaxation made by AR (by his solicitor's letter of 2^nd December 2008) and, in particular, his wish to send his children to one of the Islamic faith schools which he believed were located there. A significant reason for the decision not to enlarge the boundary further is set out in the closed judgment.

The ESOL course at Bury College

6. Strictly, this issue is academic, because the course has ended. AR is entitled to a decision on the issue, because it may recur. The decision of the Secretary of State not to allow him to attend a course at Bury College was made only because there were no reasonably practicable measures which could be taken to ensure that AR did not obtain access to computers linked to the internet at the college. That reason justified the decision. The Secretary of State has made it clear that there would be no objection to AR's attendance at an ESOL course at another college within his expanded boundary at which that difficulty could be overcome.

The Smile Dental Practice

7. The practice is outside the boundary. There is a dispute about the existence, within the original boundary, of NHS practices with the capacity to accept AR as a patient. It is unnecessary for me to resolve that dispute. The maintenance of a boundary is an important part of the package of obligations required to achieve the statutory purpose. Exceptions should not be made to it, unless unavoidable. The expansion of the boundary to include Bolton must bring with it greater opportunities to find an NHS practice willing to accept AR as a patient within the boundary. For that reason and for reasons set out in the closed judgment, I am satisfied that the Secretary of State's decision to refuse to allow AR to attend the Smile Dental Practice was not and is not flawed.

The solicitors' mobile telephones

8. The Secretary of State has, sensibly, now agreed that AR's solicitors' mobile telephones need not be switched off when they visit him at his home.