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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for the Home Department v AM [2009] EWHC 3053 (Admin) (21 December 2009)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3053.html
Cite as: [2009] EWHC 3053 (Admin)
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PTA/34/2008 PTA/35/2008 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| The Secretary of State for the Home Department |
Claimant |
|
| - and - |
||
| AM |
Defendant |
____________________
Timothy Otty QC and Tom Hickman (instructed by Messrs Arani & Co. Solicitors) for the Defendant
Mohammed Khamisa QC and Shaheen Rahman as Special Advocates for the Defendant
Hearing dates: 20 – 31 July 2009
____________________
Crown Copyright ©
- These proceedings constitute a review pursuant to section 3(10) of the Prevention of Terrorism Act 2005 ("PTA") of a control order first imposed on AM on 21st June 2007 and renewed by the Secretary of State (SSHD) in June 2008 and again in June 2009.
- This is the first occasion on which there has been a full review of AM's control order pursuant to section 3(10). The obligations imposed on AM have, however, been the subject of two modification appeals heard by Collins J, in September 2008 and Keith J, in February 2009. In the latter case, permission to appeal to the Court of Appeal has been granted to AM but the hearing of that appeal has been postponed pending the outcome of this review.
- The preamble to the PTA states that it is:
- section 1(1) of the PTA defines a "control order" as:
- "Terrorism" is stated by section 15(1) of PTA to have the same meaning as in the Terrorism Act 2000. Sections 1(1) to (5) of the 2000 Act sets out a comprehensive definition of terrorism. There is no dispute but that if the contentions relied upon by SSHD are well founded they amount to terrorism.
- Section 1(2) of the PTA provides:
- By Section 2(1) of the PTA, the SSHD:
- Section 2(4) provides:
- Section 2(5) provides:
- Section 2 (6) of the PTA provides:
- A renewed non derogating controlled order runs for twelve months beginning from the earlier of the time when the order would otherwise have ceased to have effect, or the beginning of the seventh day after the date of renewal (see section 2(7)).
- Section 3 of the PTA provides for supervision by the court of the making of non derogating control orders. Section 3(1) provides that:
- Section 3(10) of the PTA provides:
- Section 3(11) provides:
- subsection (12) provides:
- Subsection (13) provides –
- Although section 3 (11) requires the court to apply the principles applicable on an application of judicial review, what this means in practice has been explained by the court of appeal (in SSHD v MB, [2007] QB 415, [2006] EWCA Civ 1140). The matter is dealt with at paragraphs 41-46 of the judgment of the court given by Lord Phillips of Worth Matravers CJ (as he then was), and in particular:
- At paragraphs 60 – 65:
- In MB the court of Appeal went on to consider the standard of proof. At paragraph 67 Lord Phillips said as follows:
- I accept that the concept of reasonable suspicion is most helpfully summarised in the speech of Lord Hope of Craighead in O'Hara v Chief Constable of the RUC [1997] AC 286 at 298 where he says as follows:
- In giving intense scrutiny to the necessity for each of the obligations imposed under the control order, I agree with the submission of the respondent that, as the obligations will necessarily interfere with the respondent's rights under Article 8 and cannot be imposed in breach of such rights, I have to ask whether the obligations imposed satisfy the test of necessity and proportionality applied in respect of interferences with article 8. In particular the court should ask itself whether:
- The PTA contains a specific statutory framework concerning disclosure, in amongst other contexts, control order proceedings. Paragraph 4(2)(a) of the Schedule to the PTA provides as follows:
- Paragraph 4 (3)(d) of the Schedule provides that:
- The civil procedure rules, part 76, makes the following relevant provisions:
- Part 76.2 (2) provides:
- Part 76.29 (7) provides:
- CPR Part 76.29 (8) provides that:
- These provisions have most recently been considered in Secretary of State v AF(no 3) [2008] 3 WLR 74 in which the House of Lords accepted and applied to decision of the European Court of Human Rights Grand Chamber in A v United Kingdom App Number 3455/05 20th February 2009. Both sides agree that the essence of the decision is to be found in paragraph 59 within the speech of Lord Phillips where he says:
- A control order was first imposed on AM on 21st June 2007 following an order by Collins J granting permission to the Secretary of State to make it. There was a section 3(10) hearing to review that control order listed in January 2008, but the full review hearing did not take place. Sullivan J ruled that the Secretary of State had to make further disclosure in order to comply with the requirements of a fair hearing, pursuant to Article 6. The order made by Sullivan J is dated the 30th of April 2008. The Secretary of State appealed that order which was heard by the Court of Appeal in July 2008. The Secretary of State's appeal was dismissed.
- At a hearing in February 2009 Keith J ruled on the extent of further disclosure which had to be provided pursuant to Sullivan J's order. This led to the production of the sixth national security statement which is subject to an in camera procedure and confidentiality undertaking. Following the judgment in AF number 3, and the urgent review of all control order cases by SSHD which followed, and following a closed hearing on 8 July 2009, pursuant to rule 76.29 of the CPR, Mitting J put the Secretary of State to his election that if she wished to rely upon certain parts of the closed case against AM he had to make further disclosure. SSHD has done so in the form of the 8th national security statement which takes the form of a gist of a part of the SSHD's case. This was provided to AM on 13th July 2009. During the course of this hearing SSHD agreed to provide a further summary in the form of a gist.
- As I am required to do, I have kept the issue of disclosure under review and it has been made the subject of certain submissions made on behalf of AM, responded to by SSHD and I will return to this subject later in this judgment.
- This document was first submitted in its original form in June 2007. It has been subject to amendment and re-amendment respectively in October 2007, December 2007, January 2008 and April 2009.
- As originally drafted the summary stated as follows:
- It set out in greater detail the contention of the Security Service that if AM were to establish contact with Mohammed Al Ghabra, a person added to the United Nations 1267 committee list in 12 December 2006, there is a significant risk that Al Ghabra may assist AM in facilitating his travel abroad for terrorism related activities. The other basis for the order, as then identified, arose out of his interception in international waters by a Royal Naval vessel on the 17th of April 2007. The Royal Navy, was suspicious of the location of the boat, on board of which AM then was, and sceptical of the accounts provided by AM and his associates. Investigations revealed that [AM] had provided a false name when questioned by the Navy. In the initial form of the statement, the summary of the case against AM was enhanced by a Security Service assessment that he may travel abroad and establish contact with Al Qaeda affiliated extremists and included as the source of the Security Service assessment the claim that AM had travelled to Pakistan in 2004 and 2005 and had attended terrorist training camps where he may have received training in firearms explosives and other techniques useful to a terrorist, that type of training being typical of what can be provided at extremist training camps.
- In January 2008 the statement was further amended to add to the summary a contention that AM may also engage in terrorism related activity in the UK and that the control order was sought for the purpose of restricting his activities in the UK as well as his overseas travel.
- In April 2009 the statement was further amended. A new paragraph was added to the summary which reads as follows:
- There was then set out a detailed statement of what that plot entailed, its modus operandi, the links to Pakistan, but no reference to AM.
- The second statement on behalf of the Secretary of State was dated October 2007 and was made in the context of the section 3(10) proceedings. It stated that there had been a review of the relevant material held by the Secretary of State to identify any exculpatory material, conducted by counsel to the Secretary of State. It concluded that the Security Service continued to assess that it was necessary for the control order to continue.
- The third Security Service statement to the Home Secretary in support of the control order, again made in the context of section 3(10) proceedings, was dated January 2008 and contains no new material. The fourth security service statement to the Home Secretary was dated January 2008 and was amended in February 2008. This contained the response to AM's first statement on the impact of the control order. It contained the acceptance by the SSHD that AM's visit to Pakistan in 2001 as a child may have been for family reasons, his acceptance that the visit in 2004 said to be to visit close family and friends, may have included such a visit but contained the assessment that this was not the sole purpose of the trip and that the Secretary of state did not accept that AM has had no form of terrorist training. Similarly, in relation to the 2005 visit to Pakistan, to which AM had referred, SSHD accepted he may have attended a family wedding but did not accept that it was the sole purpose of the trip, nor did he accept that AM did not attend a terrorist training camp.
- In relation to Al Ghabra, the SSHD did not accept that AM had had no form of contact with him.
- In relation to the Oman incident, SSHD did not accept the reasons for AM's visit was for a holiday and assessed that AM travelled to Oman for purposes connected to Islamist extremism. SSHD noted that the Oman trip was said by AM to be at the suggestion of "Mohammed" and that "Mohammed" was the name given to the individual AM was staying with in Oman as he had stated in his interview at the time.
- In relation to AM's evidence that there had been approaches to him by the Security Services in 2007, SSHD gave a "neither confirmed nor denied" ("NCND") response.
- The fourth open statement then went on to set out, what the SSHD now accepts is the core of the case against AM. In its original form, this part of the submission read as follows:
- An amendment in February 2008 added the following:
- This amended statement also contained the justifications for the modifications for AM's obligations which were the subject of a modified control order dated 17th December 2007. The justification for each modification was set out. They read as follows:
- In December 2008 the fifth Security Service submission on behalf of the Secretary of State was submitted. It was amended in February 2009.
- The fifth statement referred to the renewal of the control order on 18th June 2008 imposing several new obligations on him including restrictions on prearranged meetings, visitors to his residence and a prohibition on associating with Y. It stated that the assessment was that AM continued to meet associates inside and outside his residence without notifying the Home Office of those meetings, or his associates' details, as required by the terms of his control order.
- The statement, subsequently amended in February 2009, referred to the contention that AM had been assisting his family in replacing hard drives of their computers for the reason that there was material stored on them that the AM family would not want the authorities to see. This was a reference to an incident at a computer shop. It recorded that the Security Services assessed that, whilst some of the material might have been personal, the hard drive may also have contained extremist material which had been accessed by members of the AM family.
- On the 26th of September 2008, AM's family had agreed to the conditions indicated by the court in September 2008 as a requirement for him to be permitted to visit the family home and AM was allowed to visit their residence twice a week pursuant to the variation in the terms of the conditions made by the court.
- The amendment to this statement in February 2009 also stated that, in August 2006, the assessment had been that AM did not show the typical characteristics of an individual preparing to martyr himself but that this assessment had subsequently changed and the current assessment was that AM was a member of a sleeper cell awaiting instructions to carry out this attack and that he is a threat to national security. The assessment was also made that AM holds anti-British views and is contemptuous of the British authorities and demonstrated this by attempting to breach the obligations of his control order. The statement concluded that the Security Service assessed that AM remains a threat to National Security because of the extremist training he is assessed to have received in Pakistan and his willingness to act on Al Qaeda's behalf as demonstrated by his involvement in the airlines plot. It continued to assess that if the control order were removed, AM would seek to engage with AQ.
- The seventh statement on behalf of the Secretary of State was dated April 2009. It contained a summary of the outcome of the transatlantic airline plot trial in September 2008, in particular, that AY had been acquitted, that three named individuals had been convicted and that, in the case of the remainder, there was a failure to agree a verdict and a retrial was scheduled for 2009. The statement went on to highlight AY. It stated that, despite his acquittal, the assessment was that AY continued to pose a significant threat to the national security. It summarised his evidence at his trial to the effect that his relationship with the others, said to be part of the plot, was for the purpose of his obtaining a false British passport. He had also stated that he was in contact with an individual named "Izzy" who lived "up north" and whom AY was arranging to meet to assist AY in obtaining a false passport. The statement continues that the Security Service did not accept that explanation and strongly assessed that AY was a senior member of the plot and was preparing to travel up north to provide "Izzy" with operational detail so that he could carry out an attack as part of the overall plot. It goes on to state that the Security Service strongly assessed that the individual named Izzy was identical with AM. It then summarised certain parts of AY's evidence and his cross-examination. This included evidence in relation to encoding telephone numbers. It included his evidence that a call, listed as having been made on 9th August at about 22:08 hours, was made to a number ending with 235 for 83 seconds. It records that AY's evidence was that this number belonged to "somebody up north" who could help him obtain a British passport, and whose number he obtained from a relative in Pakistan. It contained the assessment of the Security Service that AY was intending to meet Izzy to provide him with details on his role in the plot. It also asserted that AY had been passed a video camera to take with him up north so that he could help Izzy film his martyrdom video. It also set out the assessment that Izzy is identical with AM and that AM was the individual whom AY arranged to meet in August 2006. It then sets out the Security Service assessment of AM's involvement in the transatlantic airlines plot in the following terms:
- These four paragraphs contain the essence of the allegations which are at the heart of the SSHD's view that grounds exist for a control order and for the necessity of the package of obligations currently in place.
- The eighth statement on behalf of the SSHD is dated July 2009. It contains the gist of the core allegations made against AM following a further review of the need for disclosure in the light of what the House of Lords, in AF (no 3)), said was required to secure a fair trial in relation to these matters for AM. This material, in common with the sixth statement, is subject to reporting restrictions and confidentiality undertakings given by the respondent which make it suitable only to be dealt with in camera.
- In the course of these proceedings, a further statement was produced - in the form of a security service statement. As with the sixth and eight statements it is subject to confidentiality undertakings which means that I have dealt with it in camera.
- AM has submitted nine witness statements in the course of these proceedings. He has given evidence and he confirmed that the contents of these various witness statements were true.
- His first witness statement was dated 25th December 2007. From the outset he denied that he had ever been involved in any form of terrorist related activity and resented the stigma now attached to him by virtue of the control order and the interference with his life which it had caused and continued to cause. He refers to the increasing severity of the obligations under the control orders, in particular the extension of the curfew to eight hours and the prohibition from ever visiting his parents' house.
- In relation to the allegations of visits to Pakistan in 2004 and 2005 he says that he had been to Pakistan on three occasion, in 2001 with his family when aged 13 for three months, in May 2004 when aged c16 for 4-5 months - a holiday to visit close family friends. He had left school a few months before his exams and decided to take a few months off. They were the same friends he had visited in 2001. Initially the trip was for three months but he then extended it until September October. He was astonished at the suggestion that he attended any form of terrorist training camp.
- The third visit in December 2005 was for about 6 -7 weeks for the marriage of a family friend in Islamabad. He spent time in Karachi and Islamabad, visiting relatives in Karachi. He was reluctant to inform the SSHD of the names and addresses of the family friends and relatives for fear of arousing the suspicion and attention of the Pakistani Security Services.
- Mohammed Al Ghabra: to the best of his knowledge and belief he'd never met him nor spoken to him nor had any form of contact with him.
- Oman: he says that he went to Oman at the suggestion of an individual called Mohammed whom he first met via a friend around August 2006 when Mohammed was coming from London. He tagged along with his friends. Mohammed had said they should come to London to stay with him. He started to call Mohammed casually, just to say hello and to email each other. They got on well and became friends. Mohammed instigated the discussions, seemed knowledgeable and intelligent, was older than him and treated him like an older brother.
- The next time he met Mohammed was early November 2006 when he went to London with some mates. AM contacted Mohammed and said that he was coming down to London and Mohammed invited him to his place. His friends dropped him off at Euston. They went to meet their friends, Mohammed collected him from Euston. He spent a few hours with him back at his place and afterwards got something to eat. His friends collected him again near Euston and they returned home.
- He met Mohammed again around January or February 2007 when he came to London with his friends. He went to see Mohammed on his own, went to his place and went for a meal. Mohammed told him he would be going to Pakistan around March/April to meet his family and for a holiday. He asked if AM fancied a holiday. AM asked where he was thinking of going and he said probably Oman. AM had not been on holiday for some time and decided that he would go. Mohammed telephoned him in mid March and said he would be going to Oman in mid April and a couple of days later gave a precise date, from the 12th of April. AM booked his ticket a week before he left and informed Mohammed that he would be in Oman on 15th April. He was due to return to the UK on the 19th. AM paid for his flight, Mohammed had already booked the hotel, AM intended to pay towards to cost of the hotel. AM took some time off work.
- AM left his house at approximately 8am on 14th April for his flight from Manchester airport to Oman via Turkey. He arrived at Oman at approximately 3am on Sunday the 15th. He was tired and rested most of Sunday the 15th, stayed in the hotel sleeping. In the evening he went out to eat with Mohammed and a couple of his friends form East London, Khalid and Haider. They then went back to the hotel, sat around and talked for a few hours.
- On the 16th they went to the beach around 10am. At an eating place near the beach, they met Saeed who'd come to meet Mohammed. He joined them for dinner and came back to the hotel. They all sat around talking from about 6-7pm. Saeed invited them all to join him the next day (the 17th) for a boat ride. AM said that he would. At around 7-8am next morning Saeed came knocking, the others couldn't be bothered. AM wanted to go, so he got ready. He went in the boat with Saeed and the boat handler. They were chatting and enjoying the view when events took a very dramatic turn. A helicopter started circling around quite low, showing a board saying "stop". Two boats approached, with eight fully armed men in each. This was the Royal Navy unit referred to in the control order submission. All three were taken from the boat onto a large boat and searched it. AM had no ID on him. They asked his name and he said "Ismail Ahmed", a false name because he panicked and was terrified. They asked for his address, he gave an address in Preston, of a distant relative. They asked for his date of birth and he gave an incorrect date, again because he was panicking. They asked for contact details and he gave them his old mobile number. He said he was from India which is correct and said he was on holiday. They asked who the other people on the boat were, he said Saeed, who was Mohammed's friend, and the boat handler. When they asked who is Mohammed, he replied, a friend from England who was at the hotel near the beach. They asked when he arrived in Oman, and when he planned to leave. He said he arrived on Sunday, which was correct, and planned to leave on Friday. They asked how he came to Oman, and he said by air transit via Turkey, all correct. They asked what he did in England. When asked what he did in his free time, he said he like to go to bars, clubs and so on. He was asked about a club in Preston called Tokyo Joes which he new. After the interview the interviewer said "this is ok, we're happy with this", they would pass his details to the authorities and have them verified. He was allowed to go back in the boat and the journey would be monitored. They had travelled some distance from where they had been stopped. When they got back, Saeed disappeared. After a few words with Mohammed, AM told Mohammed he wasn't happy, did not want to stay in Oman so he left early. He left on the same day of the incident, paying an extra £250 for his ticket to be amended. Since his arrival back in the UK he has not had any contact with Mohammed, nor does he wish to do so. He changed his telephone number so Mohammed couldn't get in touch with him that way.
- He then dealt with the alleged Security Service contact in May 2007. He said he was shown a picture of Saeed and was informed that he was a high value target. They wanted information about him. They mentioned the airline plot. He did not know what they meant at the time. They showed him a picture of a person he did not recognise and they stated he was linked to him as a mastermind of the airline plot. They then showed him documents they claimed were prepared in conjunction with the CIA, Pakistan Security Service and MI5. They stated that the various agencies had discussed the plot and said that AM's name had come up. He said he had nothing to say and they should speak to him, if at all, through his lawyer.
- He said that the Security Services contacted him on a few other occasions and said if he did not speak to them, they would be taking legal action against him. They stated they could get some person to speak about him. They could invest millions towards that, but they would rather give him a lot of money if he was willing to co-operate and that he should take this offer. He also received a large number of telephone calls. He felt he was being harassed and threatened. Friends and family had also been contacted by the Security Services to find out incriminating information about him. SP, a distant relative, who lived at the address in Preston he had given the Royal Navy, was given £100 and a telephone number to call if he had any information that would be of interest to the Security Services. Y a friend of his, was contacted. He felt harassed by the police and MI5. They offered him money in exchange for information. They said that they were suspicious that he was involved in the airline plot. AP was visited at his home and informed his family and his life was in danger and that he should provide information about AM. Finally, his father had been approached, but he refused to speak to them.
- He then dealt with the impact of the control order. He described how it had considerably affected his private life, his family life and caused great distress to them all. He was very shocked that he was no longer allowed even to go to his family's home, he liked to go out to bars and clubs with his friends but his curfew of 2am to 5am required him to leave early, which made his friends think he had changed a lot and become reclusive. He described the wearing of the tag as demeaning. His having to report several times a day was very hard, stressful and frustrating. He had abided by all the obligations except for one occasion where he had been marginally late to arrive home and was visited by the Police the following morning. He described his life as in turmoil.
- His second witness statement is dated 21st February 2008. He gave fuller details of his visits to Pakistan in 2004 and 2005, including details of his telephone contact with his own family in England weekly in 2004.
- In relation to the 2005 visit, he said he landed in Rawalpindi on 29th or 30th of October, that the wedding was at the end of November or early December and that he had returned to the UK two or three weeks after the wedding.
- He confirmed that he had had no contact with either Rashid Rauf or Abu Ubaydah Al Masri and confirmed from sight of a newspaper photograph of Rauf that he had never met him even under a different name.
- He also said that after had returned from Pakistan in December 2005 or early January 2006, he accompanied his sister on a pilgrimage to Saudi Arabia for three weeks.
- In relation to Al Ghabra, he says that his friend Y has told him that he had known Al Ghabra for a number of years. He was a loose family friend of his and Al Ghabra had attended Y's wedding in April 2007 at which AM was also present, though AM did not speak to anyone whom he did not previously know.
- Oman confirmed his account of his first meeting in Manchester with Mohammed. He confirmed that they texted one another every two or three weeks thereafter and would talk on the phone and would email. He supplied details of his email account stating that he had no objection to Security Services checking it.
- He confirmed that the next time he met Mohammed was in November 2006. He again confirmed that he drove down to Euston with his friends, arriving about 11am or midday, and that Mohammed met him there. He went to Mohammed's address some 10 or 15 minutes from Euston, but he couldn't remember whether by foot or car. They chatted generally. After that they stayed in touch by telephone every two weeks or so until his next visit in January or February 2007 when he went to London with the same friends by car, and met Mohammed near Euston. They kept in touch regularly between January – February 2007 and mid March, probably every couple of weeks. He had booked a holiday to go to Oman. He could not take more than 5 days off work, it was only meant to be a short break.
- He says that they all had a conversation one evening, on the 16th of April, when Mohammed started to bring up issues to do with politics and current affairs. He talked about Iraq, Afghanistan, Kashmir and Palestine. The general drift was that Muslims were being oppressed, that things were escalating, that they should participate in helping Muslims, they should do charity work. AM's reaction was to say that he lived in Britain, these things do not affect him directly, he had a decent life. Mohammed didn't seem to appreciate that. Mohammed said one needs to think one is part of a community even if it is miles away. AM said to him that that was his opinion but he had his own opinion. Khalid and Haider's attitude was one of indifference.
- As for the Royal Naval incident, he said that he gave the name Ismail because he panicked. He had never described himself as Ismail on any other occasion.
- He says that in the months leading up to August 2006 he was working full time, and was leading an ordinary life. In January 2006 he started working. He confirmed that he knew nothing about any of the individuals involved in the airline plot, nor had he ever done anything to facilitate it such as procuring chemicals.
- He gave further details of those alleged approaches: he claimed that Rick had on one occasion said that they wanted to talk to him and that he had a lot of offers of work for him. He might as well take the money, if not he could pay a guy from the training camp who could talk about him and so AM might as well negotiate. He could end up having a bad life or he could work for them and have a pleasant life. They could get him out of this and could pay.
- He says that, although he observes Ramadan and celebrates major festivals with his family, it does not affect his normal life and he lives a lifestyle which often contradicts Islam. He regards himself as British first, then a Muslim. He takes part in many social activities which are against both Muslim and Islamic culture. He is not interested in politics, does not feel a need to participate in activities in support of Muslims abroad as he is a British resident.
- As for the control order, his first priority is to be able to visit his family home, his second is for the curfew to be lifted or at least reduced. The third is to amend the reporting requirement which he finds incredibly difficult to live with.
- This statement exclusively addresses the impact of the control order. He comments that the accommodation provided to him is below standard and very basic, too small to have proper family events there. He would like to request the restrictions on him visiting his parents be removed and also he feels the impact of not being able to visit other countries in Europe such as his friends have planned to do.
- AM's fourth statement reiterates the problem of him being unable to participate in significant family events because of the inadequacy of his present accommodation and the restrictions on visiting his parents' home. He also comments on how the renewed control order prevents him from meeting his friends at home or outside in circumstances where they are reluctant to be security cleared by the Home Office for fear of targeting, thereby making him isolated. He reiterates the problems caused by the curfew. At that stage, it was between 11pm and 7am, saying much of his social life took place in night clubs and he cannot explain why he has to be home by 11pm. He describes his life as a nightmare: damaged friendships, limited family life, almost no social life, giving rise to stress to which he has been subject to one and a half years.
- His fifth witness statement, dated 23rd February 2009, for the modification hearing, describes as preposterous the suggestion that he is a member of a sleeper cell showing typical characteristics of a person preparing to martyr himself. He again describes his life as non religious, playing pool, drinking beer, going to clubs, seeing girls. He expresses his complete opposition to martyrdom and suicide bombing. He addresses his, by then, 12 hour curfew and the inadequacy of the 2am extension to his curfew, seeking it to be extended to 4am. He explains the impracticality of requirement to supply to address of all persons who visit his home and the impracticality of making that requirement for prearranged meetings outside of his home. He explains how unworkable the former is, if a friend comes to his home accompanied by another person whom he doesn't know at all, or where he wants to become involved with a girl. He says that the court order obligations do not reflect reality. He makes a similar point about the obligation for him to ask visitors to his house to turn off their mobile phones. He says it is unenforceable and it only persists to make his life difficult. He makes the same point in respect of the requirement that his family turn off all their computer equipment and mobile phones when he visits home. If he wanted to use the internet he could do so by using the mobile phones of his friends. He asks for the order to be adjusted to enable him to visit his family three times a week and rejects the account of the alleged breach by his visit to a computer shop, his account being that he was there to collect a refund not to collect any hard disks. He stated that he gained new employment starting on the 9th of March.
- His sixth witness statement deals in greater detail with the computer shop allegation and calls into question the need for a longer curfew because he was out of work, pointing to his annual leave and weekends when it had not been suggested a longer curfew was required.
- His seventh witness statement, made specifically for the purpose of this hearing, denies the allegation that he had a conversation with AY on the 9th of August 2006. He did not recognise the 235 number which AY allegedly phoned. It is a number he has never knowingly used. He confirmed that his mobile number ends 918. He denies being called "Izzy" at any stage and says the suggestion that he is prepared to martyr himself is ridiculous.
- He then describes in some detail the approaches he says were made by "Rick" on 7th May 2009 and Rick's account that, if he spoke to them and was open and forthcoming, they could change the assessment made against him, and could assist removing the control order. He described a second visit on the 15th of May 2009 by Rick whom, he says, tried to distance himself from the control order and said " if you speak to us and look us in the eye and tell us you're a changed man, then the control order will be over". Rick also said "we did not want to waste our resources on someone like you, we know that you are not a loony radical and it would be much easier for both of us to talk things out and keep them simple".
- He dealt with the allegation that the X Box was capable of being connected to the internet and so had to be removed. He explains that the police had seen it in his residence for about 6 weeks and at the end of that time they removed it. He says that he could not and had not connected it to the internet.
- In connection with his visits to Pakistan, he says that in 2005 he flew out at the end of October and came back at the end of December - the 23rd.
- In relation to the effect of the control order, he repeated what he had said in previous witness statements and said it was no exaggeration to say it was psychological torture and emphasised his isolation.
- In his eight witness statement he repeated matters already referred to, but said, in addition, that he planned to start a university course in September in accounting and financial studies.
- Following the eight control order statement from the Secretary of State, AM produced a further witness statement denying that he was an Al Qaeda operative, or that he ever had a code name such as Ismail. He repeated he did not recognise the 235 number. It was not a number that he had ever knowingly used and he could only assume a mistake had been made. He denied each and every allegation contained in that eighth SSHD statement. He said he had no recollection whether his passport came up for renewal at around July 2006 and had no recollection of applying for a new passport. The SSHD was in possession of his passports since the imposition of the control order.
- In oral evidence, in chief, he said that since May of this year he had been working fulltime selling financial services. He explained that he was starting university in September, a full time degree, having undertaken a foundation studies programme for a couple of months in February and a couple of weeks in July 2009. He currently had a conditional offer. He described his typical day; and he felt isolated and excluded. He described his life prior to the control order - clubbing, visiting the cinema or going to the local park, all of which had come to an end. He had had an inner circle of about five or six friends, excluding people from work. He now saw only two of them, whom he had told about the control order, one of whom, Y, he was no longer allowed to see. He described his mother's deteriorating health due to stress, possible depression.
- He described and confirmed the approaches that he claims were made by the Security Services in May 2007. He described the words as threatening, though not the manner. He regarded the timing of the approached in May 2009 as a form of blackmail and repeated the detailed account he had given in his witness statements. He emphasised his priorities in relation to changing the obligations. He wanted the restriction on visiting to his parent's house to be removed as well as the obligation not to have internet access there. He also wanted the restriction on having people at his residence removed or limited, as well as those requiring him to give information about people's identifications or to require them to switch off their mobile phones. He also wanted the curfew to be reduced and extended to 4am to enable him to go clubbing. He wanted his residence to be moved to somewhere closer than the two miles away from his family home. As his family did not have access to a car.
- In cross-examination he was asked about the 942 number, his old number, and the 918 number. It was suggested that, when he said in a witness statement that he had changed his phone number after his return form Oman in April 2007, that that could not have been the 942 number, as he had ceased using it some years earlier. AM was uncertain on that point but was sure that he had never had any other phone, and it may be that it was the 942 number that he was referring to in that statement.
- He didn't accept that the trip to Oman was a very short one, compared with the amount that it cost, and the amount of time it took him to get there. He had taken such limited holiday as he had available.
- He had never used the 235 phone number, never received any phone calls from AY whether about false documents or otherwise, never had terrorist training.
- He expressed a view that the Security Services had never genuinely believed that he was involved in terrorist related activities.
- He said that prior to the control order he used to go clubbing quite a bit, visited the cinema and the park. He could no longer visit the cinema with his friends because, for the most part, they were unaware of the control order and liked to go later than could be accommodated by a midnight return home. He hadn't taken advantage of the extension to 2am, because that was no use to him; going clubbing it would have to be 4am.
- He said that the 7/7 attack was wrong and shouldn't have happened; there was not justification for it. He regarded it as morally and religiously wrong, it would be a sin.
- He insisted that the phrase 'loony radical' had been used by the Security Service, and he claimed that he told the Security Service that they were very unprofessional, their intelligence wasn't correct and he emphasised that they had said that they didn't want to waste resources on him because they knew he wasn't a loony radical.
- After his evidence a further witness statement was submitted. He said that the only two mobile numbers he recalled using in the last four years were 942 and 918. He had used the 942 from some point in early 2005, through to after his return form Oman. His use of that number overlapped with 918. His decision to stop using 942 was what he was referring to in his witness statement when he said he changed his number after his return form Oman. The 918 number went live on the 19th of April 2006 and continues to be his number. He had purchased two other phones for his sisters but never used them.
- As for foreign travel, he stated that he had never been anywhere other than: India when he was a child, Pakistan in 2001, 2004, 2005, Oman 2007 and Saudi Arabia in early 2006.
- There was a witness statement from AM's father who confirmed the family visit in 2001 to Pakistan, and two further visits by AM to Pakistan. The 2004 visit was after he had decided to leave school before his GCSE exams. AM's father went to Pakistan for a holiday after his son had been there for three or four months, he stayed with his son at the home of family whom he had been visiting. During that visit AM had regular telephone contact with his family, and they would contact him at the house number for the family with whom he was staying. He says AM would not have had any opportunity to go to any training camp without his knowledge. AM went again, in around December 2005, the main reason being to attend a wedding.
- He described the impact of the control order, indicating that the whole family now felt criminalised, where AM had done absolutely nothing wrong.
- There was a witness statement from the GP to AM's mother, who suffers form chronic anxiety and depression. She has been under the care of a psychiatrist for several years but her symptoms have been significantly aggravated during 2007 because of the control order. She is currently on medication.
- One of AM's sisters has provided a witness statement confirming that he accompanied her to Saudi Arabia in December 2005 for hajj. They stayed for approximately three weeks and returned in mid January 2006. She too describes the adverse impact on AM's mother's health. It has driven her deeper into depression. She, too, expressed the feeling that they were being criminalised but did not know what for.
- AP, also provided a witness statement. He had been a friend of AM's since the age of eight or nine. He claims that he was visited by MI5, which was no surprise as he was aware of the claims of approaches made by AM and Mr Y.. He claims that they asked questions about AM. They asked him what they did when they met up. AP told them that they got high, went partying and that was about all. They stated that they reckoned AM was linked to al Qaeda, to which his response was they were having a laugh. He thought it was a practical joke and asked again for their identity badges.
- He gave oral evidence. He said that he was married on the 6th of August 2006 and went on honeymoon on the 11th. AM was his best man and had been preoccupied with that role prior to the wedding on the 6th of August and to some extent afterwards. He described AM's current attitude as very depressed. In cross examination he said that he used to go clubbing with AM about once every couple of months.
- Y provided a witness statement. He has known AM since around the age of seven. He works at a pharmacy as a technician dispensing medicine. He described an approach he claims was made by MI5 agents in mid May 2007. He claims that the agent said that Y was the best friend of AM and he wanted information related to terrorist activities. This shocked him, because he did not believe AM was involved in such activities. He described an approach made to Y's manager at the chemist Mr Hussain who misled them by saying that he was Mr Hussain's brother and that he would pass the message on. Y described contacts he claimed he had with MI5 agents on around 10-15 occasions in May and October 2007. He felt he was continuously being harassed and he reluctantly agreed to meet them in a hotel. They showed pictures of Mr Al Ghabra, and claimed that he planned to blow up planes from London, and that Y could get good money if he worked for MI5. They said AM was planning to blow up planes, using explosives in bottles and had planned it with Mr Al Ghabra. He was given £50 for his expenses and said they would be in contact and left contact numbers. They asked him about Mr Al Ghabra whom he said he knew as a family friend. Al Ghabra had attended his wedding briefly. AM was also at his wedding but was not introduced to Al Ghabra.
- Y gave evidence, he described one of the MI5 agents as having blue eyes, some five foot ten, about 27 years old. He said his name was Peter. He also confirmed that AP was married on the 6th of August 2006 and that AM was his best man, but he hadn't met during the week following the wedding. He too described AM as very depressed. His mother was ill, and he worried about her.
- His evidence in chief is contained in his statement dated 19 December 2007. He confirmed that statement, subject to minor amendment. He confirmed that he believed the various statements to be true and to contain assessments with which he agreed.
- In cross-examination he agreed that the security services first assessed that AM was involved in the transatlantic airline plot in August 2006 and that, by June 2007, CPS had concluded there was no realistic prospect of a conviction of AM for any criminal offence.
- He agreed that paragraphs 28 to 31 of the seventh security service submission presented the heart of the case against AM.
- He agreed that he had seen a very limited amount of material disclosed by the police and CPS in the airline plot trial.
- He said that because AM was banned from seeing Y, on that basis Y was of interest to the security services.
- In relation the vast majority of questions asked, he indicated he was unable to answer them in open or in camera session. He said that he was considering that stance, not on the basis of categories but on the merits of each question as it came.
- The control order was something they were obliged to seek to mitigate the risk posed to national security by AM. Another option was prosecution.
- He agreed that the question of motivation feeds into the reliability of informers.
- He had no reason to dispute that 400,000 British residents visited Pakistan each year.
- In general terms, he explained what he meant by extremist material: videos available from sites glamorising an Islamist insurgency. He had never accessed that material in his personal life.
- He was not the principal author of the sixth or the eighth statement. The sixth statement's principal author was a member of the legal department of the security service.
- He did not accept the suggestion that the control order was purely there to force AM to become an informant for the security service. They still considered AM to be a serious threat to national security.
- He agreed that, by April 2007, by virtue of his being stopped by the Royal Navy, he would be aware that an element of the UK authorities was aware of him.
- He contributed to the process of determining the package of obligations contained within the control order. He had attended some, but not all, of the Control Order Liaison Group and Control Order Review Group meetings. He was able to say that the recommended increase in AM's curfew hours was because the security service assessed that the risk posed by AM was not being sufficiently managed by his original three hour curfew.
- Dealing with the restrictions on visiting and meetings, he considered the obligations to be necessary. He did not accept that he would have to tell everyone who visited his home that he was on a control order. He could come up with a number of reasons for requiring certain information from those who he would wish to meet at his home which would involve lying to them. The obligations were to be regarded as a package.
- He said that the thrust of the case, the most serious allegations, were in the open case and that those allegations answered the ongoing necessity for the control order on the basis that he was considered a serious threat to national security.
- She provided witness statements and gave evidence. She is a grade 6 civil servant at the Home Office. She chairs the control order review group (CORG), set up in May 2006 and held quarterly. This subjected AM's control order to periodic reviews and she produced the open minutes of that group. She described the various alterations to his obligations. In cross examination, on the issue of disclosure, she emphasised that they relied heavily on the advice of the Security Services and the Security Service's legal advisers. In relation to the decision to withhold information in relation to any approaches that may have been made by MI5, she said that the Security Services took the lead, though the policy in terms of "NCND" was a well known policy adopted by the Home Office.
- In relation to the exculpatory material she said that SSHD considered the advice of The Security Service who would normally undertake exculpatory reviews in conjunction with legal counsel.
- In relation to consideration of consistency, as between various persons the subject of control orders, she stated that they would reply primarily on the Security Service to have constructed the case and to have updated it as necessary in the light of any developments. She was unable to provide detail about any review of the case against AY, who was subject to a control order to ensure consistency with the case against AM. In particular, in relation to reference to the phone call allegedly made by AY to AM on 9th August after her oral evidence she provided a written response. She said that, during preparation of the national security statements, in respect of AM and AY, the open and closed statements were checked for consistency as between the two. This was done during the rule 27 processes in both cases. Currently, the open case against AY set out various matters including that AY admitted that he had planned to travel up north on 10th August before being disrupted by his arrest on the 9th. The reason he gave was that he needed to visit an individual names Izzy with whom he had been put into contact by a relative in Pakistan. Gulzar had been told this individual could help him obtain a false British passport. The Security Service maintained its assessment that Izzy is actually AM and that the true reason for the planned trip up north was to do with transatlantic airlines plot. Thus, although no specific reference is made to the telephone call allegedly made by AY to AM on 9th August, the AY statement was to the effect that he had been put into contact with Izzy.
- She agreed that SSHD did not receive any information on, and that no control order had been imposed on either Y or Al Ghabra.
- She didn't believe that SSHD had been informed of the extent of the oral evidence advanced by AY or his wife at his trial, nor any specific reference been made to the claims of Mr Rauf and Al Libi of having been tortured when he was considering AM's case.
- She didn't think that it would be appropriate to advise SSHD, as potentially exculpatory, if an individual approach made by the security services with a view to investigation of another individual gave no incriminating evidence at all that the other individual was not involved in terrorist activity.
- She agreed that the first package of individual obligations was drafted by the Security Services who are best placed to advise, and that they would have a fairly clearly idea of the types of obligations that they thought would be appropriate. There would then be some iterative discussions about exactly what was best, but the service was normally best placed to recommend such matters as curfew lengths. There were a series of meetings to discuss a new control order including the control order liaison group, which she said would be the end of a process of discussion rather than the beginning of a process.
- She agreed that "exit strategy" is a formal part of what is considered at each CORG meeting. They take that seriously at all stages and it is reflected in the CORG minutes. Asked about the strengthening of the conditions in December 2007, she said that other than it took account of ongoing advice from the Security Service but she was unable to give evidence in detail. The same applied when, in June 2009, certain alterations which had been made to the conditions by Collins J in September 2008 were reversed. She was unable to say more than that all these matters were based on the Security Services' advice.
- She stated that the right of a controllee to anonymity and the tension between that right and the obligations under a control order were something they were conscious of, though she did not think they had ever provided express advice to the Secretary of State on that issue. The view that they reached was that the inconveniences and logistical difficulties, which impacted on anonymity, were justified given what they were trying to achieve.
- When asked about AM's provision of names and other, limited, details of those with whom he wished to have meetings, whether outside or in his residence, she said that they would not have asked the police to try to identity those persons from such information. She didn't think it would be appropriate. She didn't know whether they had considered that as an option. When requests were made to approve names, they would send them to colleagues in the Security Service and get their advice. There may be then an iterative process depending on the nature of the particular request.
- She was asked about the practicability of asking visitors to his residence to switch off their mobile phones, she agreed that this had never been enforced, that the police had visited the premises twice, on the first: the visitors were on their way out so their identities weren't checked, and on the second their identity was asked for and AM had assisted in smoothing that process.
- She indicated that AM's request for his residence to be moved closer to his family home would not be approved based on national security considerations.
- She confirmed that she had checked the with police officer primarily responsible for monitoring AM who had confirmed that there was no evidence of AM expressing contempt for the police.
- Subsequent to her evidence, Ms Hadland submitted a further witness statement dated the 28th of July. In that witness statement she sought to clarify what may have been a misleading impression. She stated that the advice of the Security Service on matters of national security is a matter to which the Home Secretary will give considerable weight. However, the Home Secretary applies his own mind to the material before him, and will not make or renew a control order unless satisfied that the relevant statutory tests are made out and that it is the proper course in all the circumstances of the case. She cited, in support, Lord Carlile's most recent report where he confirmed that ministers "do not act as a mere cipher when the papers are placed before them, the process is rigorous and structured in an appropriate way so that the decisions are definitely those of the Home Secretary herself, not those of her officials".
- She also says that there have been occasions, of which she was aware, where the Home Secretary has not accepted Security Service advice, including one occasion where the home Secretary declined to make a control order despite the Security Services' view that a control order was necessary.
- The closed case is extensive and covers a number of different subjects. It was common ground at the hearing that the nub of SSHD's case, is reflected in the material which has been disclosed to AM in the 7th and 8th SSHD statements, in particular paragraphs 7, 20-31 of the 7th statement and the 8th statement, subject to certain undertakings and dealt at the trial in camera . In summarising the closed case and the closed evidence, I shall focus on this set of allegations which comprises the nub of SSHD's case against AM.
- AM's open submissions are contained in a document of 29th July 2009 and were supplemented by oral argument as well as a document dated 14 September 2009 which responds to disclosure made on 5 August 2009. I have considered these submissions in full. I do not repeat those arguments in detail but limit myself to summarising them.
- First, he submits that the court cannot find as a fact that there was any reasonable suspicion that AM had been involved in terrorism related activity as at 2007 or today because:
- Second: he also submits that the control order as made in June 2007 should be quashed on conventional JR grounds, namely:
- Third: he submits that the control order must be varied, there being no open evidence or allegations capable of supporting the case that any of the following obligations were necessary:
- Fourth: he submits that the control order should not be upheld without further disclosure, whether on standard public interest grounds or compliance with Article 6 because:
- Fifth: he raises the question that any reliance placed on information emanating from Rashid Rauf or Faraj Al Libi would be unlawful as possibly derivng from torture and sixth, he raises the question of abuse of process in relation to the involvement of security services in the interrogation of Rashid Rauf.
- Those are contained in a document dated 29th July 2009, running through pages 18-61 of the written submissions and supplemented by oral argument as well as the document dated 14 September 2009. Once again, I have considered these submissions in their entirety and I set out, in the in camera judgment, a summary of those submissions.
- The principal contention is that any tightening of the obligations originally imposed in June 2007, in particular in December 2007 and June 2008, would be impermissible. The SSHD has not disclosed any allegations beyond those to which reference has been made and, for the court to rely on any other matters which had not been disclosed to AM in any form, would be contrary to Article 6.
- In respect to particular obligations, it is said that certain of them are not necessary.
- The obligations imposed in June 2008 required him to obtain the prior agreement of the Home Office before he could meet individuals by prior arrangement (obligation 5). This is said to be very broad, applying to regular social events as well as to individual events. Although it is not a requirement in the obligation that he supply any particular information about the persons, the Secretary of State has made it a condition that he supply their names and addresses before consent would be forthcoming. However, the Home Office has been prepared to approve two individuals without being provided with their addresses.
- In June 2008, the obligation was imposed requiring prior agreement of the Home Office before he could have visitors to his residence and requiring him to supply their addresses and dates of birth, the specific justification being that is was necessary to identify the individual's concerned. In September 2008, Collins J rejected the contention that the requirement to give prior notification was necessary, and that the requirement to supply dates of birth was necessary. Accordingly, the order was modified. Reliance is placed on the statement in MB in the Court of Appeal that the process of arriving at appropriate obligations would involve a dialogue between SSHD, the controlled person, with the assistance of the court. In light of that, it is contended that it would be sufficient for AM to provide such information as he could about visitors, or those he wished to meet, so that if the Home Office was unable to identify the person, it could request further information before it approved him seeing that person again. That suggestion was rejected in March 2009 by Keith J.
- In June 2009 the control order was modified to reinstate the prior notification requirement in relation to visitors to his home and the requirement that the photographic ID and date of birth be supplied by all visitors. AM's contention is that this would effectively oblige him to inform anyone whose address he did not already know and whose photographic ID he did not have that he was under a control order, thereby removing his entitlement to anonymity in respect of the order. It is said to be both wrong and impracticable for him to come up with a plausible lie why he might require that information. Accordingly, AM makes the following submissions:
- It is contended that AM is part of a close knit family. His designated residence is 25 minutes walk away. There is no open justification for restriction on the number of times AM can enter his family's home. Further, stringent undertakings given by his family in September 2008 constitute a real inconvenience for them - to have to turn off mobile phones and computer games when he visits - and operate as a deterrent to him doing so. AM contends: that the obligation is unclear and that he could access such devices outside curfew hours, when he is with friends and family outside; that the police are entitled to monitor use and inspect equipment at AM's family home; and, accordingly, the obligation is overkill. Objection is also taken to the refusal to permit him to live closer to his family "for national security" reasons.
- It is said that the requirement that visitors switch off their mobile phones is very intrusive. It requires AM to disclose the control order to friends and colleagues and is unenforceable. He points to the fact that on the only occasion when the police visited when visitors were present, AM co-operated in obtaining compliance with the terms of the order. It is said that this obligation, being described in the CORG minute as "useful" falls short of being necessary.
- The once weekly relaxation of the curfew to 2am is said in practice to be useless and that only an extension to 4am will enable him to visit nightclubs. That is the only extension which would have any utility and would not be disproportionate.
- It is contended that there is no open allegation against Y, and witness V refused to answer any questions about him. It is, therefore, said that this obligation cannot be supported as to do so would be inconsistent with the requirements of disclosure under Article 6.
- It is suggested that the control order be varied to make clear that, so long as AM has no means of connecting the X Box to the internet and does not do so, he should be permitted to have it and use it for playing computer games.
- Among submissions made are that the court should subject the evidence to rigorous scrutiny and AM has received insufficient disclosure of the closed case against him to enable him to properly defend himself.
- It is submitted that, whilst there is open evidence of breach, the fact that he is older and demonstrating a maturity by his intention to go to university is said to indicate that the very stringent obligations presently in place are no longer justified.
- The core of the case is AM's involvement in the transatlantic airlines plot and his continuous willingness to engage in terrorist attacks. It is assessed that AM was "Ismail"/"Izzy" whom AY was planning to meet in August 2006 to provide operational tasking. AM was willing then to carry out a suicide bombing and to carry out an attack.
- This assessment is supported by evidence which is said to be compelling including evidence showing that AM was the user of the 235 mobile used by "Izzy". The disclosure, in the form of the eighth statement comprising the gist of the core of the SSHD's case made on 13th July 2009, was to give AM the opportunity effectively to challenge the allegations against him, and provided him with further information on the reasons why it is said that the 235 number was linked to him. It is said that this constitutes sufficient disclosure.
- AM's response has been a bare denial of involvement in any terrorism related activity. He denies being associated with the 235 number.
- SSHD invites the court to consider that AM, in his oral evidence, was evasive, unhelpful, at times hostile, and on many occasions disinclined to answer a question by going beyond matters which were in his statements. He was reluctant to be helpful about his trips abroad, and was unconvincing as to why he spent so much money and hours travelling on a trip to Oman which was only ever planned to give him a small number of clear days in Oman, to be with someone he had only met three times.
- Reliance is also placed on the fact that, when questioned by the Royal Navy, he gave a false name which happened to include the name "Ismail".
- The court is invited to draw an adverse inference from the different accounts he has given in his statements of the dates in 2005 when he was in Pakistan.
- The court is also invited to draw an adverse inference from the way in which he gave his evidence about his mobile phone numbers 918 and 942, in the context of his written evidence that, after the trip to Oman he had changed his mobile number. The court is also invited to draw an adverse inference from the fact that, on 27th July 2009, he submitted a further written statement to deal with that issue, which he was apparently unable or unwilling to deal with when giving oral evidence.
- SSHD points out that, although AM said in evidence he did not believe that the Security Service ever genuinely suspected him, and that they had made up things about him, it was never put to the SSHD witnesses that any part of the case against AM had been falsified or fabricated. Nor did AM claim that he was threatened with having evidence fabricated against him if he did not agree to act as an informant.
- The SSHD says that, in so far as it is AM's case that SSHD's view is that a control order is no longer necessary, SSHD submits that witness V was clear in his evidence that the Security Service still considered AM to be a serious threat to the national security and that, in the light of the core allegations, it would be astonishing if the Security Service did not assess him to present a continuing risk.
- The SSHD describes AM's case as follows: the Security Service wished to secure his cooperation in providing information, that this was not a valid reason for imposing a control order, if the decision to impose a control order was for the purpose of securing his cooperation as an informant, it constituted an improper purpose so as to render the decision flawed. SSHD neither confirmed nor denied whether the Security Service had made any approach to AM. However, on a hypothetical basis the SSHD submits that the general rule is that, provided the permitted purpose is the true and dominant purpose, even though some secondary or incidental advantage may be gained, there is a distinction between that situation and one where the permitted purpose was a mere pretext, and the dominant purpose was ultra vires (R v Crown Court at Southwark ex parte Bowles 1998 AC 641 at 651 c-e). SSHD contends that if there were an incidental advantage to be gained by imposing a control order, the control order would not be legally flawed unless the court was satisfied that was the dominant purpose. Second, the control order was not imposed by the Security Service but by SSHD. Third, the Security Services' consistent assessment of the level of AM's risk to national security, and its view that a control order was necessary.
- SSHD says that there is a world of difference between taking advice from a body whose express statutory function is the protection of national security and unlawfully delegating the entire decision making power to that body. SSHD relies on the evidence of Susan Hadland, in her final witness statement, that the Secretary of State applies his own mind to the material before him and has not always accepted security service advice in relation to the need for a control order.
- If the core allegations are well made, then not only has AM shown a very serious level of commitment to extremist activities - his willingness to martyr himself in an attack which would have resulted in a mass loss of life - but that willingness is not diminished as a result of the arrests in August 2006, but has continued in light of: AM's continuing denial of any such involvement; his lies to the court about his past activities and the absence of any acknowledgement of any change of heart. It is contended that those actions are all consistent with someone who remains committed to violent terrorism and who remains a serious threat to national security. On that basis, the court is invited to uphold the renewal of the control order.
- SSHD contends that the court is entitled to show some deference to the assessments made by SSHD on this issue. It is said that AM's involvement is at the most serious end of the spectrum and that the legitimate objects of the controls are:
- It is emphasised that the obligations operate as a package and that inconsistencies of severity throughout the day, for example, his ability to access the internet or mobile phones when out of the house compared with the obligations when he is at home, should not be given undue weight in considering the package of the obligations. The obligations are not designed to be foolproof against terrorism related activity but are designed to disrupt the individual and reduce his ability to reengage in such activity without detection.
- SSHD points out that in AM's case:
- SSHD points out that AM relies on the judgment of Ouseley J in Times Newspapers Ltd v SSHD 2008 EWHC 2455 (Admin). In that case the court was dealing with an application to lift an anonymity order imposed by Mitting J. The concerns highlighted in paragraph 5 of the judgement were expressed in the context of the identification of the controlled person in the mass media, whereas in the present case, AM's primary concern is preserving his day to day anonymity amongst his friends and associates.
- SSHD contends that there is an inevitable tension between any control order obligation and a desire to keep the existence of the control order confidential. SSHD submits that the test is as articulated by Keith J in the modification appeal at paragraph 8:
- Initially no restrictions in this respect were in place. On 17th December 2007 a total prohibition was imposed. In September 2008, Collins J directed that the control order be modified so that AM would be permitted to visit his parents' home twice a week. It was subject to agreement to: the computer being switched off and unplugged; there being no use of any internet equipment; and a recognition that the police are entitled to come and check and may take the hard drive. That agreement having been given, the visits were subject to advance notice was given of the day and hours of the visit. In February 2009, AM appealed against the requirement that the family should have to turn off the computers during his visit but that appeal was dismissed.
- SSHD contends that it is necessary for AM to be limited to visiting his parents' address on two occasions each week and subject to these conditions. It is pointed out that he lives only 10 minutes drive away form his parents' home, there is no prohibition on him being visited by his family at his residence at any time.
- SSHD invites me to take into account the following matters: the fact that he is 21, planning on going to university, his close proximity to his parents' home, the lack of restriction on visits by his family to his flat, and the fact that he is able to visit his parents home on two occasions per week, with minimal interference to their day to day lives.
- Obligation 4 requires prior approval for visitors to his residence. AM has to supply the name, address, date of birth and photographic identification of each proposed visitor before their first visit. Obligation 5 prohibits meetings outside the residence, save with prior approval of the Home Office. SSHD has indicated that AM must supply a list of persons he wishes to meet for prior approval. SSHD submits that these obligations are necessary and proportionate because the threat which AM poses requires particular management of his ability to meet with others. However, the control order is sufficiently flexible to allow him actively to pursue a social life. His curfew does not begin until midnight, leaving him free to leave the residence during the evenings. In those circumstances the visitor obligations and obligations in respect of meetings outside of the residence are not flawed.
- SSHD contends that the current curfew is necessary and proportionate, that the original three hours was not adequate to manage the risk which AM posed and that the court should be very slow to interfere with such assessment, given the threat which AM poses to national security.
- SSHD contends that the disclosure in the gist of the core allegations not only gives the allegations themselves but a good indication of the evidential basis in respect of each of planks of the case against him. He has been provided with a sufficient opportunity effectively to challenge each of the main allegations against him.
- My tasks are to decide whether the Secretary of State's respective decisions: that he had reasonable grounds for suspecting that AM is or had been involved in terrorist related activity; and that 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 him, was flawed. In so doing, in the first instance, it is for me to decide: first whether there are, or were, reasonable grounds for so suspecting; and, second, whether it is or was necessary to make a control order imposing the specific obligations on AM. In the former case, the decision has to be my own. In the latter case, whilst it is my decision, I have to pay due deference to the judgments and assessments made by the SSHD as advised by the Security Services.
- In each case, my decisions have to be made after a fair trial, which is compliant with Article 6. In particular, where a decision is based, to any significant extent, on closed material, I must be satisfied that AM has had sufficient notice of, and sufficient information about, the allegations to enable him to give effective instructions. If so, I may have regard to those matters but, if not I have to disregard them. I must, therefore, identify what matters I may consider and what matters I must disregard, and reach my conclusions only on those matters to which I can properly have regard.
- In my judgment, in relation to the first question, I may only have regard to the those allegations which have been described as the nub of the case against AM which were set out at paragraphs 20-31 of the 7th open statement on behalf of the Secretary of State, dated April 2009 and the 8th open statement (subject to express confidentiality undertakings) dated July 2009. I can only have regard to these matters if, in my judgement, the case, as set out in those documents, satisfies the test of sufficiency of information to which I have already referred.
- I reject the contentions of the open and closed advocates for AM, that, in particular, the gist served in July 2009 is insufficient to discharge the Article 6 burden. I have summarised these in the in camera judgment. He also knows that the view of the Security Service is that he remained willing to conduct an attack notwithstanding AY's arrest and disruption of the airline plot.
- In my judgment, the statements of the case against him set out clearly the allegations which are at the crux of the case against AM and provide sufficient detail to enable AM to give instructions effect to enable his case to be put by his advocates. AM in his oral evidence and in his written evidence has responded fully to these contentions by denying that he ever used phone 235, thereby denying the basis upon which it is said he was Izzy.
- Having considered all the material, I am satisfied that AM is Ismail and that he was contacted by AY, on phone 235 for terrorist related purposes.
- I am also satisfied from all the material that the purpose of the phone contact between AY and Izzy was for AY to give instructions about the Trans- Atlantic airlines plot.
- The open and in camera evidence: is all, in my judgment, consistent with the closed material.
- Furthermore, I have had the opportunity of seeing and hearing AM give evidence. In so doing, he is, in my judgment, highly intelligent, calm and cautious beyond his years. He was only prepared to say in oral evidence whatever was contained in his written evidence. He is strong minded and disciplined. In the face of the overwhelming evidence against him, his firm consistent denials are, in my judgment, simply untrue. They have been maintained with a degree of calmness and self confidence which, in my judgment, is consistent with the view of the Security Service that he is a disciplined, trained and committed person whose commitment remains unimpaired.
- In my judgement, therefore, there is an overwhelming case that there are reasonable grounds for suspecting that AM has been involved in terrorism related activity and would continue to be so if he had the opportunity. In those circumstances, it is, in my judgment, necessary for the purposes connected with protecting members of the public from a risk of terrorism to subject him to a control order.
- In making that judgment I have considered the submissions made both by the open and closed advocates.
- In my judgment, the fact that AY was acquitted at his trial, has little to relevance to these issues. The jury had to answer the question, whether they were sure that AY was a conspirator to the airline bomb plot. I have to answer a different question in relation to AM on different evidence. The jury was not sure of AY guilt, on the basis of the evidence placed before them, but the evidence placed before me is different.
- I bear in mind the need to ensure that the best evidence is placed before the court. In my judgment it is.
- I have considered whether the decision of SSHD is flawed because of improper delegation to the Security Services. I am satisfied that it is not. It is plain that the Security Services has had significant input in terms of the provision of evidence and advice to the Secretary of State, but it is also clear from the evidence of Susan Hadland that the final decision is that of the Secretary of State's, and that it is not inevitable that the Secretary of State accepts the advice given by the Security Services.
- It is said that the Secretary of State failed to pursue various lines of enquiry, such as the impact of AY's trial result, looking at the full phone record, making enquiries about the renewal of the passport, the statements made by AM himself after the imposition of the first control order and his evidence of the alleged approaches made by the Security Services to his family and friends, who it is said expressed surprise that the contention that he was involved in terrorist activity.
- I have already indicated that the outcome of AY's trial has very little, if any, relevance to these issues for the reasons I have indicated.
- The phone, open and closed, evidence as to the identity of Ismail, the holder and user of phone 235, was the best evidence. In those circumstances, whatever other records might have been of use of that phone at an earlier usage, the Secretary of State had evidence that AM used that phone for terrorist related purposes. She also had the evidence, already referred to, that AM claimed to be Ismail when stopped by the Royal Navy.
- As for the renewal of the passport, the Home Office was able to obtain information about the expiry date of his original passport.
- As for his witness statements and the alleged approaches to him made by the Security Services: AM's continued and continuing denial of any involvement in the airline plot, or any intention to be involved in terrorist activity, whether in his witness statements, or from the views of those who claim they have been approached by the Security Services could add nothing in the face of the overwhelming evidence of his past involvement and future intentions. I have considered these matters and the view to which I have come is the same as that of the SSHD.
- It is said that the evidence of AM discloses that the Security Services either fabricated the case against him, or used the control order as a tool, in either case for the purpose of persuading him to become an informant against Al Qaeda.
- The case of fabrication has scarcely been advanced, except through AM's evidence. The more significant argument is that it is said that the Security Service's assessment is wrong but, nonetheless, they have used the threat of a control order as a lever to try to persuade him to become an informant, even though they may not have believed that he posed a threat such as to justify a control order. There is the alleged use of threats of what might happen to him or his family if they were to go abroad. He is allegedly told that he is running out of time to talk to them pending legal proceedings. They have allegedly said that Al Qaeda would no longer be interested in him and that the Security Services did not think that he was a particularly dangerous extremist. They allegedly offer him a future which would be exciting and rewarding and make veiled hints of money to be available for him if he were to speak to them about Al Qaeda.
- In my judgment, having heard all the evidence I am satisfied that the decision to impose the control order did not involve any ulterior purpose. The Security Services have a number of functions, the principal of which is securing the safety of the state. The making of a control order by the SSHD, based on evidence obtained and advice given by the Security Services, is one only of the tools available. There is no obligation on the Security Services to advise that a control order be made at any particular point in their investigation of an individual. There are other options available, for example, to prosecute him.
- Without confirming in this instance whether or not AM was in fact approached, as a matter of principle, in my judgment, in discharging their function of assessing and advising SSHD on risks that individuals pose. The Security Service would be entitled to have regard to the extent, if any, of their willingness to engage with them, or to admit what they have done in the past, or to give them information about their activities and the activities of those of whom they were aware, or to their willingness to turn away from such activity in the future. In any event, decisions are taken by the Secretary of State and not the Security Service. Accordingly, I reject contention that the Secretary of State's decisions were unlawful, as having been made for an ulterior purpose.
- A number of arguments have been advanced concerning disclosure. As I have stated above, I have limited my consideration of the material to the core allegations which I have identified and in respect of which, in my judgment, sufficient information has been given to satisfy Article 6. I am also satisfied that the approach of the Secretary of State and the Security Services to disclosure has not been informed improperly by the making of class claims. On the contrary, it is clear to me that witness V, in the course of his evidence, punctiliously took the approach that he was not simply declining to answer or refusing to disclose material on the basis of their class, but did have regard to the particular questions and the particular issue and he tried to be as helpful as he could without disclosing material which would be damaging to national security.
- In my judgment, however, there were two respects in which he could have provided information without endangering national security. Those were, respectively, whether the Home office had adduced any evidence in the proceedings concerning AM's application for a passport and whether any queries had been made as to the phone network for the 235 number. In my judgment, however, these failures did not render this trial unfair or constitute a breach of Article 6. As for the 235 telephone network, whilst it might have led to a train of inquiry about the use made of the 235 number, the nub of the case against AM was that he did use the 235 number, contrary to his denials, and he did use it for terrorism related activities. Even if someone else might have used it, given that I am satisfied that there is an overwhelming case that AM used it for such purposes and that this gives rise to a reasonable suspicion of his involvement in terrorist related activities, in my judgment therefore, neither of these failures has made this trial unfair nor resulted in a breach of Article 6.
- It has been repeatedly stated explicitly, that none of the material, whether open or closed, relied upon against AM is in any way the product of material obtained by torture. However in OPEN the witnesses for the SSHD neither confirmed nor denied whether any material obtained from either Rashid Rauf or Faraj Al Libi, whilst they were detained in Pakistan was relied upon. I have checked through all the material both open and closed which has been placed before the court and have satisfied myself that there is no material obtained by torture which is used to support the core case against AM.
- My conclusions on the issues of principle are that there are and were reasonable grounds for suspecting that AM has been involved in terrorism related activity, and that it was and remains necessary to protect members of the public form the risk of terrorism to make a control order. The level of terrorist activity is extremely high. He was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed.
- Given that, in my judgement, there is overwhelming evidence for reasonable grounds for suspecting that AM has been involved in terrorism related activity, would continue to be so if given the opportunity, and that it is necessary to make a control order for the purpose of protecting members of the public form a risk terrorism, I have to consider and decide, giving due deference to the assessments of SSHD and security services, what particular obligations are necessary for those purposes. In so doing, I am, of course, aware that the obligations under the order, prima facie, infringe AM's fundamental human rights and in considering whether, notwithstanding those infringements, the obligations would not constitute a breach of those rights, I must approach the matter in the way described by Lord Steyn in R (Daly) v SSHD 2001 UKHL 26 at para 27:
- The legislative objective of protecting members of the public from a risk of terrorism from a person of whom there are reasonable grounds to suspect that he has been involved in terrorism related activity and that a control order is necessary, in my judgment is sufficiently important to justify limiting his fundamental rights. Furthermore, in my judgment, the various measures which comprise the obligations in the control order, from time to time, have each been designed to meet that legislative objective and were rationally connected to it. The question for me is to determine which measures amount to no more of an impairment of his rights of freedom than is necessary to accomplish the objective.
- In conducting this last exercise, I have not considered material which has neither been disclosed to AM nor has been the subject of, or supportive of, allegations which have not been disclosed to AM sufficiently to enable him to give instructions to the special advocates to conduct his case.
- At the heart of my consideration must, in my judgment, be my assessment of the seriousness of the risk posed by AM, in the past and in the future, the degree of firmness with which those reasonable suspicions may properly be held and the particular purposes which the obligations are designed to achieve.
- In my judgment, having reviewed the evidence and having had an opportunity to assess AM, the level of seriousness of the risk he poses is very high. In my judgment there is overwhelming evidence that he was a person prepared to martyr himself and, in so doing, to kill large numbers of other people. In his dealings with the SSHD and the court, in my judgment, by his denial of any past involvement in terrorist related activity and of any intent so to be involved in the future, he has repeatedly, systematically and carefully lied. It is my judgment that he is an intelligent, capable, well trained, individual who remains committed to terrorist activity. His past involvement has involved the use of electronic communication including by mobile telephone. The fact that, save for two matters, there are no open allegations of breach by him of the terms of the control orders does not, in the light of the foregoing, persuade me that he is a person for whom a light touch series of obligations is remotely appropriate. In my judgment the SSHD was entitled to impose more onerous obligations than were initially imposed.
- I now consider particular obligations against the criterion of whether their impact on his rights and freedom are no more than necessary to accomplish the objective.
- The current curfew is between midnight and 8am. For the reasons already stated, in my judgment, a period of curfew longer than the initial 3 hours imposed was necessary, and has remained necessary, and I do not propose to interfere with it.
- As for the extension to 2am once a week, I take the point made by AM that this extension does not enable him, in practical terms, to conduct the activity for which it was given and that, unless the extension is to 4am, it is pointless. On the other hand, I note that he has not sought to take advantage of the 2am extended curfew; and the evidence of AP, with whom AM would wish to conduct this social activity, that, prior to the control order, they only visited a nightclub once every two months or so. In my judgment, this exception to the curfew should be varied so that it extends to 4am but only once every four weeks. That will more closely tailor it to the activity for which it is said the extension is required and to the frequency with which he has engaged in the activity in the… past.
- The purpose of the current obligations is to ensure that the Security Servic can identify the individuals whom he seeks to have visit him at his residence so that the Home Office may give or withhold its prior agreement. In September 2008, Collins J varied the then existing obligation so that AM should, within 24 hours after any visit, supply the Home Office with the name, address, date and place of birth of that person and details of when he entered and left. The extract from his judgment in the open summary appears to indicate that Collins J was under the impression that the Secretary of State was content for such a, post visit, notification to occur. It is not clear to me whether that was a mistake on his part, or SSHD has subsequently changed his stance, but it appears that Collins J did not apply his mind to whether prior, or post, notification was necessary in the context where that matter was in dispute. It now is and I have to determine it.
- In my judgment, it is necessary for the purpose of controlling and monitoring AM for the Home Office to know in advance whom he wants to visit his residence so that the Home office may consider whether or not to give approval. Once approval has been given, and subject to its withdrawal at any time, that person may be free to visit AM at his residence without any specific notification. In my judgment, if the obligation is for the purpose of enabling the Home Office to decide whether or not to agree to a specific individual being allowed to visit AM at his residence, that process requires the request to be made in advance. At that stage it is a matter for AM to provide SSHD with whatever information is required to enable him to make that judgment. It is therefore, not strictly necessary for the control order to be prescriptive about the information to be supplied whether it be name, address, date of birth, photographic identification. If the Home Office is not satisfied on the information provided by AM that it has sufficient information to enable it to identify the proposed visitor, so as to decide whether or not to approve, and, thereafter, sufficient information to be able to monitor whether visitors are limited to those for whom prior approval has been given, then it will not give its prior approval. It is to be observed that obligation 5 does not include any prescriptive list of information to be given before prior agreement may be given. I can see no good reason why obligation 4 should operate in any different way. Accordingly, in my judgment, clause 4(1)(f) of the current control order should remain. The first sentence of clause 4(2) should be deleted and replaced with the following:
- I have had regard to the interest of AM in not having the fact of his being subject to a control order known beyond whom he wishes to inform. I appreciated that the judgment of Ousely J in Times Newspapers Ltd v SSHD 2008 EWHC 2455 (admin) concerned anonymity in the context of publication in the mass media. Nonetheless, the concerns which the judge expressed may just as easily arise within a locality, through rumour based on disclosure to a limited number of people of his status. Accordingly, in my judgment this is a matter properly to be considered and weighed. In that respect it would be surprising were the Home Office to be able reasonably to require AM to supply photographic identification of any such person in most cases. If the Home Office were able to identify who the person was by information given by AM, then they would themselves be able to make such arrangements as would enable them to monitor whether persons visiting AM were other than individuals for whom prior approval had been given.
- The present obligations are contained in paragraph 5. In my judgment, that represents no more of an imposition than is necessary for the purposes of protecting the public. The obligations themselves impose no requirement on AM to supply any particular type of information. It appears that this is dealt with in correspondence. It my judgement it is up to AM to provide such information as the Home office reasonably requires to enable the Home Office to identify those whom it is asked to agree that AM may meet by prior arrangement. The level of information required may vary from individual to individual.
- Obligation 15 prohibits AM from entering his family residence save for up to two occasions a week of which prior written notification is given, and on the basis of undertakings by his family to turn off mobile phones and computers when he visits. In my judgement, given that he has, in the past, used mobile telephones for purposes of conducting terrorist related activities this limitation is necessary. Furthermore, one of the open alleged breaches of the obligations concerned an attempt by his family to have the hard drive of their computer changed so as to prevent the material on it being accessed by the Security Service in the light of the undertakings that they have given. I note that AM's evidence is that this was to protect sensitive family private material, not material of an extremist nature. But, in the context of this case, in my judgment, those undertakings remain necessary in order to preclude giving AM the opportunity to use the internet, at least when he is in his parent's home. In my judgement, the limitations placed in his ability to visit his parents home are not disproportionate and are necessary. Accordingly, I do not propose to change obligation 15.
- In the course of the hearing, SSHD indicated that he was going to refuse a request that AM's residence be changed so that it could be closer to his parents' home address. Presently it is a 25 minute walk away, or a 10 minute drive. On any view, that is not far, and the level of inconvenience created by this is relatively insignificant. In my judgement, it is necessary for there to be some distance between AM's residence and his parents' home. There is no absolute rule about this. I am not aware whether a specific proposal was being put so as to be able to judge whether as a matter of fact and degree any new residence would be at sufficient distance. I, therefore, do not propose to deal with this matter beyond that level of generality.
- Obligation 7 concerns access to the internet and the use of mobile phones. The core obligations prohibit AM from using, or having, whether in or outside his residence, or bringing or permitting into his residence, without prior permission of the Home Office, any fixed line telephone or mobile telephone, save for one fixed line telephone and one mobile telephone, not capable of connecting to the internet, and one sim card. Obligation 7.2. permits him to allow a third party to bring a mobile phone, sim card or pager into his residence whilst he is there, provided it is switched off and not used whilst he is in residence and provided the third party agrees to make the device available for inspection. It is said by AM that the requirement that visitors to his home must switch off their mobile phones is impracticable to enforce, constitutes overkill and prevents him having any visitor to his residence without having to inform them that he is subject to a control order.
- In my judgment, there is much in this argument. Although the control order and its obligations is for the purpose of disrupting and controlling terrorist related activities, it also has the function of enabling AM to move beyond such activities by enabling him to have as near to a normal life as is possible. Given that the only visitors to his residence can be those for whom prior approval has been given, in my judgment it goes beyond what is necessary, to require those persons to switch their phone off and to agree to deliver them up to a person authorised by the Secretary of State for inspection. That would be impossible to achieve without AM telling them about the control order and would positively get in the way of enabling him to have friends not involved in terrorist activity. Accordingly, I would delete from obligation 7.2 the passage which runs "if the devices…obligation 7.3 below".
- Obligation 11 prohibits AM from associating or communicating directly or indirectly with, amongst others, Y. He is a long standing friend who has known AM since they were at primary school. This prohibition was imposed in June 2008, based in a security service assessment that their association posed a significant risk to national security and that it was necessary to prevent AM from associating with him in order to reduce the risk he poses. Beyond that there is nothing in the material to which I am entitled to have regard to support a specific prohibition such as is set out in obligation 11.
- In terms of general obligations, AM requires the prior approval of the Home Office for anyone to visit his home or to meet them by prior arrangement. His only permitted use of mobile phone or land line phone require full details of those phones to be given as well as full access to SSHD or his nominee. Accordingly, without obligation 11, SSHD has the means of prohibiting AM and Y meeting either at AM's residence or anywhere else by prior arrangement. Furthermore, he is not permitted access to the internet in his residence or at his parent's home. In my judgment, therefore, the specific prohibition in relation to Y, set out in obligation 11, is not necessary on the material to which I am entitled to have regard and, accordingly, I agree that his name should be deleted from obligation 11.
- Presently, the X Box games console is with his family and AM is not permitted to use it. This is because it is capable, with additional equipment, of being connected to the internet. It is said that the Police were aware of the fact that he had an X Box at his residence for several weeks before it was removed and that there was no means there of connecting it to the internet. Having it at his residence was, on the face of it, a breach of obligation 7(1)(a), which requires prior permission of the Home Office for AM to have at his residence any equipment capable of connecting to the internet, directly or indirectly. It is suggested that there should be an exception to this obligation to permit him to have at his residence a games console for use solely for playing computer games only for as long as he has no means of connecting it to the internet, and does not do so. In my judgment, subject to those restrictions, it is not necessary to prohibit him from having an X Box games console at his home for the purpose solely of using it to play such games and, accordingly, I agree that an appropriately worded exception be included in obligation 7.
Mr Justice Wilkie:
Introduction:
The legislative scheme of the PTA:
"An act to provide for the making against individuals involved in terrorism related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity…".
"An order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism".
"The power to make a control order against an individual shall be exercisable -
a) Except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention by the Secretary of State".
Accordingly, an order made by the SSHD is a "non derogating" control order (see section 2(3) of the PTA.
"…may make a control order against an individual if he –
a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."
"A non derogating control order -
a) has effect for a period of twelve months beginning with the day on which it is made; but
b) may be renewed on one or more occasions in accordance with this section".
"A non derogating control order must specify when the period for which it is to have effect will end".
"The Secretary of State may renew a non derogating control order (with or without modifications) for a period of twelve months if he -
a) considers that it is necessary for the purposes connected with protecting members of the public from a risk of terrorism for an order imposing obligations on the controlled person to continue in force; and
b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism related activity."
"The Secretary of State must not make a non derogating control order against an individual except where –
a) having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order, and has been granted that permission;
b) The order contains a statement by the Secretary of State that, in his opinion, the urgency of the case requires the order to be made without such permission."
2. Where the Secretary of State makes an application for permission to make a non derogating control order against an individual, the application must set out the order for which he seeks permission and –
a) The function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed;
b) The court may give that permission unless it determines that the decision is obviously flawed; and
c) If it gives permission the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made."
"On a hearing in pursuance of directions under subsection (2) (c)… the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –
a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and
b) his decisions on the imposition of each of the obligations imposed by the order."
"In determining –
a) what constitutes a flawed decision for the purposes of subsection (2)… or
(b) the matters mentioned in subsection (10),
The court must apply the principles applicable on an application for judicial review."
"If the court determines on a hearing in pursuance of directions under subsection (2) (c)… that a decision of the Secretary of State was flawed its only powers are –
a) the power to quash the order
b) the power to quash one or more obligations imposed by the order and
c) The power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes."
"In every other case the court must decide that the control order is to continue in force."
"44…a purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed…
46. For these reasons we consider that section 3(10) can and should be "read down on" so as to require the court to consider whether the decisions of the Secretary of State in relation to the control order are flawed as at the time of the court's determination".
"60. 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 acts 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. Thus far we accept Mr Starmer's submission as to the standard of the review that must be carried out by the court.
61. Somewhat different considerations apply in respect of the second element of the Secretary of State's decision. Section 3(10) requires the court to review the decision of the Secretary of State that it was necessary, for purposes connected with protecting the public form a risk of terrorism, to make the control order. The court is further required to consider his decision on each one of the obligations.
…
63. Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. 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 on 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 of the resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance.
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 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 record such difference 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; SSHD v Rehman [2003] 1 AC 153, Ireland v United Kingdom [1978] 2 EHRR 25.
65. Notwithstanding such difference 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 is something in common with the familiar one fixing conditions in 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 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."
Reasonable suspicion:
"…The PTA authorises the imposition of obligations where there are reasonable grounds of suspicion. The issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may have involved 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 to 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 exists that has to be fair if article 6 is to be satisfied."
"…In part it is a subjective test because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed.
…
The question is whether a reasonable man would be of that opinion having regard to the information which was in the mind of the arresting officer."
Necessary:
"I. the legislative objective is sufficiently important to justify limiting of a fundamental right;
II. the measures designed to meet the legislative objective are rationally connected to it; and
III. the means used to impair the right of freedom are no more than is necessary to accomplish the objective."
(De Freitas v Permanent Secretary of Ministry of Fisheries Land and Housing [1999] 1 AC 69 at 80).
Disclosure:
"2. Rules of Court made in exercise of the relevant powers may also, in particular-
a) make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one)".
"Rules of court made in exercise of the relevant powers must secure…
d) that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material will be contrary to public interest".
" Part 76.1 (4)…for the purposes of this part, disclosure is contrary to the public interest if it is make contrary to the interest of national security…or in any other circumstances where disclosure is likely to harm the public interest."
"The court must ensure that information is not disclosed contrary to the public interest".
"Where the court has not given permission to the Secretary of State to withhold closed material from, or has directed the Secretary of State to serve a summary of that material on, a relevant party or his legal representative –
a) the Secretary of State shall not be required to serve that material or summary; but
b) if he does not do so, at a hearing on notice, the court may –
(i) If it considers that the material or anything that is required to be summarised might be of assistance to the relevant party in relation to a matter under consideration by the court, direct that the matter be withdrawn from its consideration, and
(ii) In any other case, direct that the Secretary of State shall not rely in the proceedings on that material or (as the case may be) on what is required to be summarised."
"The court must give permission to the Secretary of State to withhold closed material where it considers that the disclosure of that material would be contrary to public interest."
"I am satisfied that the essence of the Grand Chamber's decision lies in paragraph 220 and, in particular, in the last sentence of that paragraph. This establishes that the controllee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controllee is not provided with the detail of the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions, and the case of the controllee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied however cogent the case based on the closed material may be."
Procedural history:
The open case of the SSHD:
The first security service submission to the Home Secretary:
"[AM] is a British national of Indian origin. The Security Service assesses that [AM] has been involved in terrorism related activity in the UK and may attempt in the future to travel abroad with the intention of participating in further terrorism related activity and possible terrorist training. The Security Services are therefore applying for a control order against [AM] in order to restrict his overseas travel in an effort to reduce the risk he is assessed to pose to national security."
"Between the 8th and 10th August 2006 one individual in Pakistan and 24 individual in the UK were arrested for their assessed involvement in a significant plot to mount multiple attacks on transatlantic planes travelling form the UK to a number of US destinations (referred to as the transatlantic airline plot). Of those individuals arrested in the UK, 17 were subsequently charged. [AM] came to the attention of the Security Service as an associate of this cell".
"[AM]'s involvement in the transatlantic airline plot:
12. The Security Service assesses that [AM] was involved in the transatlantic airlines plot.
…
The transatlantic airlines plot was an Al Qaeda conspiracy which aimed to bring down several aircraft over the Atlantic Ocean by detonating improvised explosive devices (IED's) disguised as soft drinks bottles smuggled on board aircraft. It was disrupted by UK and Pakistani law enforcement agencies in August 2006."
"…the Security Service further assesses that [AM] was involved with some of the plotters from late 2005.
13. Rashid Rauf was a key figure involved in the transatlantic airlines plot. He was in contact with a senior Al Qaeda commander known as Abu Ubaydah Al Masri, also known as Abu Obaidah Al Masri (who was a senior AQ commander in Kunar province, Afghanistan). Ubaydah was close to the rank of Abu Faraq Al Libbi who was previously AQ's director of operations. Ubaydah is believed to be the senior operational planner of the transatlantic airlines plot.
14. The Security Service assesses that [AM] was in contact with Rauf and possibly Ubaydah. Furthermore the security Service assesses that [AM] may have met both of them during his trips to Pakistan in 2004 and 2005. The Security Service also assesses that [AM] may only have known Rauf by an alias and not by his real name."
"Extension of AM's curfew
17. AM's original curfew was form 0200hrs to 0500hrs. His curfew was extended form three hours to eight hours to run from 2300 to 0700 hours. The Security Service assessed that the risk posed by AM was not being sufficiently managed by his original curfew. The Security Service assesses that extending the curfew will provide a greater degree of control over AM's movements.
Prevention of AM entering his parents' property.
18. It is necessary to prevent AM from entering his parents' property a for reasons of national security.
… ."
The Sixth statement on behalf of the Secretary of State was made in March 2009 and is made on terms that it is only appropriate for it to be addressed in camera.
"28. The Security Service assesses that AM was waiting for operational tasking in relation to an unspecified attack against US/UK targets after he returned from Pakistan in December 2005.
29. The Security Services assess that this operational tasking was to have been provided by AY, and that the purpose of AY's contact with AM was to organise travel to the northwest of England and brief AM on his role in the plot, instruct him in the construction of IED's and record a martyrdom video that would have been forwarded to Al Qaeda in Pakistan for transmission after the planned attacks.
30. Further, the Security Service assess that despite AM's immediate intentions being disrupted by AY's arrest, he remained willing to conduct an attack. This assessment is based on AM's subsequent engagement with individuals who were involved with AQ.
31. The Security Service continues to assess that if AM were not subject to a control order, he would pose a serious risk to the national security of the UK given his involvement with the transatlantic airlines plot and the training he is assessed to have received in Pakistan."
AM's evidence:
The airline plot:
Alleged approaches by security services.
Religious and political views:
AM's third statement:
AM's fourth statement :
AM's fifth statement:
AM's sixth statement:
AM's seventh statement:
AM's eighth statement:
AM's ninth statement:
The open/in camera evidence called by the SSHD:
Witness V
The open/in camera evidence of witness V
Susan Hadland:
The closed case:
My approach to the closed case:
The parties' submissions:
AM's open submissions:
a. The open and in camera evidence is insufficient to warrant such a conclusion;
b. In so far as the closed evidence is not in the form of best evidence, the court should not rely on it;
c. The Secretary of State has failed to pursue lines of enquiry which might point towards AM's innocence;
d. The court cannot find that the maintenance of a control order upon AM is now necessary given the passage of time;
e. The absence of any open allegation of significant breach;
f. The comments made in the alleged Security Service approaches in 2007 and 2009; and
g. The evidence that AM is moving on by gaining a place at university.
a. The failure of SSHD to consider relevant matters;
b. Improper delegation of statutory functions to the Security Service;
c. The use of the power to impose a control order to further an ulterior purpose of the Security Service, which infected the SSHD's decision.
a. The extended curfew imposed in December 2007;
b. Exclusion from the parental home imposed in December 2007;
c. The refusal to permit AM to move closer to his parental home;
d. The imposition of meeting and visitor restrictions in June 2008, including in relation to Y;
e. The restriction in relation to mobile telephones of visitors;
f. The limitation of AM's weekly extended curfew to 2am as opposed to 4am;
g. The prohibition on AM having his Xbox games console.
a. There has been improper delegation of decisions on disclosure to security service;
b. There has been inappropriate invocation of class claims to non disclosure;
c. There are documents over which no proper public interest can now be claimed or where article 6 now requires disclosure to allow AM effectively to challenge to obligations.
AM's in camera submissions:
AM's open submissions on particular obligations:
Meetings with friends/visitors to residence:
a. That, in the case of prior authorisation, for meetings outside residence, he should be required to supply only such information about a person's address as he knows;
b. There should be no prior notification requirement for visitors to his home. It is impracticable if someone calls on AM or has a friend with them;
c. Notification of information about visitors to his residence should be on the same basis as for prearranged meetings outside; and
d. The reintroduction of prior notification for visitors to his home and requirements relating to their IDs represents an abuse of process.
AM's family:
Visitors' mobile phones:
Relaxation of Curfew:
Y:
The X Box:
The special advocates' closed submissions on behalf of AM:
Variation of control order obligations:
The SSHD's open submissions:
Reasonable grounds for suspicion:
Alleged Security Service approaches:
Ulterior purpose:
Alleged improper delegation:
Necessity for the control order:
Individual obligations:
a. To disrupt his involvement in that activity;
b. To minimise his opportunities for reengagement in that activity;
c. To monitor his on going activities.
a. He has been able to engage in a number of difference jobs;
b. His current curfew of 8 hours allows him to leave his residence during the evening and engage in social time after work;
c. He is able to go to a place of licensed entertainment one night a week until 2am;
d. He lives within 10 minutes drive of his family;
e. He is not subject to any geographical boundary which limits his movements whilst within the UK.
Thus he is allowed a significant amount of freedom in his ability to go about his day to day activities.
Anonymity:
"The obligations imposed by the control order should at least try to prevent the controlled person from being forced to disclose that he is the subject of a control order or to act in such a way that his status as someone who is subject to a control order might become known. There may be some cases in which that is impossible to achieve but all reasonable attempts to achieve it should nevertheless be considered."
It is that approach which SSHD invites me to adopt.
Visits to the family home:
Visitor approval/prearranged meetings:
Curfew:
Article 6:
Secretary of State's closed submissions:
The Secretary of State made submissions on the closed material.
Discussion and conclusions:
Introduction:
Approach to the evidence:
My conclusions on risk and the necessity for a control order:
Ulterior purpose:
Disclosure:
The use of material derived from torture:
Conclusions:
The particular obligations:
My general approach and general conclusions:
"Whether (i) the legislative object is sufficiently important to justify limiting a fundamental right (ii) the measures designed to meet the legislative objective are rationally connected to it, and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
Particular obligations:
The curfew:
Visitors to his residence:
"The Home Office may require you to supply such information about any such individual, as it may reasonably require, to enable any such individual to be identified both for the purpose of giving or withholding approval and for the purpose of monitoring compliance with this obligation".
Meetings with friends outside his residence:
AM's family:
Y:
The X Box: