QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION PURSUANT
TO THE PREVENTION OF TERRORISM ACT 2005
Strand, London, WC2A 2LL
B e f o r e :
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
(instructed by THE TREASURY SOLICITOR) for the Applicant
(1) MR TIMOTHY OWEN QC & MR EDWARD GRIEVES
(instructed by TRP SOLICITORS) for the Respondent
MISS JUDITH FARBEY & MISS SHAHEEN RAHMAN
(instructed by THE TREASURY SOLICITOR SPECIAL
ADVOCATE SUPPORT OFFICE) as Special Advocates
(2) MR TIMOTHY OWEN QC & MR HUGH SOUTHEY
(instructed by TRP SOLICITORS) for the Respondent
MR MARTIN CHAMBERLAIN & MISS CATHRYN McGAHEY
(instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
Hearing dates: 10th, 11th, 12th, 13th,16th, 17th, 18th & 19th February 2009
Crown Copyright ©
MR JUSTICE MITTING :
The Libyan Islamic Fighting Group (LIFG)
The principal issues
i) The decision to make the order:a) did the material provided to the Secretary of State adequately set out the matters or considerations which might affect her decision to make, or not to make, the order which she made?b) if not, was her decision flawed?c) if so, should it be quashed?
ii) Procedure: have AT and AW been afforded at least the minimum requirements of procedural fairness to which they are entitled in these proceedings?
iii) Necessity: is the Secretary of State's decision that the making and continuance in force of the control orders is necessary for purposes connected with protecting members of the public from a risk of terrorism, flawed?
iv) Modification: is the decision of the Secretary of State that the obligations challenged continue to be necessary for that purpose, flawed?
There are ancillary and subsidiary issues which I will deal with under the appropriate head. There is no challenge to the Secretary of State's determination that she had and has reasonable grounds for suspecting both AT and AW to have been involved in terrorism related activity: it is established by their conviction of an offence contrary to section 17 of the Terrorism Act 2000.
The Secretary of State's case on the substantive issue
i) within and associated with the LIFG are people who may wish to continue the armed struggle or jihad in Libya and elsewhere;
ii) as their activities in and before January 2004 demonstrate, AT and AW have the skills, knowledge and contacts which, if put at the service of such people, would be of assistance to them;
iii) neither AT nor AW have demonstrated that they are not willing to do so.
(I have re-phrased and simplified Mr Tam's exact words in the interests of clarity. I do not believe that I have altered or misunderstood their sense).
i) AT was and is a significant and influential member of the LIFG;
ii) AT has supported terrorist networks by providing a variety of false documentation including passports and identity documents;
iii) AT has supported LIFG activities by the transfer of funds;
iv) AT espouses violent Islamist views, as is demonstrated by the material seized at his home in October 2005;
v) the three propositions summarised above.
i) AW was and is a prominent member of the LIFG;
ii) AW was and is a facilitator for the LIFG, specializing in the production and provision of false documents to overseas LIFG members;
iii) AW was and is a facilitator for the LIFG specializing in the provision of funds to overseas LIFG members;
iv) the three propositions summarised above.
The decision to make the order – AW
"In December 2005 (AW) was charged with the offence that between 1st January 2004 and 4th October 2005 he conspired together with (AU) (AT) and others to provide money or other property knowing or having reasonable cause to suspect that it may be used for the purposes of terrorism contrary to section 1(1) of the Criminal Law Act 1977 (CLA). The additional charge of "entering into or being concerned with an arrangement to make property available to another, contrary to section 17 of the Terrorism Act 2000" was added to (AW's) indictment prior to his criminal trial. In an indicative hearing on 11th June 2007 (AW) pleaded guilty to the latter offence and was sentenced to 22 month's imprisonment. The CLA offence was left on file…".
Paragraph 12 deals with AW's association with AU stating, correctly, that his e-mail address was found on a piece of paper during searches of AU's property in 2002, that AU's fingerprints were found on every page of a ledger discovered during searches of AW's house in January 2004 and that AU had visited AW whilst he was in prison. Paragraph 23 recorded, again correctly, that five of AW's fingerprints were found on the ledger and asserted the Security Service's reasonable assessment that it was likely that the money transfers recorded in it were destined for LIFG members and/or their families. Paragraph 24 repeats, in summary form, the statements about the criminal proceedings which began with the conspiracy charge in December 2005.
"(AW) is a facilitator for the LIFG and is involved in the illegal production and provision of false documents to LIFG members, and has been successfully prosecuted in the UK for offences relating to these activities. Additionally, (AW) is involved in sending funds to overseas LIFG members and has pleaded guilty to a TACT offence."
"2(1) The Secretary of State may make a control order against an individual if he –
a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.
3(10) On a hearing in pursuance of directions under sub-section (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.
(11) In determining –
c) the matters mentioned in sub-section (10),
the Court must apply the principles applicable on an application for judicial review.
(12) If the Court determines on a hearing in pursuance of directions under sub-section (2)(c)…that a decision of the Secretary of State was flawed, its only powers are -
a) power to quash the order;
b) power to quash one or more of the obligations imposed by the order; and
c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes."
"A minister who reserves a decision to himself… must know or be told enough to ensure that nothing that it is necessary, because legally relevant, for him to know is left out of account"
per Sedley LJ at para. 62.
Implicit in this statement is the further proposition that the minister must not be given information which is misleading in one or more respects which are critical to his decision. It is always possible for the minister to put in evidence that he was not misled and took the decision on a proper factual basis; but in the absence of such evidence, the reasonable and sufficient inference will be drawn that the decision was made on a basis that was materially erroneous. I gave to the Secretary of State the opportunity to put in evidence in written form, to displace that inference. Since the hearing, I have received a letter from the Treasury Solicitor of 27th February 2009 which makes it clear that there is no such evidence. I therefore draw the inference that the Secretary of State did make her decision on a materially erroneous basis.
"The Security Service assesses that should (AW) be given further time outside of his residence it would increase the chance of him re-engaging in LIFG activity. This assessment is backed up by his previous re-engagement in terrorism-related activity following a custodial sentence. On 8th January 2004, (AW) was arrested for forgery, conspiracy and possession of CS gas. After serving 1 ˝ years of his 3 ˝ year sentence (AW) was released in July 2005. Despite spending time in prison for his terrorism-related activities, (AW) re-engaged in his previous activities and was arrested again in December 2005. This resulted in him pleading guilty to the charge of "entering into or being concerned with an arrangement to make property available to another, contrary to section 17 of the Terrorism Act 2000" for which he was sentenced to 22 months in prison. The Security Service assesses that this re-engagement shows (AW's) commitment to terrorist-related activity. It is further assessed that should (AW's) non-curfew hours be extended, he may once again attempt to re-engage."
Miss Hadland, who chairs the Control Order Review Group, believes that the natural reading of paragraph 8 of the Security Service submission was that AW had committed a separate and second offence and did not realise the mistake in the section 10(3) statement until a week or two before the hearing.
The decision to make the Order – AT
"(AT) has provided support to terrorist networks overseas. His activities on behalf of these groups have involved the provision of false documentation. It is assessed that (AT) continues to pose a risk to national security".
The detailed case refers only to past events and does not assert that it provides evidence that AT "is" a manufacturer and supplier of false documentation. The language of the assessment in paragraph 18 is accurate: "(AT) is a member of the LIFG, who has been involved in the provision of forged passports and false passports…", as is that of paragraph 24 justifying the curfew and related obligations, "he has created and supplied false documents". Nothing in the first open statement could lead the reader to conclude that AT had resumed the supply of false documentation or funds with AU or otherwise after 8th January 2004. The information provided about AT's activities in the submission to the Secretary of State was accurate and, for the reasons explained, not misleading. I am satisfied that the Secretary of State's decision to make the order in the terms which she did was not, in the case of AT and for that reason, flawed.
Procedure - AT
i) he admits that he was a member of the LIFG, but denies that he has played any part in its activities since 8th January 2004, because, from that time onwards, he has been in detention or under constraints imposed by the home detention curfew regime, SIAC bail and this control order and because the LIFG was "finished" as an organisation when its top leadership (Sadeq and Mundhir) were arrested and deported to Libya in March 2004.
ii) he admits participating in the distribution of false documentation, but denies that he thereby supported terrorist networks.
iii) his case on funding is inconsistent. It was submitted on his behalf at the hearing at which he was sentenced for forgery and counterfeiting offences that he was "particularly concerned with raising funds", in particular for the families of those who are imprisoned in Libya or who have died there and was sentenced on that basis by MacKay J for the terrorism-related offence on 11th June 2007. In evidence, he said that he was only the book-keeper and had never transferred anything, even after AU's arrest on 21st November 2002.
iv) he denies that he has ever held or espoused violent Islamist views. He said in evidence that the footage of the killing of Russian soldiers and of hostages seized at this house was not his and asserts that they were left there by a named person (whose identity is stated in the closed judgment) in November or December 2003.
v) for reasons which are apparent from his case on the specific issues referred to above, he refutes the three propositions upon which the Secretary of State's case is based.
i) I remain of the opinion that the LIFG remains in being, although its cohesion and effectiveness have been much reduced, for the reasons set out in the open and closed generic judgments. I am satisfied, on balance of probabilities, that AT was and remains a significant member of the LIFG, with the potential to exercise influence over its members and associates if not subject to obligations imposed by a control order. I reject his claim to have had nothing to do with the organisation since 8th January 2004.
ii) I am satisfied on balance of probabilities that AT's admitted participation in the provision of false documentation was for a terrorism-related purpose: the support of the activities of the LIFG in the United Kingdom and overseas.
iii) I am satisfied on balance of probabilities that AT has supported LIFG activities by the transfer of funds. I reject as untrue his claim that he was only the book-keeper – a claim which is inconsistent with the mitigation advanced on his behalf in the first criminal proceedings.
iv) I am satisfied to the criminal standard that AT has lied to me about the footage of atrocities seized at house. Some, at least, of the footage was not in existence at the time when he says it was left with him. Some of it depicts the murder of the hostage Paul Johnson. His beheaded corpse was found near Riyadh on, or shortly before, 18th June 2004, following the release of a video showing him alive on or shortly before 16th June 2004. The police searched AT's home (at different addresses) on only two occasions: 8th January 2004 and 3rd October 2005. This footage must have been seized on the latter date. I am also satisfied, to the criminal standard, that the individual named by AT did not leave the footage with him. That individual had long since ceased to belong to the LIFG and, as published interviews with him since have made clear, did not espouse pan-Islamist views or barbarous conduct of the kind depicted in the footage. I do not claim to know why AT lied about these issues; but the lies are deeply troubling and are capable of supporting the cautious conclusion of the Security Service expressed in paragraph 7 of the third open statement that "(AT) does not necessarily object to the global Islamist agenda espoused by AQ and the wider Islamist extremist community." The finding of the material and the lies told about it go a long way to supporting the third of the propositions advanced by Mr Tam, summarised in paragraph 6 above.
v) I am satisfied that Mr Tam's three propositions are factually sound.
I have reached these conclusions on both the open and closed material. In relation to some of the issues, my conclusions are more fully set out the closed judgment.
"It shall be immaterial for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State's grounds for suspicion relate".
This provision reinforces the cautionary words of the Court of Appeal in MB in paragraphs 63 and 64 that the Secretary of State is better placed than the Court to decide the measures necessary to protect the public against the activities of a terrorist suspect. These words apply both to the need for the order and to its individual obligations. I have found, accepting the views of the Security Service, that the LIFG is currently in a state of flux. They are better placed than I could be to determine, as circumstances evolve, what can be done to minimise the risk to the public – by encouraging those elements within the LIFG which are amenable to a peaceful settlement with the Libyan government and inhibiting the activities of those who are not, in particular those who support the "merger" with AQ. When dealing as they are in the case of AT, with a significant and influential member of the LIFG whose activities in the past have furthered its ends, who has the capacity to re-engage and whose views are suspect and clouded by lies told by him, the Security Service and so the Secretary of State are entitled to be cautious. On the basis of the first sentence of paragraph 6 of my Judgment in AU  EWHC 49 (Admin) Mr Owen submits that it must be proved that AT has a present intention to re-engage or, at least, that there is reasonable ground to suspect that he intends to do so; and that such an intention can only be inferred from post-release acts. Otherwise, he asks rhetorically: how can AT ever establish that he does not pose a risk to the public? His submission mis-states what I accepted in AU which was: "where the only information known about an individual is a set of facts which justifies, and results in, a successful prosecution for a terrorism-related offence and there is no reason to believe that the individual has undertaken any other terrorism-related activity or will do so after he has served the sentenced imposed for the crime, it would not thereafter be necessary to impose a control order upon him." The second circumstance does obtain here: for the reasons explained, there was and is, currently, reason to believe that AT will undertake terrorism-related activity unless inhibited by a control order. It is pointless now, to speculate on when and by what means AT may demonstrate that he will not do so. If, as he contends, he has the settled intention not to re-engage, there will come a time when he can safely be taken at his word. That time has not yet arrived. Mr Owen also submits that there is a close parallel between the assessment of the risk posed by an individual subject to a control order and the statutory test considered by POAC in Lord Alton & Others PC/02/2006 30th November 2007 by which the Secretary of State could refuse to de-proscribe an organisation under section 3(3)(b) of the Terrorism Act 2000: was his belief that the organisation "is concerned in terrorism", flawed? I do not accept the validity of the analogy. There is a significant difference between making a decision about the future risk posed by an individual who has been involved in terrorism-related activity and about an organisation which "is" concerned in terrorism. The former concerns future risk and the latter the assessment of a current state of affairs. I do, however, acknowledge Lord Carlile's view that control orders should generally have a life of no more than two years and accept the submissions made by both open and closed advocates on behalf of AT that the periods during which he has been imprisoned and subject to restrictions imposed by home detention curfew, SIAC bail order and the control order should be taken into account; but I do not accept that the Secretary of State should, as a result, have decided not to impose a control order or to maintain it in force. The management of the risk posed by AT is a delicate and difficult task. The imposition of a control order was and remains a necessary and proportionate response to that risk, because it diminishes the risk that AT will re-engage in the affairs of the LIFG in a way which would assist those who wish to continue the armed struggle. That is a sufficient justification of the making and continuance of the order.
i) Curfew hours: he seeks a reduction in the curfew to six hours. The Secretary of State's objection to the reduction is based on the factors set out in paragraphs 15 – 18 of her section 10(3) response: that, by confining AT to his home for twelve hours each day, his ability to make and resume worthwhile contact with LIFG members and associates who pose a risk to public security is inhibited. As witness ZD and Miss Hadland explained, it is part of a package of measures which, taken together, diminish that risk. Giving to their view the deference which I should, I cannot say that her decision to maintain a curfew of this length is flawed. I do, however, note with approval Ms Hadland's acceptance of the proposition that an "exit strategy" is likely to involve, in appropriate circumstances, the loosening of obligations imposed on a controlled person by the order, in particular, the curfew. I do not understand that the acknowledgment that so-called "light touch" control orders have limitations (see paragraph 33 of Lord Carlile's fourth report) precludes such loosening. Circumstances may well arise in the not too distant future which will permit the reduction in the curfew imposed on AT to the number of hours sufficient to ensure that he resides and sleeps at his home.
ii) Prohibited contact: I do not regard the Secretary of State's view that the maintenance of the prohibition of contact with the individuals named in paragraph 21 of the section 10(3) response is flawed. It is necessary and proportionate to reduce the chance that any of them will re-engage in terrorism-related activity as a result of contact with AT.
iii) Visitors. The current obligation restricts the number of visitors to AT's home, while he is there, who are aged thirteen or over, to one. The purpose is to inhibit meetings with LIFG members and associates. That is a legitimate aim, which is served by the restriction. However, it is more stringent than is reasonably required. It prevents spouses, in particular parents of children who are friends of AT's children, from making social visits to AT and his wife. As far as I know, the Libyan nationals who are the objects of Security Service concern are all male. I can see no reason why the conditions should not be redrawn to permit visits by spouses visiting together. Because the precise wording of a relaxed condition needs careful consideration, I will adjourn final determination of this issue to permit paragraph 5 of the schedule to the order to be reconsidered. If agreement cannot be reached within 28 days of the handing down of this judgment, I invite written submissions within 7 days thereafter and will determine the precise wording myself.
iv) Boundary. The justification for the boundary is, in principle, the same as that for the curfew; and I do not hold it to be flawed for the same reasons. Again, this is one of the obligations which may, in due course, be capable of being relaxed.
v) Study. The obligation to seek notification and prior approval of any training or academic study course is necessary and proportionate for the reasons set out in paragraph 36 of the section 10(3) response: the Secretary of State is entitled to consider what can be done to reduce AT's opportunity to gain access to the internet while undertaking such a course.
Save to the extent indicated above, I am satisfied that the Secretary of State's decision to impose and maintain in force the challenged individual obligations of the order is not flawed.
Postscript – AW