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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 >> Sher & Ors v Chief Constable of Greater Manchester Police & Ors [2010] EWHC 1859 (Admin) (21 July 2010)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1859.html
Cite as: [2011] 2 All ER 364, [2010] EWHC 1859 (Admin), [2010] ACD 84
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
and
MR JUSTICE COULSON
____________________
| (1) SULTAN SHER (2) MOHAMMED UMER FAROOQ (3) MOHAMMED RIZWAN SHARIF |
Claimants |
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| - and - |
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| (1) THE CHIEF CONSTABLE OF GREATER MANCHESTER POLICE (2) THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE (3) THE CITY OF WESTMINSTER MAGISTRATES COURT (4) THE MANCHESTER MAGISTRATES COURT (5) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendants |
____________________
Mr Andrew Edis QC and Ms Anne Whyte QC (instructed by The Solicitors Depts of Greater Manchester and West Yorkshire Police) for the 1st and 2nd Defendants
Mr David Perry QC (instructed by The Treasury Solicitor) for the 5th Defendant
Hearing Date: 20th May 2010
____________________
Crown Copyright ©
- The three claimants are all nationals of Pakistan who came to the UK on student visas. On 8th April 2009, along with nine others, they were arrested under section 41 of the Terrorism Act 2000 ("the TA 2000") in various locations in the North West of England. The arrests were authorised by the first defendant ("GMP"). The claimants were then detained without charge by the second defendant ("WYP"). On the same day, search warrants were granted by the fourth defendant ("MMC") in respect of a number of addresses connected with the claimants. On 10th April 2009, an application for further detention was granted by the third defendant ("WMC") and an application to extend that detention was granted by WMC on 15th April 2009. The claimants were released without charge on 21st April 2009, and were served with deportation orders. In September 2009, all three claimants voluntarily returned to Pakistan.
- Prior to their departure, on 26th June 2009, the claimants instigated two separate sets of judicial review proceedings. The first, concerned with their challenge to the validity of the deportation orders, forms no part of the present dispute. Here, the claimants seek to challenge the legality of every aspect of their treatment between 8th and 21st April last year, from their original arrest and detention, through to the width of the search warrants and the conduct of the searches, and on to the decisions to extend their warrants of detention. The essential complaint that runs through their claims is the same: that they were never told the basis on which they were being detained in sufficient detail in order to allow them properly to challenge their continuing detention without charge. In addition, in connection with the decisions of WMC to extend the warrants on 10th and 15th April, the claimants seek relief against the fifth defendant ("SSHD") on the ground that the relevant parts of the TA 2000 are incompatible with the European Convention on Human Rights.
- The remedies sought by the claimants are extensive. They are set out in section 6 of the Claim Form in these terms:
- On 4th November 2009, Sir Michael Harrison adjourned the application for permission to bring judicial review proceedings to an oral hearing on notice to the defendants. He said that "an oral hearing is necessary, amongst other things, to determine whether judicial review is the appropriate remedy for any, and if so which, of the various issues raised in the claim form". Accordingly, this court is concerned with a debate about the appropriate forum for the claimants' claims, as well as whether or not the claimants have an arguable case for judicial review.
- I have found it convenient to divide up and deal with the various elements of the claimants' case in this way:
- The structure of this Judgment will be as follows. In Section B below, I outline the statutory framework under the TA 2000 (as amended by the Terrorism Act 2006), and summarise the recent decision of the House of Lords in which those provisions were considered. In Section C, I set out the relevant facts. Thereafter, at Section D, I deal with the claims arising out of the initial arrest and detention of the claimants and, at Section E, I consider the claims arising out of the search warrants and seizures. Then at Section F, I analyse the claim against SSHD in relation to the legality of the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act, and the related claims against WMC concerning the legality of the decisions that were made on 10th and 15th April 2009 to extend the claimants' detention. There is a short summary of my conclusions at Section G below.
- The claimants were arrested because they were suspected of being terrorists. Section 40(1) of the TA 2000 defines a terrorist, either as someone who has committed an offence under certain sections of the Act (s.40(1)(a)), or someone who "is or has been concerned in the commission, preparation or instigation of acts of terrorism" (s.40(1)(b)). S.40(1)(b) was the stated ground of arrest and detention in this case. Terrorism itself is defined in section 1of the TA 2000 (amended by the Counter-Terrorism Act 2008) in these terms:
- Section 41sets out the provisions relating to arrest without warrant. The provisions relevant to this case are as follows:
- Schedule 8, Part II of the Act sets out detailed provisions in relation to the detention of any person arrested under the Act. The parts relevant to the present case include:
- The relevant parts of the TA 2000 concerned with warrants of further detention are set out in Schedule 8, Part III. Paragraph 29 entitles a Crown Prosecutor or a police officer of at least the rank of Superintendent to apply to a judicial authority for the issue of a warrant for further detention. That warrant "shall authorise further detention under section 41 of the specified person for a specified period".
- Relevant provisions in Part III setting out the procedures in respect of such warrants include:
- Paragraph 36 of Schedule 8 Part III entitles a Crown Prosecutor or a police officer of at least a rank of Superintendent to apply for the extension or further extension of the periods specified in a warrant of further detention. The relevant parts of paragraph 36 are as follows:
- In short, a person arrested under the TA 2000 on suspicion of being a terrorist can be detained for 48 hours without charge, such detention to be the subject of periodic review by a senior officer. If the police wish to extend that period of detention without charge beyond the 48 hours, they must apply to the District Judge for a warrant of further detention. A period of detention can be extended by the District Judge for up to 7 days at any one time, but not for more than 14 days in total (calculated from the date of arrest). If the police wish to extend the period of total detention to more than 14 days, an application has to be made to a High Court Judge. The absolute maximum period of detention without charge in these circumstances is 28 days.
- Part 1 of Schedule 5 of the 2000 Act contains the following provisions relevant to searches:
- Paragraph 5 of Part 1 of Schedule 5 deals with the seizure and retention of material. It provides:
- Under paragraph 6, in order to justify seizure and retention, the material must satisfy a number of conditions, including that it is "likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation" and that "there are reasonable grounds for believing that it is the public interest that the material should be produced or that access to it should be given having regard… to the benefit likely to accrue to a terrorist investigation if the material is obtained."
- In Ward v Police Service of Northern Ireland [2007] UKHL 50; [2007] 1WLR 3013, the House of Lords considered in detail the provisions of Schedule 8. In that case, on an application to extend the warrant of detention, the judge had excluded the appellant and his solicitor from the hearing for about 10 minutes to consider closed information and, when the hearing resumed, they were not informed of what had transpired during their absence. The application for an extension of the warrant was granted. The appellant sought judicial review of that decision. Judicial review was refused by the High Court of Northern Ireland and the appellant's appeal was dismissed by the House of Lords. A number of the observations of Lord Bingham of Cornhill are of direct application to the present case.
- Paragraph 11, Lord Bingham made this observation about the general purpose of the provisions:
- Thereafter, at paragraphs 12-17 of his judgment, Lord Bingham dealt in detail with those safeguards. He referred to the periodic review of detention by the review officer who would not have been directly involved in the investigation, and the extension of the detention period (within defined limits) by a judicial authority. He stressed the importance of the notice of the application for a warrant of further detention, and the need for that notice to set out, amongst other things, the grounds upon which further detention was sought. Lord Bingham also emphasised the fact that a judicial authority may issue a warrant only if satisfied that there were reasonable grounds for believing further detention was necessary and that the investigation was being conducted diligently and expeditiously, and that the detained person was entitled to be legally represented at the hearing and had the right to make oral or written representations in relation to the application. Although he noted that the judicial authority had the power to exclude the person in respect of whom the application related, and anybody representing him, and could order that specified information upon which the applicant intended to rely should be withheld from the person to whom the application related and anyone representing him, Lord Bingham stressed that this could only happen if there were reasonable grounds for believing that, if the information were disclosed, evidence of an offence relating to terrorism would be interfered with or harmed, or the recovery of property would be hindered, or the apprehension, prosecution or conviction of a person suspected of falling within section 40(1)(a) or (b) would be made more difficult.
- The House of Lords concluded that it was lawful to exclude a terrorist suspect and his legal representative from an extension hearing so that the judicial authority could explore in sufficient detail whether the test for further detention had been satisfied. Lord Bingham said at paragraphs 27 and 28:
- It seems to me that, in considering the present application, the following elements of the TA 2000, and the analysis in Ward, need to be kept in mind:
- Thus, whilst Mr Jones may be right to submit that, a decade or more ago, the facts of the present case (and in particular the detention of these young men for 13 days without charge) would have been considered surprising, even shocking, the world has changed and Parliament has deemed it appropriate, in certain circumstances, for persons to be detained without charge for that sort of period. The provisions of the TA 2000, as analysed in Ward, are designed to ensure proper safeguards for the liberty of the citizen in such circumstances. One of the issues for this court is whether there is an arguable case that those safeguards were not properly applied to these claimants.
- On 8th April 2009, twelve men, including these three claimants, were arrested under section 41 of the TA 2000 in a variety of locations in the North West. They were suspected of being part of an organised cell involved in planning an imminent terrorist bomb attack. One of the twelve, Abid Naseer, was suspected of being the central figure in the conspiracy, and pivotal to the planning of the operation. He was also considered to be the link between these three claimants. In the open judgment of the Special Immigration Appeals Commission dated 18th May 2010 (SC/77/80/81/82/83/09), Mitting J held that Abid Naseer was an Al Qaeda operative "who posed and still posed as a serious threat to the National Security of the United Kingdom".
- These three claimants were arrested on suspicion of being concerned in the commission preparation or instigation of acts of terrorism, contrary to section 40(1)(b) of the TA 2000. They were arrested by GMP and detained by WYP in Eccleshill Police Station in Bradford. Extracts from the custody log show that:
- The custody log also shows that, in accordance with paragraphs 21 and 23 of Schedule 8, the detention of the three claimants was the subject of review by a senior officer. The first review of the first claimant occurred at 10.05pm on the 8th April. The log recorded:
- Similar entries were included in the logs of the other two claimants. The logs do not record who carried out the review.
- On the 9th April, at 7.40am, notices were given to the three claimants and Mr Yousaf, their solicitor, who had been instructed during the night. The men were no longer held incommunicado. The notices were in this form:
- Later that morning, at about 9.30am, the next review of detention occurred. The position was discussed with Mr Yousaf. He confirmed, as recorded in the custody log for the first claimant, that he was happy for any future reviews to take place whilst he was not present and that he had no representations to make at that time. Although Mr Yousaf now suggests that his failure to challenge the men's continuing detention was because of the lack of detail about the offences of which they were suspected, he certainly did not say that at the time. Indeed, it is a striking feature of this case that, although the claimants now complain about the absence of specific information provided to them during the 13 day period between 6th and 21st April, neither they nor their legal representative made any such complaint at the time.
- At 4.05pm on 9th April, the first claimant, Sultan Sher, together with Mr Yousaf, was provided with a copy of a note called the Pre-Interview Briefing Document ("BD/1"). This was the first of a number of such documents provided to each of the claimants. The second claimant, Mohammed Farooq, and the third claimant, Mohammed Sharif, also received similar documents later that afternoon. Although Mr Jones submitted that neither this nor any of the other Briefing Documents "made any difference" to the quality/quantity of information provided to the claimants as to the offences of which they were suspected, and he did not deal with their contents in his submissions, I am unable to accept that contention. In my judgment, the Briefing Documents contain many, perhaps all, of the answers to the questions now raised by the claimants in these proceedings.
- The third paragraph of BD/1 said:
- BD/1 went on to say:
- At just after 6pm, the first claimant was the subject of a lengthy interview in which he was asked detailed questions about the other people arrested, (including Abid Naseer); about the various premises, (including the Cybernet Café at Cheetham Hill Road in Manchester where he worked and where was arrested); about his knowledge of bomb making equipment ("Do you know or have knowledge of explosives?") and the like. He answered 'no comment' to each and every question put to him. Similar interviews took place with the other claimants, who had been provided with their own versions of BD/1, but who also said nothing in answer to the questions put to them.
- At the same time, on 8th April 2009, applications were made by GMP for search warrants in respect of the claimants' home addresses and addresses with which they were associated, including the Cybernet Café at Cheetham Hill Road. The search warrants were granted on 8th April by MMC. Because of the complaint now made as to the width of the search warrants granted, it is necessary to set out the relevant part of the information that was provided in support of the application. In it, the officer said that he had reasonable grounds for believing that the material was likely to be of substantial value (whether by itself or together with other material) to a terrorist investigation and that it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed.
- The relevant material was defined as:
- Search warrants were granted in those terms. The warrants included these words:
- The search of the first claimant's address at 89 Esmond Road Liverpool 8 was conducted over a ten day period between the 8th April and 18th April 2009. The search at the Cybernet Café was conducted between the 11th and the 14th April 2009. This search revealed an e-mail found in the memory of one of the computers at the café, which was also in draft form in a document stored on a USB drive found at Naseer Abid's house. Although ostensibly about girls and weddings, the authorities considered that the e-mail (which started with the words 'Hi Buddy') was in code and related to the planning of a large terrorist attack and contained a number of coded references to:
- The 'Hi Buddy' e-mail was at the heart of Mitting J's SIAC judgment noted in paragraph 23 above. He set out the email in full at paragraph 10 of that judgment. He referred to the security service assessment of the communication that it was a series of coded references to a planned terrorist atrocity, and he went on to conclude that "for the reasons which are wholly set out in the closed judgment, we are satisfied, that on the balance of probabilities, that assessment is right…. We are satisfied at least on the balance of probabilities that, by 3rd April e-mail, he [Naseer] declared to an Al Queda associate that that [carrying out an attack intended to cause mass casualties] was his intention."
- The second and third claimants shared an address 175A Earle Road Liverpool. This property was the subject of a search between the 8th April and the 19th April 2009. It appears that, in relation to all of the properties that were searched, the police's modus operandi during the period of the search was the same. They went to the property first thing in the morning and worked slowly through it, bagging up items of potentially relevant evidence. They worked in shifts during the day until about 7pm at night. They then closed up the property and went back to the police station, taking the items with them. The property was cordoned off and, at night, nobody else was permitted to enter. They then resumed their work at the property again the next morning, and worked in this way, often for a number of days, until the search was concluded.
- Later on the morning of 9th April 2009, the claimants were told of an application being made by the police for a warrant of further detention, the hearing of which would take place on 10th April 2009 at WMC. The claimants would attend by video link. The notice of this application and hearing, given in the Home Office TACT Form 6, notified the claimants that the application was "for the issue of a Warrant of Further Detention for the period of seven days beginning with the time of your arrest". It went on:
- All three TACT Form 6 notices were exactly the same. In addition, three formal notices of the application, containing much of the same information, were provided to Mr Yousaf in Home Office TACT Form 7. The application to WMC itself was in Home Office TACT Form 8. This application contained, at section 9, under a heading 'Further Enquiries to be made', a lengthy description of the police operation and the current state of play in the on-going investigation. On this occasion, the section 9 material was not provided to the claimants or their representative.
- A part of the hearing on 10th April was closed, from which Mr Yousaf and the three claimants were excluded. This was to allow the District Judge to scrutinise and ask questions about the material in section 9 of the TACT Form 8, in accordance with the procedure set out in Ward. There was no complaint about this procedure at the time from any of the claimants or from Mr Yousaf.
- There was also an open hearing, at which Superintendent Whiting of GMP, who was not involved in the investigation, made an oral application for the warrant of further detention. The contents of his oral application were reduced to writing and a copy was provided to the claimants at the time of the hearing. Amongst other things, this written note explained why the specified information (the section 9 material) was being withheld from the claimants. It also:
- It appears that, although he makes no mention of it in either of his two witness statements in these proceedings, Mr Yousaf cross-examined Mr Whiting during this open hearing. There is a manuscript note of his questions as to the time that the search might take, what the relevant exhibits might be, whether the other detainees had provided accounts and whether the claimants had been the subject of surveillance. It does not appear that, at any time on 10th April, Mr Yousaf complained about the detention process or suggested that the claimants should not be detained further.
- The warrants of further detention were granted. The formal notification of the decision, by District Judge Wickham, was in these terms;
- On the 10th April 2009, the first claimant was provided with a second Pre-Interview Briefing Document ("BD/2"). This document said that one of the other suspects, Tariq Ul-Rehman, had said that he had lived with the first claimant at two addresses in Cheetham Hill and that he had knowledge of a number of other people, including Abid Naseer. This document then formed the basis of a subsequent interview with the first claimant in which he made no comment to the questions put. Similar documents to BD/2 were also produced at this time for both the second and third claimants. They naturally contained different details, but were again based on information provided by other detainees and concerned knowledge of or involvement in various groups of individuals. Again these claimants were also interviewed and made no comment in answer to the questions.
- It appears that no interviews were carried out with any of the claimants over Easter Saturday and Sunday, the 11th and 12th April 2009. Speaking for myself, I find that surprising. In view of the utmost urgency of this investigation, and the fact that the warrants were due to expire on 15th April 2009, I consider that GMP/WYP had a clear obligation to use all the available time to advance their investigations, and in such circumstances, I would have expected them to conduct further interviews over that weekend.
- On Monday, 13th April 2009, each claimant received a third Pre-Interview Briefing Document ("BD/3"). These documents contained details of the material found at the various properties which had been the subject of the searches. In relation to the first claimant, BD/3 referred to documentation relating to Abid Naseer, as well as mobile phones and computers, and also referred to the Cybernet Café. These briefing documents were then used as the basis of further interviews with the claimants but again they answered no comment to the points put to them.
- The following day, 14th April 2009, the claimants were provided with a fourth set of Pre-Interview Briefing Documents ("BD/4"). Again each contained different but similar material. They identified a number of items which were said to be "areas of interest to this investigation". In the case of the first claimant, these included:
- In respect of the first claimant, BD/4 went on to say:
- On 14th April 2009, the claimants and Mr Yousaf were informed that an application had been made to WMC to extend the warrant of further detention for a further 7 days (making a total period of 14 days from the time of arrest, the maximum period permitted without authorisation by a High Court Judge). Notification of this application was then given in accordance with the Home Office TACT Form 9. It was in similar terms to the earlier notice. There was also a further application to WMC, in TACT Form 11, in respect of each claimant. Critically, these documents were provided to the claimants. They contained a mass of information at section 9 (which was not withheld on this occasion) about the background to the investigation, the associations of the claimants, the scenes that had been searched, the forensic analysis, and the phones, computers, DVDs and documents that had been recovered. And, under section 10, there was a lengthy list of bullet points under the heading "Reason Detention is Necessary Whilst Enquiries Made". It is instructive to note the stated reasons in relation to the first claimant, which were as follows:
- The second application was heard on the 15th April 2009 at WMC, by Senior District Judge Workman. The claimants again attended by video link. Although in his 'statement of facts', which forms the basis of the claimants' application for permission, Mr Yousaf asserts that this was, at least in part, a closed hearing, that is just not the case. All the contemporaneous evidence shows that the hearing on 15th April was entirely open. I return below to this misleading and important element of Mr Yousaf's evidence.
- The application was made by Superintendent Harman, who, like Superintendent Whiting before him, was not connected to the investigation. In his oral application, which was again reduced to writing and provided to the claimants and Mr Yousaf, Superintendent Harman made a number of specific points, including the statements that:
- The extensions sought were granted. The formal notification in relation to each claimant confirmed in writing that Senior District Judge Workman was satisfied that the investigation was being conducted diligently and expeditiously and that there were reasonable grounds for believing that the further detention of the claimants was necessary to obtain relevant evidence. The warrants were extended by 7 days, until 22nd April 2009.
- Following the extension, the claimants were interviewed on a number of further occasions. There were two further sets of Pre-Interview Briefing Documents provided ("BD/5" and "BD/6") in advance of those detailed interviews in which the claimants made no comment in answer to the questions that were put to them. Although it is unnecessary to go through those in detail, it is worth noting that in BD/5, dated 18th April 2009, in the version provided to the first claimant, the 'Hi Buddy' e-mail of the 3rd April, to which I have referred at paragraphs 36-37 above, was expressly referred to and set out. The briefing document said that an external pen drive had been recovered at a property in Cheetham Hill and that evidence existed within the pen drive that a wordpad document had been created in a format within the memory. The external pen drive had been used on a computer tower at the Cybernet Café on 3rd April "and it is strongly believed that this communication suggests that a planned attack was imminent".
- Having set out the e-mail in full, BD/5 went on to say:
- Unsurprisingly, BD/5 formed the basis of lengthy interview in which specific questions were put as to the first claimant's knowledge of these documents and the other materials. Again, no answers were forthcoming. As noted, similarly detailed briefing documents were provided to the second and third claimants. The process was repeated via B/D 6. On 20th April, there was a final round of briefing documents (BD/7), again relating to e-mails and computer communications, in particular a specific and identified user name. Again the claimants made no answer to the questions put in the subsequent interviews.
- As noted above, these three claimants were only part of a wider police operation. Others suspected of involvement in the same conspiracy were being detained in different locations. Three being held in Birmingham were the subject of an application for a further extension of the warrant of detention which took them over the 14 day maximum and which therefore required an application to a High Court Judge. This application was the subject of a 5 hour hearing before Blake J on 17th April 2009. Blake J's judgment is of more than passing interest, partly because it was subsequently referred to in the review of Operation Pathway, completed by Lord Carlile of Berriew QC, the Independent Reviewer of Terrorism Legislation, and partly because he addressed some of the matters which are now raised on behalf of the claimants in these proceedings.
- Although there is no agreed transcript of his judgment, it appears that Blake J made a number of important observations in his judgment, including that:
- On 21st April 2009, all three claimants were served with deportation orders and transferred to immigration service custody on 22nd April 2009. The first claimant was released from custody on 17th July 2009 on conditions, including electronic tagging. As noted above, in September 2009, all three claimants returned voluntarily to Pakistan.
- As I have already said, following these events, Operation Pathway was the subject of a detailed review by Lord Carlile. The claimants sought to rely on various passages in his report. Amongst the relevant passages are the following:
- It is the claimants' case that their original arrest and detention were unlawful because they were not told why they were being detained, and thus could not challenge their detention without charge. It is said that this constituted a breach of Article 5.2 of the European Convention on Human Rights and was contrary to what Lord Carlile called 'the arrest law'.
- GMP and WYP (the first and second defendants) make two principal submissions in answer to this part of the case. First they contend that this is not a matter for judicial review at all, and that the claimants have a private law remedy, for wrongful arrest and unlawful imprisonment, which is the only appropriate forum for such a fact-sensitive dispute. Secondly, if they are wrong about that, and judicial review is the appropriate vehicle for these claims, they maintain that at all times there were reasonable grounds for the arrest and detention of the claimants, because they were reasonably suspected of involvement in the preparation, commission or instigation of an act of terrorism, and that the claimants were given sufficient information to understand why they were being arrested and detained. Thus they contend that, if the Administrative Court is the correct forum, there are no arguable grounds for an application for judicial review in any event.
- GMP and WYP contend that, in the absence of any claim for an injunction or any other immediate relief, this is a straightforward claim for declarations and damages arising out of historical events said to amount to wrongful arrest and false imprisonment. They therefore maintain that it is inappropriate for these proceedings to be brought by way of judicial review. They also contend that, because a party in a case of false imprisonment can elect trial by jury, they would be deprived of their right if these JR proceedings were maintained.
- The claimants contend that, because these claims involve the decisions of public bodies, the claims should be brought by way of judicial review. They also say that these claims are inextricably linked to other claims, such as the claim dealt with in Section F below (in respect of the statutory provisions relating to the procedure for extending warrants of detention), which are unarguably public law matters. In addition, they raise issues such as difficulties with funding, and the potential problems they may face in responding to an application for security for costs, to argue that the claimants are more likely to achieve a final trial if the action is kept as a claim for judicial review in the Administrative Court.
- False imprisonment is "the unlawful imposition of constraint on another's freedom of movement from a particular place": see Collins v Wilcock [1984] 1 WLR 1172 at 1177. It is a tort established on proof of the fact of imprisonment, and the absence of lawful authority to justify that imprisonment. It is the subject of part 5 of chapter 15 of Clerk and Lindsell, 19th Edition, 2006. Thus, on the face of it, all the claims made against GMP and WYP can be brought in ordinary Queen's Bench Division proceedings. It has been said repeatedly by the courts that permission to proceed with a judicial review claim will be refused where a claimant has failed to exhaust his other possible remedies (see for example R (Sivasubramaniam) v Wandsworth County Council [2002] EWCA Civ 1738). Furthermore, a claim for judicial review cannot be used merely to enforce private law rights against a public body: see R v East Berkshire Health Authority ex parte Walsh [1985] QB 152 at 162.
- What then is the proper demarcation between the QB and the Administrative Court in a case like this? In O'Reilly v Mackman [1983] 2 AC 237, at 285, Lord Diplock suggested that:
- However, with the coming into force of CPR 54, the Court of Appeal has doubted the continuing relevance of O'Reilly v Mackman (see Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 and the cases cited in paragraph 54.3.2 of The White Book, Vol 1, 2010) and it has been much-criticised in a number of the later cases. The emphasis now is on a flexible approach, to ensure that cases are dealt with expeditiously and fairly in accordance with the overriding objective, and avoiding sterile and expensive procedural disputes. Of course, O'Reilly v Mackman, and many other cases in this area, involved claims which were not thought to be strong, where the courts were anxious to ensure that the proceedings went through the judicial review permission hurdle, which would not apply (at least, not in quite the same way) in private law cases. In the present case, of course, that position is reversed, because it is the defendants who are seeking to transfer these proceedings to the ordinary Queen's Bench list, thus obviating the need for a permission hearing at all.
- In addition, GMP and WYP argued forcefully that it is generally inappropriate to commence judicial review proceedings in a case where, not only is there a private law remedy, but there are also detailed disputes of fact. In judicial review proceedings, what matters is the lawfulness of the decision-making process, not the merits of the decision itself: see paragraph 54.1.4 of The White Book. Because evidence is usually given by way of affidavit and there is no cross-examination, judicial review is generally an unsuitable process for cases with a high degree of factual debate: see R(G) v Ealing LBC (No 2) [2002] EWHC 250 (Admin). This point leads in turn to a consideration of the issues that are likely to arise in the present proceedings.
- What are the likely issues arising out of the claimants' claim for wrongful imprisonment/ detention? They are going to centre on what information was provided to the claimants during the 13 days that they were held without charge. Some of that information can be gleaned from the documents which I have set out above. But there will doubtless be evidence as to what was said or not said on various occasions, including the court hearings, as well as in the numerous interviews conducted over this period, in respect of which we presently have some short manuscript notes which have not been transcribed and are often illegible.
- The claimants' central claim is based on the assertion that they were not given sufficient information about the reasons for their detention in order to be able to challenge it. In my judgment, that issue can only be determined by weighing up the information they were given at any one time against the entirety of the information that was available to the police at the same time. Although Mr Jones submitted that this was a case where the facts were not in dispute, Mr Edis and Mr Perry vigorously disagreed with that proposition. On all the information that I have seen, I consider that they were right to do so: the vital dispute as to whether or not the claimants were given sufficient information at any given moment will depend on what was said to the claimants and when, against a consideration of all the background facts, and in particular the ever-changing developments during the police investigation.
- I note that this was also the view of Lord Carlile in his review. At paragraph 65 he said this:
- In my judgment, Lord Carlile was right to stress that the point at which sufficient information has been given to a suspect will vary according to the facts and circumstances of each case, and that whether or not that information has been provided promptly will be entirely case- and therefore fact-specific. I do not see how a claim for wrongful imprisonment or unlawful detention, which turns on these potentially fine nuances of fact, is suitable for a process which does not ordinarily involve any cross-examination or fact-finding at all. Fact-specific claims of this sort are, in my judgment, wholly inappropriate for judicial review proceedings.
- In addition, in the present case, there are a number of individual grounds which are plainly fact-specific, as noted below.
- It is said that the reviewing officer conducting the first review following arrest can have had no information upon which to base his decision and that accordingly the review was unlawful. On its face, that is a plain issue of fact. On further analysis, this argument may turn on the claimants' particular submission that the first review occurred at the moment when the claimants were brought to the police station and their detention was authorised. It is the defendants' case that the first review did not occur on that occasion, because it was only on arrival that their detention was originally authorised and that, accordingly, any review of that detention could not take place until after the detention had begun. The defendants say that the first review occurred a little over an hour later (see paragraph 25 above).
- This particular argument may turn on the proper interpretation of the custody log, although for myself, I would conclude that the claimants' contention is hopeless. The review of detention by a senior officer cannot take place until that detention has started, and detention can only start if it was authorised, which was what was recorded at the outset of the custody log. Thus a review of that detention cannot take place until some time after that. But if that is wrong then, as Mr Edis demonstrated, there may be matters of fact which the defendants would wish to rely on to demonstrate the information available at the time of the first review.
- The claimants contend that the reviewing officer conducting the first review was not of sufficient rank. He therefore had no power to authorise detention. This seems to be a variation on the alternative argument noted under Ground 3(a) above, because it is dependant upon a finding that the first review took place when the claimants were booked in by the Custody Sergeant, as opposed to the event an hour later, when the review was apparently carried out by a Superintendent. Either way, this argument is either hopeless for the same reasons as noted above or it is a dispute of fact.
- The claimants say that the decision to hold them incommunicado was not taken by an officer of sufficient rank. Here the argument is that the decision to hold them incommunicado was made at the outset and therefore cannot have been made by a Superintendent but by the Custody Sergeant. However, the defendants contend that this decision was actually made by a Superintendent and simply recorded by the Custody Sergeant. Again that would appear to involve a plain issue of fact.
- As noted, when he adjourned the application for permission to apply for judicial review to an oral hearing, in his order of 4th November 2009, Sir Michael Harrison said that an oral hearing was necessary "amongst other things, to determine whether judicial review was the appropriate remedy for any, and if so, which of the various issues raised in the claim form". On one view, therefore, the dispute as to the appropriate forum is the most important issue for us to decide. For the reasons set out below, I have concluded that these claims should not be permitted to continue as judicial review claims in the Administrative Court.
- First, there is a pre-existing private law remedy available to these claimants against GMP and WYP. This is not a case where, if the claimants were not entitled to pursue judicial review proceedings, they would be left without a remedy. There can be no question of injustice if these proceedings were transferred to the QB: indeed, it is only if such a transfer occurred that the defendants could exercise their right to trial by jury.
- Thirdly, the claims being made by the claimants are historic. They seek declarations and damages by reference to events that occurred over a year ago. There is no claim for a mandatory or prohibitory order (CPR 54.2). There is therefore no reason for these proceedings to take up the judicial resources of the Administrative Court, which are required for the numerous urgent and prospective judicial review proceedings issued in the High Court every week. And although it is said that these issues are of public importance, that is not, without more, a reason to keep a fact-sensitive dispute, where there are obvious alternative remedies, in the Administrative Court.
- I do not consider that the claimants' complaint that there would be difficulties of public funding if the matter was transferred to the Queen's Bench Division, or that the claimants may then be the subject of an application for security for costs, can have any relevance to the question of the proper forum for these claims. Judicial review proceedings do not exist in order for claimants to circumvent the usual rules relating to civil litigation and the funding and costs thereof. It would be wholly inappropriate to allow judicial review proceedings to become some sort of 'costs-free' civil jurisdiction, which gets a claimant to the same result as his private law remedies (regardless of the nature of the underlying dispute), but without the usual costs risks. I note too that the claimants say that public funding has not been readily available for these proceedings either, so that does not appear to be a material consideration in any event. The claimants would not have to return to the UK to give evidence in their private law action, which could instead be provided by way of video-link: see Polanski v Conde Naste Publications Ltd [2005] UKHL 10.
- For all those reasons I have concluded that GMP and WYP are correct, and that these proceedings are inappropriate for judicial review. They ought to be addressed in an ordinary Queen's Bench action in which the potentially complex factual arguments can be properly determined.
- I make plain that this conclusion is subject to one point. If the claimants were able to demonstrate that there were other parts of these claims which were arguable, and in respect of which judicial review proceedings offered them their only remedy, then in circumstances where the underlying issue was the same - namely, whether or not the claimants were given sufficient information - it may be a pragmatic and flexible solution for all such matters to be dealt with together in one set of judicial review proceedings. Accordingly, it is important in the subsequent sections of this Judgment to identify whether or not there are any such arguable judicial review claims.
- An arrested man is entitled to be told what is the act for which he has been arrested: see Christie v Leachinsky [1947] AC 573, 593. What is sufficient depends on the circumstances of each case; see Taylor v Chief Constable of Thames Valley [2004] 1 WLR 3155. That is reflected in Article 5.2 of the Convention which requires that:
- These provisions are reflected in the common law. As Lord Neuberger MR said recently in Bank Mellat v Her Majesty's Treasury [2010] EWCA Civ 483, in a passage relied on by the claimants, "every party to litigation has the right to be given sufficient information about the evidential case against him, so as to enable him to give effective instructions in relation to that case." In addition, Article 5.4 of the Convention requires that:
- Article 5.2 (arrest) was considered by the European Court of Human Rights in Fox, Campbell and Hartley v United Kingdom [1991] 13 EHRR 157. In that case the applicants were arrested pursuant to section 11 of the Northern Ireland (Emergency Provisions) Act 1978 and told they were being arrested on suspicion of being terrorists. The court found that, whilst that bare indication of the legal basis of the arrest, taken on its own, was insufficient for the purposes of Article 5.2, there was no breach of the Convention because, following their arrest, the applicants were interrogated at length, and various detailed matters were put to them. The court concluded that there was no ground to suppose that those interrogations were not such as to enable the applicants to understand why they had been arrested.
- In relation to their case on wrongful detention, the claimants relied on A and Others v United Kingdom (2009) 49 EHRR 29 and AF and Others v Secretary of State for the Home Department [2009] UKHL 28. These were both cases concerned with control orders and the special advocate system used in SIAC. In A v United Kingdom, the court dealt in detail with the system and concluded that:
- For myself, I consider that these two decisions, whilst of some limited relevance to the incompatibility argument addressed in Section F below, are of no assistance when considering the detention authorised by WYP following the claimants' initial arrest. Both those cases were concerned with the very different regime of control orders, which – unlike the detention in the present case - can continue for many months and even years.
- Each claimant was told that he was being arrested under section 41 of the Terrorism Act 2000 because the officer arresting him reasonably suspected that he was a terrorist. In my judgment, nothing more was required at that moment. As the decision in Fox and Others makes plain, a general statement of that sort will not usually amount to a breach of Article 5.2, provided of course that, thereafter, further information as to how and why such suspicions are held is promptly given to the suspect. For the reasons given in the next section of this Judgment, I am in no doubt that, on the material available to the court, such further information was given promptly to the claimants.
- It seems to me that the claimants could only challenge the lawfulness of their actual arrest on 8th April 2009 by way of judicial review if they were making a case that the arresting officers did not honestly suspect them of being terrorists or that such belief was unreasonable. No such case is advanced on behalf of the claimants nor, on the available material, could it be. In those circumstances, it seems to me that the lawfulness of the arrests themselves cannot be impugned and the application for permission to seek judicial review of GMP's decision to arrest them is therefore hopeless.
- The claim against WYP is based on the decision to detain the claimants. It seems to me that, in reality, this claim is likely only to arise in respect of decisions taken by WYP between the late evening of 8th April and the morning of 10th April 2009. That is because, from midway through 10th April, until the claimants were released on 21st April, their detention was justified by reference to the orders of District Judge Wickham and, subsequently, Senior District Judge Workman. Whilst I accept that, in theory, it might be arguable that, notwithstanding the existence of the continued warrants for further detention authorised by WMC, WYP acted unreasonably by not releasing the claimants earlier, for the reasons set out at paragraphs 96-101 below, there is nothing in the material before the court to suggest that such a case is in any way arguable.
- The custody logs demonstrate that, during the first 38 hours of the claimants' detention, the reviews were carried out at 12 hourly intervals and that all the appropriate and relevant information was taken into account. The records also reveal that neither the claimants nor their solicitor took any point as to their continuing detention during this period of 38 hours or so. On the face of the documents, therefore, I consider that it is impossible to say that any sustainable Wednesbury case as to absence of information emerges at all.
- That view is confirmed by a consideration of the documents provided to the claimants during this early period. As noted above (see paragraphs 27-32 above), on 9th April 2009 the claimants were given BD/1 and, having had a chance to consider the material there contained, they were interviewed at length about it. From this information, the claimants would have been in no doubt that they were being detained under suspicion of being involved, with other named conspirators, in a plan to plant a terrorist bomb. In all the circumstances, it seems to me that this was sufficient information to satisfy Article 5.2 and Article 5.4, at least at that early stage.
- As to the period after 10th April, Mr Jones submitted that the claimants' detention by WYP was unlawful because they were detained solely on the basis of information provided at closed hearings on 10th and 15th April. Paragraph 41 of the grounds states: "At each application it appears that the Superintendent addressed the District judge ex parte at some length…the crucial point is that the claimants and their lawyers were told nothing". The factual support for these assertions was set out in the statements of Mr Yousaf. Accordingly, it appeared that the claimants were saying that, notwithstanding the decisions of 10th and 15th April, the decision to detain them by WYP during this period was unlawful and/or irrational.
- I have already made the point that the claimants' Grounds and Mr Yousaf's statements were wrong to say that the claimants were being held on the basis of information solely derived from closed hearings (see paragraphs 42-43 and 50-53 above). They were not: the first hearing was part closed, part open, and the second hearing was entirely open. No explanation was provided as to how or why the claimants' case was so misleadingly incorrect on such a basic point. In addition, contrary to Mr Yousaf's generalised assertion to the contrary, I consider that the claimants were being provided with sufficient information during this period to justify their continuing detention. I have set out at some length the relevant documents in paragraphs 42 to 56 above. Mr Yousaf makes no reference to or mention of these documents in his statements, nor to the lengthy interviews that were conducted on the basis of these documents. As a result, it seems to me that this part of the claim for judicial review is fundamentally flawed.
- Indeed, I was left with the overwhelming impression that, for the purposes of this application for permission, the claimants rather hoped that the court would simply accept their basic assertion that they were not given sufficient information, without endeavouring to support that claim in any meaningful way at all. Mr Jones repeatedly asserted that the basis on which the claimants were detained "was never explained to them", without ever attempting to engage with, let alone address the contents of, the detailed documents that I have set out above. In my judgment, it is plain from all that material that the allegations being made, and the questions being asked, were becoming more and more specific as the days passed, and that by the end of the 13 day period of detention, the claimants were each aware that they were being detained on suspicion of being involved, with other named co-conspirators, to cause imminent bomb explosions at certain specified public locations in the North West of England.
- Mr Jones submitted that the claimants should have been given detailed information at the outset of their detention, with a level of specificity that was akin to the information in an indictment. As noted in paragraph 21 above, I consider that that submission is wrong in principle. The whole purpose of those parts of the TA 2000 which I have identified earlier in this Judgment is to allow suspects to be detained after arrest without being charged because, at the time of their arrest, and perhaps for many days thereafter, it may not be possible to formulate charges against them as specifically as would appear on an indictment. That is precisely why Parliament has said that suspects can be detained without charge for up to 28 days, in order to allow further information as to the proposed charges to be obtained. Provided that sufficient information is provided to allow those detained under the TA 2000 to challenge the lawfulness of that detention, if that is what they wish to do, then that is sufficient to satisfy both Article 5.2 and Article 5.4.
- Of course, as Blake J noted in his judgment, and as Lord Carlile noted in his review, the time will always come when more specific details of the suspected offences must be provided to the detainees. In this case, for the reasons that I have given, I consider that sufficient information was provided to the claimants to allow them to know why they were being detained and to challenge the lawfulness of the decision to detain them. They knew who the other conspirators were alleged to be, what the suspected crime was (intending explosions in particular public places in the North West), and what at least some of the evidence was (including the important 'Hi Buddy' email) that directly linked them to these allegations.
- Accordingly if (contrary to my primary view) it was appropriate to consider an application for permission to bring these judicial review proceedings against GMP and WYP then, on the basis of the material provided, I would refuse to grant such permission. The claim is simply not arguable on the material that has been provided.
- As I have already noted, there are a number of particular criticisms which are made of WYP. These are at grounds 3a), 3b) and 3c) in the 'Grounds' document. I have already said that these are matters of fact: see paragraphs 74-77 above. But if they have to be considered for the purposes of a permission application for judicial review then, on the basis of the material before the court, I would make the following additional points:
- For the reasons which I have outlined, it does not seem to me that the claimants have any prospect of being able to demonstrate the unlawfulness of either their original arrest on 8th April 2009, or the decisions to keep them in continued detention made later on the 8th and 9th April 2009, or the decisions to keep them detained during the periods authorised by WMC. No arguable claim for judicial review of those decisions is therefore made out.
- The claimants originally complained about the decision on the part of GMP to seek the search warrants in the first place. That allegation is no longer maintained. Accordingly the criticisms that now remain are three-fold. First it is said that the warrants should not have been issued in wide form in which they were by MMC. Secondly, it is submitted that GMP were in breach of the terms of the search warrant because, although they only had permission to undertake a search on one occasion, they actually occupied the premises for many days. Thirdly, there are complaints about the seizures themselves.
- I deal with the claim for judicial review arising out of the width of the search warrants at Section E3 below. The other two aspects of this part of the case, namely the lawfulness or otherwise of the manner in which the searches were conducted, and the claims arising out of the seizures, are said by the defendants to give rise to issues of fact which could and should be decided in private law proceedings. By way of example, they submit that it is absurd for the claimants to suggest that an argument about whether a particular item of property was or should have been returned to them is an appropriate matter for judicial review.
- In my judgment, the defendants' contention in this regard is unarguably right. I have already concluded that the allegations in respect of arrest and detention are matters which can only properly be dealt with in private law proceedings. Precisely the same considerations apply to the allegations in respect of the way in which the searches were conducted and the debate about the particular items of property seized, which can only be conveniently dealt with in the same private law proceedings.
- A Magistrate's decision to issue a search warrant may potentially be the subject of judicial review: see, for example, R v Chief Constable of the Warickshire Constabulary ex parte Fitzpatrick [1999] 1 WLR 564. However, as Jowitt J made plain in that case, such a decision can only be challenged in a public law claim on the basis of the principles set out in Wednesbury. In the present case, I was unable to discern from Mr Jones' submissions any attack on MMC on the grounds of irrationality. The criticism appeared to be simply that, because the warrant contained a lengthy list of references to common household items, such a list must, of itself, be too extensive or onerous. I reject that submission for three reasons.
- First, it is much too general an assertion. A list may be too onerous in one case, and be entirely appropriate in another. It must always depend on the facts. A decision to grant a warrant in particular terms cannot be described as unreasonable or irrational without a consideration of the factual background.
- Secondly, in a situation like this, the police will be unlikely to know precisely what they are looking for. So they will identify those sorts of items which, in the past, have been relevant to searches such as this. Thus there are specific references to travel documents, computers, books, DVDs and the like. But it would be unrealistic for this court now to say, over a year later, that one or two of these items might, with hindsight, have been irrationally included in a list produced at the outset of a major terrorism investigation.
- Thirdly, the court must recognise, in undertaking these urgent investigations, the police are not hamstrung by an artificially restricted list of items that they can investigate and/or seize. It would be contrary to the public interest if, on a search of premises in the context of an ongoing and urgent terrorism investigation, the police were inhibited because item A was on the list but item B was not. There is a clear public interest in ensuring that, within properly defined limits, the list is not restricted.
- These points can, I think, be made good by reference to one of the individual complaints raised by the claimants in their grounds. A specific complaint is made about the decision to seize printer paper. But Mr Edis points out, rightly in my view, that fingerprints from printer paper have, in the past, provided evidence as to who might have used a computer from which communications directly relevant to the conspiracy may have been sent.
- For all these reasons, therefore, I reject the submission that the warrants were in terms that were too wide, or that there is an arguable Wednesbury case that the decision to issue a warrant in these terms was unlawful or irrational. It seems to me that it is inevitable in cases like this that the warrants will be in relatively wide terms. The need to ensure public safety under the TA 2000 requires nothing less.
- The claimants say that, because the police had authority to search 'on one occasion', it was a breach of the warrant for them to occupy the premises for a number of days and to keep those premises under secure conditions while the searches were carried out. As I have said, that is not a matter of judicial review. If the police went outside the terms of the warrant then that would again be a matter for the claimants' private law remedy.
- However, if this were a matter for judicial review, I can see no basis for concluding that the claim is even arguable. The police were authorised to search these premises "on one occasion". Giving those words their natural meaning, the warrant authorised the police to go to the property in question, undertake the search, and, when they had concluded that search, restore the property to the control of its owner/occupiers. That is precisely what happened here. The fact that the "occasion" lasted for more than one calendar day is irrelevant: there is nothing temporal about the word "occasion", so there is no reason to say that "occasion" had to equal "one day", or that the search had to be completed in one calendar day.
- It seems to me that the terms of the search warrant meant that, once the search had been conducted and concluded, the police would have no power to re-enter the property. That is what happened. The mere fact that the searches took many days is a feature of the nature of this investigation, rather than a breach of the warrant. Thus, if contrary to my view, this was a legitimate matter for judicial review, I would conclude that the claimants' claim is hopeless and I would not grant permission to bring the claim.
- Complaints were made as to the property seized and as to the alleged failure to return certain items of property. In my judgment, these issues are nothing to do with judicial review. Although Mr Jones relied on the decision in Ex Parte Fitzpatrick (paragraph 107 above), it seems to me that, on a proper analysis, that case is against him. Jowitt J said:
- Moreover, if there were items which were seized and which remain to be returned then, as the defendants have argued, such disputes would and could have been sorted out if the claimants had followed the judicial review pre-action protocol. They did not. So, if – contrary to my primary view – this claim was appropriate for judicial review, it would have to be stayed anyway for the protocol process to be worked through. There is certainly nothing in this part of the case that would justify giving permission at this stage to bring judicial review proceedings. Indeed, it is my understanding that, towards the end of his oral submissions, Mr Jones came close to abandoning this part of the claimants' case.
- I now turn to the claimants' claim against SSHD that the procedure for hearing applications for warrants of further detention under Schedule 8 of the TA 2000 is incompatible with the Human Rights Act 1998. It seems to me that, unlike the elements of this claim which I have so far considered, this is a matter which, if it is appropriate to grant permission, would justify judicial review proceedings. Thus, alone of the issues before the court, this is the one which, on its face, gives rise to the possibility of judicial review. The issue, of course, is whether the claimants' claim is arguable, such that permission should be granted. I consider separately the claims for judicial review against WMC arising out of the warrants of further detention themselves, which also involve a consideration of the information available as at 10th and 15th April 2009 (Sections F4 and F5 below).
- It is the claimants' case that, pursuant to section 4 of the Human Rights Act 1998, the court should grant a declaration that the procedure for hearing applications for warrants of further detention under Schedule 8 is incompatible with Article 5.4 of the ECHR. The claimants submit that the procedure under Schedule 8 allows for closed information to be provided to the District Judge but fails, in contrast to the control order scheme, to provide for special advocates to make representations about that information. They say that, in consequence, in the present case, decisions on further detention were made entirely on the basis of closed information, which meant that they had no proper basis to challenge their continuing detention. In the cases of A and AF, referred to above, the provision of a special advocate was regarded as essential in safe-guarding the Article 5 rights of the controllee.
- SSHD takes issue with this submission both in principle and on the facts. As a matter of principle, it is said that the decision of the House of Lords in Ward dealt comprehensively with the fairness and compatibility of the procedure for extending warrants of detention. It is also submitted that, if it had been a matter of legitimate concern, the claimants could have asked for special advocates. In addition, SSHD takes issue with the contention that the procedure for further detention in this case proceeded solely on the basis of closed information: they submit that, whilst some closed information was provided at the first hearing on 10th April, the remainder of that hearing was open, whilst the hearing on 15th April was entirely open.
- In my judgment, the House of Lords in Ward made clear that the process under Schedule 8 was compatible with the European Convention on Human Rights. What is more, the particular point in issue, namely the holding of closed hearings, was expressly regarded by Lord Bingham as being in the best interest of the detained person (i.e. the claimants) as it enabled the judicial authority rigorously and conscientiously to explore the basis of the application for their detention: see paragraphs 19-20 above.
- I reject the submission that, by reference to the cases A and AF, the provision of a special advocate was essential to ensure the fairness of the proceedings on 10th and 15th April 2009 at WMC. First, I consider that that submission is fundamentally inconsistent with Ward. Closed proceedings were to the advantage of the detainee, for the reasons explained by Lord Bingham, so special advocates were not required. Secondly, as I have already said, the decisions in those two cases have no direct application to proceedings under Schedule 8 of the TA 2000. They were concerned with control orders and the dramatic impact of lengthy and apparently indefinite periods in which the liberty of the subject may be constrained. Under Schedule 8, there is both a strict time limit of pre- charge detention for periods of up to 7 days at a time, up to a maximum of 28 days, and also the requirement that proper information is provided, by way of the notice to the detained person of the grounds of the application. This is therefore an entirely different situation to that under review in the control order cases[2].
- Thirdly, I accept Mr Perry's submission that the claimants have simply not explained why the absence of an express provision for a special advocate inevitably leads to the conclusion that the scheme was incompatible with Article 5.4. In Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015 and Malik v Manchester Crown Court [2008] EWHC 1362 (Admin), it was made clear that a judge can provide the necessary critical scrutiny in the interests of the person who is the subject of the proceedings, in such a way that a special advocate need not be appointed. And if there is any tension between the period of detention and the absence of specific information in open hearings, then it is always open to the judicial authority to refuse the application to withhold information or to refuse the application for the extension of detention. Blake J indicated, in the related cases here, that the time was approaching when that might be the appropriate course. There is therefore nothing to say that, in some way, the appointment of special advocates would have made any difference at all.
- Fourthly, if I am wrong about that and, in some way, the appointment of a special advocate was of importance in the present case, then such an advocate could have been appointed in any event. A District Judge has the power to request the appointment of a special advocate in appropriate cases where this is necessary in the interests of justice: see Alex Roberts v Parole Board [2005] 2 AC 738 and R v H and others [2004] 2AC 134. As I have already noted, this was not something that the claimants or their representatives ever even raised in the hearings on 10th and 15th April.
- For all those reasons, it seems to me that the incompatibility argument fails in principle at every level. It would be wrong to grant permission to bring judicial review proceedings on the basis of such a hopeless case.
- It is also plain that, as I have already made clear - the claimants' case (as advanced in their Grounds and in Mr Yousaf's statements) is wrong on the facts. The decisions to grant the warrants of further detention were not made entirely on the basis of closed information or secret hearings from which the claimants were excluded. The true position is that the decision on 10th April 2009 involved some closed information at a closed hearing, whilst the bulk of the hearing was open, and that the decision on 15th April 2009 was made entirely on the basis of open information. On that occasion, there was no closed hearing at all.
- Thus, contrary to the claimants' stated case, the periods of detention were twice extended on the basis of information which was almost entirely open. The claimants' legal representative was in a position to cross-examine Superintendent Whiting on 10th April, and Superintendent Harman on 15th April, and make representations in opposition to the applications for further detention. There is no suggestion that Mr Yousaf had any difficulty with the procedure at the time. The mere fact that one part of one of the hearings took place in the absence of each claimant was entirely in accordance with Schedule 8 and, for the reasons set out by the House of Lords in Ward, cannot be a ground of judicial review now.
- Accordingly, for the reasons I have given, the claim for permission to seek judicial review on the basis of incompatibility - ground 2 - must fail both in principle and on the facts.
- Of course, it is also a feature of the claimants' case against WMC that the orders made on 10th and 15th April 2009 were unlawful/irrational because inadequate information was provided to the claimants about the reasons for their continued detention. That is potentially a matter of public law, so the threshold jurisdiction point does not apply. But, by reference to the documents which I have set out in some detail in paragraphs 27 - 56 above, and the analysis of their effect at paragraphs 97-101 above, I am satisfied that, on the information available to the court, this claim is fanciful. Sufficient information was provided in the documents and in the open hearings for the claimants to know why they were being detained. It is also relevant to note that, in the related case, Blake J approved further detention beyond the 14 days and, although he very properly indicated that, in the absence of better information and/or better evidence, the clock was running, he made no criticism of the earlier decisions by the District Judges to extend the period of detention without charge.
- In my judgment, at each of these hearings, the claimants had sufficient information to understand why they were in custody, and why the application for the warrant or the extension of the warrant was being made. The closed material seems, as a matter of fact, to have been largely immaterial, given that there was sufficient material in the open information to allow the claimants to oppose the application if they so chose.
- Accordingly, it seems to me that the claim against WMC is unarguable for all the reasons that I have noted. It would not be appropriate to permit judicial review proceedings in such circumstances.
- It is also convenient to deal here with the final point raised by the claimants, namely that the decisions of District Judge Wickham (paragraph 44 above) and Senior District Judge Workman (paragraph 55 above) were improper or invalid because they did not contain reasons. The claimants maintain that English law requires reasons to be given in relation to any decision (see Clark v Clark Construction Initiatives Ltd and Another [2008] EWCA Civ 1446) and that this principle has been found to apply to decisions to grant warrants (see, by way of example, R v Crown Court at Lewes ex parte Hill (1991) 93 Cr App R 60).
- There are a number of reasons why I consider this to be an unarguable criticism in the present case. First, although stated in brief terms, reasons for both the decisions were in fact given: see paragraphs 44 and 53 above. It is trite law that it is unnecessary for a decision-maker to decide every point; it is sufficient for the stated reasons to amount to a cogent explanation for the decision reached: see, for example, English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409 and Checkpoint Ltd v Strathclyde Pension Fund [2003] EWCA Civ 84. I consider that the reasons given here meet that test.
- Secondly, in the light of the ongoing police investigation, it seems to me that it was important for the District Judges to keep their written reasons short. What mattered most was the scrutiny they brought to bear on the reasons for the specific applications being made, not the form in which their conclusions were stated. Thirdly, given that the first hearing was partly an open hearing and the second hearing was an entirely open hearing, the reasons for the application were well-known to the claimants. They were set out in a variety of documents, as noted above.
- Thus I conclude that this is not a substantive criticism, and I regard it as artificial to say that, because the District Judges did not produce a detailed judgment each time, their reasons were inadequate and their decisions invalid. For these reasons, I do not consider that there is anything in this final ground of complaint.
- For the reasons set out in Section D above, I have concluded that the claims against GMP and WYP arising out of the claimants' initial arrest and detention are not suitable for judicial review. In any event, if I was wrong about that, I have concluded that it would not be appropriate in this case to grant permission to bring such judicial review proceedings, the claims being so weak on the material before the court as to be properly regarded as fanciful. They therefore fail at the permission hurdle.
- In relation to the searches and seizures, I have concluded in Section E above that any criticisms or complaints could be dealt with in private law litigation and that the particular claims are not suitable for judicial review. I have also concluded that any claims which might otherwise be suitable in principle for judicial review have no real prospect of success.
- For the reasons set out on Section F above, I have concluded that the principal argument that might have been suitable for judicial review, namely the criticism of the procedure on hearings for warrants for further detention, or the extension of such warrants, is hopeless, and thus the permission hurdle is not cleared. The House of Lords in Ward have made plain that the procedures that were followed here were entirely in accordance with the Human Rights Act. I have also rejected as unarguable the claimants' contentions that the actual decisions of the District Judges of 10th and 15th April were in any way unlawful and/or should have contained more detailed reasons than they did.
- Accordingly, for the reasons set out above, I refuse this application for permission to bring judicial review proceedings. The private law claims could theoretically be transferred to the Queen's Bench Division. However, in view of my conclusions as to the fanciful nature of the public law claims, it may be appropriate for the claimants to consider their position further before the actions are transferred. It must be at least possible that, if the private law actions are maintained against GMP and WYP, those defendants may seek to strike out the claims on the same or similar grounds to those outlined above. But that, at any rate, is for another day.
- The Defendants, having seen this judgment in draft, have asked the court to authorise its citation in accordance with Practice Direction (Citation of Authorities) [2001] 1 WLR 1001. In my view, any such citation should be limited to the following matters:
- I agree.
Mr Justice Coulson :
A. INTRODUCTION
"(1) A declaration that the arrest of all three claimants by the first defendant was unlawful.
(2) A declaration that the detention of all three claimants authorised by the second defendant was unlawful.
(3) A declaration that the detention of all three claimants authorised by the warrants of further detention, and the extension of those warrants, issued by the third defendant was unlawful.
(4) A declaration that the procedure under Schedule 8 of the Terrorism Act 2000 for the hearing of applications for warrants of further detention is incompatible with Article 5(4) of the European Convention on Human Rights.
(5) An order quashing the search warrants at the home addresses of the claimants.
(6) A declaration that the application by the first defendant for the search warrants for the home addresses of the claimants was unlawful and that the issuing of those warrants by the fourth defendant was similarly unlawful.
(7) A declaration that the entry search and seizures at home addresses of the claimants was unlawful.
(8) A mandatory order requiring the return of all items seized in execution of the search warrants forthwith together with any copies howsoever made or held by the defendants and their agents, and that no use be made of any knowledge obtained as a result of any examination or material unlawfully seized.
(9) Any other relief the court considers appropriate.
(10) Damages.
(11) Costs".
It should be noted that the first declaration sought in sub-paragraph (6) above, namely the declaration in connection with GMP's original application for the search warrants, is no longer pursued.
5.1 Original Arrest and Detention
(a) The principal claim against GMP is that the arrest on the 8th April was unlawful, and the principal claim against WYP is that the decisions to detain them from 8th April onwards were also unlawful, because the claimants were not told the basis on which they were being arrested and/or detained.
5.2 Search Warrants and Seizures
(b) The claim against MMC is that the decision to issue search warrants on 8th April was unlawful, because the terms of the warrants were too wide.
(c) There is also a claim against GMP that the entry search and seizures at the home addresses of the claimants were unlawful, together with a claim for a mandatory order requiring the return of all retained property.
5.3 Further Detention
(d) The only claim against SSHD is that the procedure for hearing applications for warrants of further detention under Schedule 8 of the Act is unfair and incompatible with Article 5 (4) of the European Convention on Human Rights.
(e) The related claim against WMC is that the specific decisions to grant warrants for further detention, made on 10th and 15th April 2009 were unlawful, again because of the alleged absence of sufficient information as to why the claimants were being detained.
B. THE STATUTORY FRAMEWORK
B1. Arrest
"(1) In this Act 'terrorism' means the use or threat of action where-
(a) The action falls within sub-section (2),
(b) The use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) The use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
(2) Action falls within this sub-section if it-
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within sub-section (2) which involves the use of firearms or explosives is terrorism whether or not sub-section (1) (b) is satisfied."
"(1) A constable may arrest without a warrant a person who he reasonably suspects to be a terrorist.
(2) Where a person is arrested under this section the provisions of Schedule 8 (detention: treatment, review and extension) shall apply.
(3) Subject to sub-sections (4) to (7) a person detained under this section shall (unless detained under any other power) be released not later than a period of 48 hours beginning-
(a) with the time of his arrest under this section, or
(b) if he was being detained under Schedule 7 when he was arrested under this section, with the time when his examination under that Schedule began."
B2. Periodic Review
"21-Requirement
(1) A person's detention should be periodically reviewed by a review officer.
(2) The first review should be carried out as soon is reasonably practicable after the time of the person's arrest.
(3) Subsequent reviews shall, subject to paragraph 22, be carried out at intervals of not more than 12 hours.
(4) No review of a person's detention should be carried out after a warrant extending his detention has been issued under Part III.
23- Grounds for continued detention
(1) A review officer may authorise a person's continued detention only if satisfied that it is necessary-
(a) to obtain relevant evidence whether by questioning him or otherwise,
(b) to preserve relevant evidence,
(ba) pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence.
.....
(2) The review officer shall not authorise continued detention by virtue of sub-paragraph(1)(a) Or (b) unless he is satisfied that the investigation in connection with which the person is detained is being conducted diligently and expeditiously.…
(4) In this paragraph "relevant evidence" means evidence which-
(a) relates to the commission by the detained person of an offence under any of the provisions mentioned in section 40(1)(a), or
(b) indicates that the detained person falls within section 40(1) (b).…
26- Representations
(1) Before determining whether to authorise a person's continued detention, a review officer shall give either of the following persons an opportunity to make representations about the detention-
(a) the detained person, or
(b) a solicitor representing him who is available at the time of the review.
(2) Representations may be oral or written.
(3) A review officer may refuse to hear oral representations from the detained person if he considers that he is unfit to make representations because of his condition or behaviour."
B3. Warrants of Further Detention
"31. Notice
An application for a warrant may not be heard unless the person to whom it has been given a notice stating-
(a) that the application has been made,
(b) the time at which the application was made,
(c) the time at which it is to be heard, and
(d) the grounds upon which further detention is sought.
32. - Grounds for extension
(1) A judicial authority may issue a warrant of further detention only if satisfied that-
(a) there are reasonable grounds for believing that the further detention of the person to whom the application relates is necessary as mentioned in sub-paragraph (1A), and
(b) the investigation in connection with which the person is detained is being conducted diligently and expeditiously.
(1A) The further detention of a person is necessary as mentioned in this sub-paragraph if it is necessary-
(a) to obtain relevant evidence whether by questioning him or otherwise;
(b) to preserve relevant evidence; or
(c) pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence.
(2) In this paragraph "relevant evidence" means, in relation to the person to whom the application relates, evidence which-
(a) relates to his commission of an offence under any of the provisions mentioned in section 40(1)(a), or
(b) indicates that he is a person failing within section 40(1)(b).
33.-Representation
(1) The person to whom an application relates shall-
(a) be given an opportunity to make oral or written representations to the judicial authority about the application, and
(b) subject to sub-paragraph (3), be entitled to be legally represented at the hearing.
(3) A judicial authority may exclude any of the following persons from any part of the hearing-
(a) the person to whom the application relates;
(b) anyone representing him.
(4) A judicial authority may, after giving an opportunity for representations to be made by or on behalf of the applicant and the person to whom the application relates, direct-
(a) that the hearing of the application must be conducted, and
(b) that all representations by or on behalf of a person on the purposes of the hearing must be made,
by such means (whether a live television link or other means) falling within sub-paragraph (5) as may be specified in the direction and not in the presence (apart from by those means) of the applicant, or of the person to whom the application relates or of any legal representative of that person…
34.-Information
(1) The person who has made an application for a warrant may apply to the judicial authority for an order that specified information upon which he rely be withheld from-
(a) the person to whom the application relates, and
(b) anyone representing him.
(2) Subject to sub-paragraph (3), a judicial authority may make an order under sub-paragraph (1) in relation to specified information only if satisfied that there are reasonable grounds for believing that if the information were disclosed-
(a) evidence of an offence under any of the provisions mentioned in section 40(1)(a) would be interfered with or harmed,
(b) the recovery of property obtained as a result of an offence under any of the provisions would be hindered.
(c) the recovery of property in respect of which a forfeiture order could be made under section 23 would be hindered,
(d) the apprehension, prosecution or conviction of a person who is suspected of falling within section 40(1)(a) or (b) would be made more difficult as a result of his being alerted,
(e) the prevention of an act of terrorism would be made more difficult as a result of a person being alerted,
(f) the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with, or
(g) a person would be interfered with or physically injured."
"(1B) An application for the extension or further extension of a period falls within this sub-paragraph if-
(a) the grant of the application otherwise than in accordance with sub-paragraph (3AA)(b) would extend that period to a time that is no more than fourteen days after the relevant time; and
(b) no application has previously been made to a senior judge in respect of that period.
(2) Where the period specified is extended, the warrant shall be endorsed with a note stating the new specified period.
(3) Subject to sub-paragraph (3AA), the period by which the specified period is extended or further extended shall be the period which-
(a) begins with the time specified in sub-paragraph (3A); and
(b) ends with whichever is the earlier of-
(i) the end of the period of seven days beginning with that time; and
(ii) the end of the period of 28 days beginning with the relevant time.
(3A) The time referred to in sub-paragraph (3)(a) is-
(a) in the case of a warrant specifying a period which has not previously been extended under this paragraph, the end of the period specified in the warrant, and
(b) In any other case, the end of the period for which the period specified in the warrant was last extended under this paragraph.
(3AA) A judicial authority or senior judge may extend or further extend the period specified in a warrant by a shorter period than is required by sub-paragraph (3) if-
(a) the application for the extension is an application for an extension by a period that is shorter than is so required; or
(b) the judicial authority or senior judge is satisfied that there are circumstances that would make it appropriate for the period of the extension to be as long as the period so required.
(3B) In this paragraph "the relevant time", in relation to a person means-
(a) the time of his arrest under section 41, or
(b) if he was being detained under Schedule 7 when he was arrested under section 41, the time when his examination under that Schedule began.
(4) Paragraphs 30(3) and 31 to 34 shall apply to an application under this paragraph as they apply to an application for a warrant of further detention but, in relation to an application made by virtue of sub-paragraph (1A)(b) to a senior judge, as if-
(a) references to a judicial authority were references to a senior judge, and
(b) references to the judicial authority in question were references to the senior judge in question."
B4. Searches
"1 (1) A constable may apply to a justice of the peace for an issue of a warrant under this paragraph for the purposes of a terrorist investigation.
(2) A warrant under this paragraph shall authorise any constable-
(a) to enter premises mentioned in sub-paragraph (2a),
(b) to search the premises and any person found there, and
(c) to seize and retain any relevant material found on a search under paragraph (b).
(2A) The premises referred to in sub-paragraph (2)(a) are-
(a) one or more sets of premises specified in the application….
(b) any premises occupied or controlled by a person specified in the application…
(3) For the purpose of sub-paragraph (2)(c) material is relevant if the constable has reasonable grounds for believing that-
(a) it is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation, and
(b) it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed….
(5) Subject to paragraph 2 a justice may grant an application under this paragraph if satisfied-
(a) that the warrant is sought for the purposes of a terrorist investigation,
(b) that there are reasonable grounds for believing that there is material on premises to which the application relates which is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation and which does not consist of or include excepted material…
(c) that the issue of a warrant is likely to necessary in the circumstances of the case…."
"(1) A constable may apply to a Circuit Judge or a District Judge (Magistrates Courts) for an order under this paragraph for the purposes of a terrorist investigation.
(2) An application for an order shall relate to particular material, or material of a particular description, which consists of or includes excluded material or special procedure material
(3) An order under this paragraph may require a specified person-
(a) to produce to a constable within a specified period for seizure and retention any material that he has in his possession, custody or power to which the application relates;
(b) to give a constable access to any material the kind mentioned in paragraph (a) within a specified period;
(c) to state to the best of his knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his possession, custody or power within the period specified under paragraph (a) or (b).
B5. The Decision of the House of Lords in Ward
"Section 41 of the Act… enables a constable to arrest without warrant a person whom he reasonably suspects to be a terrorist. The length of the detention that may follow on such an arrest is the subject of a carefully constructed timetable. This timetable, in its turn, is the subject of a series of carefully constructed procedural safeguards. The detained person's right to liberty demands that scrupulous attention is paid to those safeguards".
"...the procedure before the judicial authority which paragraph 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the enquires the judicial authority may wish to make to be satisfied, in that person's best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised.
As in this case, the judicial authority's need to scrutinise may trespass upon the right of the police to withhold from a suspect a line of questioning they intend to pursue when he is being interviewed. If it does, it will not be to the detained person's disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that paragraph 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit".
B6. Summary
(a) Arrests and initial detention under the TA 2000, and applications for warrants for further detention, will often take place against a background of an ongoing (and usually incomplete) investigation into the suspected commission or planned commission of a terrorist crime. This explains the repeated references in the Schedule to the analysis of evidence which is to be carried out (ie in the future).
(b) It necessarily follows that, at least at the outset of the period of detention, and possibly for some time thereafter, it may not be possible to formulate the charges with the specificity of an indictment.
(c) The TA 2000 contains a series of carefully constructed safeguards designed to prevent abuses of the power to detain without charge in such circumstances.
(d) A warrant for further detention may only be issued if the extended detention is necessary in all the circumstances.
(e) The power to exclude from the hearing the person to whom the application relates and his legal representative is designed to safeguard the interests of the detained person. Even if material is withheld there remains a right to make representations in respect of any application for an extension of detention.
(f) As a result of these provisions, there may be people who are lawfully arrested and detained under the 2000 Act who, ultimately, will not be charged with any offence.
C. THE RELEVANT FACTS
C1. Original Arrest and Detention
(a) The first claimant, Sultan Sher, was taken into custody at the police station at 9pm on 8th April. His detention was authorised "to secure and produce evidence and obtain evidence by way of questions by way of Section 41 Terrorism Act 2000".
(b) The second and third claimants were similarly detained. They were held incommunicado for the first part of their detention.
The record of these early events was apparently completed by the Custody Sergeant.
"Review of detention; review of detention carried out at cell. DP [detained person] informed that detained under section 41 of the Terrorism Act 2000. DP reminded of legal rights. DP reminded of right to legal advice. DP reminded that he is currently held incommunicado. DP reminded of right to look at a copy of the code of practice. No representations made at this time. Continued detention is authorised and necessary in order to secure and preserve evidence and to obtain evidence by questioning."
"THE TERRORISM ACT 2000
Notice to a Legal Representative of Arrest under s.41 The Terrorism Act 2000
To Ilyas Yousaf Chambers Solicitors
You are hereby informed that
On 8th April 2009 at 18.35 hours
SULTAN SHER
has been arrested under the provisions of Section 41 of the Terrorism Act 2000 as it is reasonably suspected that he is or has been involved in the commission, preparation or instigation of acts of terrorism.
He has been informed of his right, at public expense, to have a friend, a relative, a person known to him, or who is likely to take an interest in his welfare, informed of where he is detained.
He has been informed of his right to consult privately and at any time with a solicitor.
He has been made aware that under the provisions of Schedule 8, paragraph 8 of the Terrorism Act 2000…. an officer of at least the rank of Superintendent may delay these rights for up 48 hours."
This document was in a standard form issued by the Home Office called TACT Form 5.
"Your client has been arrested on suspicion of being concerned in the commission, preparation or instigation of an act of terrorism contrary to section 41 of the Terrorism 2000. Your client was informed that the arrest was necessary to allow the prompt and effective investigation of the offence. After caution your client made no reply. The arrest followed an Intelligence Operation conducted by the North West Counter Terrorism Unit."
Thereafter BD/1 identified a lengthy list of names of people under arrest at different locations (including Abid Naseer) and said that their homes and associated premises were the subject of search, recovery and forensic scrutiny. Ten properties were the subject of such searches, although it was said that this was likely to increase "as further intelligence associating individuals to various premises come to the attention of the investigative team". BD/1 said that the premises being searched "includes the address provided by your client as his home address, 89 Esmond Road, Cheetham Hill, Manchester."
"Your client should be made aware that such examinations of scenes will include searches for bomb making equipment, devices, explosives, composite material, recipes, documentary evidence, computers and IT storage devices and mobile telephones. For obvious reasons, such examinations must be undertaken with considerable care and scrutiny."
Thereafter, having recorded that the first claimant had answered the four safety questions in the negative, BD/1 concluded:
"Your client will be asked questions relating to his access and association to various properties and individuals subject of this investigation. Your client will be asked about computer usage and methods of communication but most significantly, he will be asked questions relating to his knowledge or any information he might have in relation to the commission, preparation or instigation of acts of terrorism."
C2. Searches
"Correspondence, leaflets, posters, magazines, subscription forms, identification documents, travel documents, passports, maps, sketches, plans, telephone records, accommodation details, literature/books, vehicle documents in relation to use/control, correspondence in relation to other properties/lock ups/garages and their keys, receipts for purchased goods, records of religious/political beliefs, handwritten notes, receipts, invoices, order forms, delivery notes, adverts, travel information land sea and air. Computers, computer equipment, PDA's software, hardware, digital storage, faxes, printers, scanners, copiers, printer paper, DVDs, CDs, CD Roms, video/audio cassettes, memory sticks, mobile phones, sim cards, evidence of purchase of mobile phones and registration and billing, credit cards, top-up cards, cash, cheque books, money transfer documents, financial documents, cameras/video equipments, photographs/negatives, communication devices, chemical or pre cursor materials, memorabilia/ornaments/flags, items to conceal or transport items, any item believed to be connected to terrorism…"
"Authority is hereby given for any constable, accompanied by such person or persons as are necessary for the purposes of the search, to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search the premises, and any person from the date of issue of this warrant and to search the premises, and any person found there, for the articles in respect to which the application was made and to seize and retain relevant material found during the said search."
(a) Attempts to identify suitably crowded places;
(b) Reconnaissance trips to research crowded places;
(c) Conspiracy;
(d) Chemicals and explosive materials;
(e) An attack between the 15th and 20th April 2009.
C3. The Warrant of Further Detention
"Both yourself and your legal representative may make written or oral representations and attend a hearing, subject to the provision of Schedule 8 para 33(3) of the Terrorism Act 2000, which provides that the judicial authority may exclude you or your legal representative from any part of the hearing. Your legal representative has been informed by written notice of his, and your, right to attend the hearing, subject to the provision mentioned above. Police are seeking a Warrant of Further Detention for the period of seven days beginning with the time of your arrest because it is necessary in order to obtain or preserve relevant evidence or pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence relating to the commission of an offence or offences under the provisions of Section 40(1)(a) or which indicates you are a person who falls within the provisions of Section 40(1)(b) of the Terrorism Act 2000."
(a) Gave some details about Operation Snowcat (subsequently renamed Operation Pathway);
(b) Stressed that "this investigation contains intelligence and evidence that supports the premise that [Mr Sher/Mr Sharif/Mr Farooq] through significant association with other detained persons is conspiring to plan a terrorist attack within the UK";
(c) Gave details of all the property seized in the searches so far, a total of 1000 exhibits, including 9 motor vehicles, sim cards, computer towers, computer hard drives, laptops and the like;
(d) Described the prioritising of the relevant evidence, with a reference to "the speediest method to delivery is employed to provide the data needed for interview."
"On application by a police officer of at least the rank of Superintendent, and having taken account of representations made by or on behalf of the person named above concerning the grounds upon which further detention is sought, I am satisfied that in accordance with paragraphs 30 and 32 of Schedule 8 to the Terrorism Act 2000, that:
(i) the application was made during the period mentioned in Section 41(3) of the Terrorism Act 2000;
(ii) the investigation in connection with which the person is detained is being conducted diligently and expeditiously;
(iii) there are reasonable grounds for believing that the further detention of the person named above is necessary to obtain relevant evidence whether by questioning him or otherwise or to preserve relevant evidence, or pending a result of an investigation or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence…"
In this way the claimants' detention was extended until the end of 15th April 2009, (ie 7 days after they had first been arrested).
C4. Subsequent Interviews
• Text messages between all detainees
• Recovery of maps outlining designated areas of interest where significant numbers of the public would be expected to frequent
• One detailed hand written document depicting a militaristic zone abroad
• Access to and their movements around the security industry including access to airports
• Mobile telephone use
• International travel and purpose including visits to Pakistan and the purpose of travel
• Suspected reconnaissance at public locations, including the Trafford Centre, the Arndale Centre, and Liverpool Docks.
• Meetings of significance.
• Money transfers abroad.
"Evidence exists linking your client to persons currently in custody. Direct evidence exists of the detainees meeting on a number of occasions both in Liverpool and Manchester. Mobile telephone pictures exist illustrating further associations between those persons arrested on this operation.
The purpose of this briefing is to broadly outline the police investigation and its strong belief that preparatory acts for an attack plan were in place. A significant amount of exhibits are still currently being assessed and may form part of further pre-interview briefing."
Again, BD/4 provided the basis of interviews with the claimants and again the answers were in 'no comment' form.
C5. The Extension to The Warrant of Further Detention
• "The outcome of forensic searches and examinations in respect of premises is still ongoing, at this moment in time it is anticipated that all scenes should be completed by late evening on Saturday 18th April 2009.
• The outcome of fingerprint and other forensic examination on items recovered on the scenes are currently ongoing.
• A number of mobile phones and sim cards have been recovered associated to Mr Sher, the forensic examination has been completed on some but is still ongoing on others.
• The analysis of the product of the forensic examination is continuing.
• The forensic examination of computers and other date storage is being conducted and the results awaited.
• To obtain relevant evidence by questioning: this includes asking Mr Sher to account for the possession of articles or his attendance at premises or places. The police believe there is a necessity to Mr Sher for the purpose of questioning in relation to evidence held by the police, so that the SIO are satisfied that all the questions which are considered relevant to obtaining accurate and reliable information regarding the offence(s), have been put to Mr Sher and allowed him an opportunity to give an innocent explanation or alibi. This also allows the investigation team to test if the explanation is accurate and reliable against evidence and intelligence held by the Police. In accordance with Code Section 11.6 of the Codes of Practice.
• To correlate accounts provided by detainees and question with regard to the comments made by each other.
• For the result of forensic examination of exhibits and their links to other crime scenes waits.
• Financial investigations to identify purchase of material or items relevant to the conspiracy is ongoing.
• THE INVESTIGATION TO OBTAIN RELEVANT EVIDENCE IS BEING CONDUCTED DILIGENTLY AND EXPEDITIOUSLY."
(a) Operation Snowcat was the most significant counter terrorism investigation since Operation Overt (the airlines plot). The North West Counter Terrorism Unit had never undertaken an investigation of this size.
(b) Searches had taken place at the various properties (11 in all) and that only one scene had been completed and released. Three were still awaiting results of forensic results and seven scenes were still being searched.
(c) A total of 3,887 exhibits had been recovered to date. Priority was being given to exhibits such as documents, computers, mobile phones, sim cards, data storage devices and the like.
(d) A large number of computers were being searched as well as DVDs and CDs.
(e) 127 phone or sim cards had been recovered and were being forensically examined, some with large memories.
This written note of the oral application concluded by seeking the extension to the warrant, on the grounds that it was necessary to obtain relevant evidence by questioning, to preserve relevant evidence, and pending the result or analysis of any further evidence.
C6. Subsequent Events
"Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. His also suspected of possessing articles considered to be of use in terrorist activity."
BD/5 also identified various maps found with locations (such as the Arndale Centre) highlighted, and photographs of other public places in the North West, including Liverpool Docks, Liverpool Cathedral, the Trafford Centre in Manchester, as well as the Arndale Centre. There was also a reference to a mobile phone which belonged to Abid Naseer which was found to contain the first claimant's telephone number.
C7.Developments Elsewhere
(a) Whilst a further four days detention (until 22nd April) was justified, by then matters might have developed significantly.
(b) If any further application was to be made at that stage, then a document was required setting out the state of the investigation and the substance of the allegations put to each detainee.
(c) 'Those charged with investigating difficult and complex cases will need to keep an eye on the clock and the time limit. 28 days is the maximum, but this does not mean that it will be given. The real prospect of evidence emerging needs to be much, much clearer. Although not binding, this is a marker. Turning a plausible hypothesis into an investigation-based case has to be balanced with human rights and proportionality.'
C8. Aftermath
(a) Paragraphs 41-46, which referred to the warrants, searches and arrests and made express mention of these proceedings;
(b) Paragraphs 59-82, which dealt with detention and arrest law. At paragraph 64, Lord Carlile noted that "at some point between arrest and the end of his detention period the suspect must be told the offence or offences of which he is suspected". At paragraph 65, he continued "the point at which the suspect has to be given this information varies according to the facts and circumstances of the case, and has been the subject of discussion between the police and the CPS in the context of this operation";
(c) Paragraphs 83-85, which were concerned with the legality of the arrests. At paragraph 85 Lord Carlile noted that neither District Judge Workman nor Blake J had ruled that the original arrests were unlawful but they had both made it clear that continued detention would be likely to become unlawful "if the suspects were not told clearly the offences they were suspected of committing and the reasons for the suspicions leading to their arrests";
(d) Paragraphs 86-94, which were entitled 'Effect and implications of the legal position'. In paragraph 86, Lord Carlile noted that the police were surprised to be advised by the CPS about the law relating to arrest, and what Blake J had referred to as 'the evidential test'. He noted that "their understanding and experience was that it was enough to show that more time was needed to convert intelligence into evidence and that the enquiry was being progressed diligently and expeditiously."
(e) In summarising this part of his review, at paragraph 89 Lord Carlile said:
"Given the long history of arrest law as described above, and the provisions of ECHR, I am surprised that the police did not anticipate that they would be required to clarify the evidential basis for the arrests before the judge during a period of detention. In relation to arrest and charge, it is a matter for the courts as to what can properly be categorised as 'promptly' in a particular context: it is likely to be case specific and therefore elastic, but in every case there must be a point at which continued and (particularly) extended detention, far beyond the normal periods for non-terrorism cases, will be subjected to a requirement to set out the evidential basis."
D. THE CLAIMS AGAINST GMP and WYP ARISING OUT OF THE ORIGINAL ARREST AND DETENTION ON 8th APRIL 2009
D1. The Principal Issues
D2. The Appropriate Forum
(a) The Competing Submissions
(b) The Authorities
"…. it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities… I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons."
(c) The Likely Issues
"The point at which the suspect has to be given this information [the offence or offences of which he is suspected] varies according to the facts and circumstances of the case, and has been the subject of discussion between police and the CPS in the context of this operation."
Later, at paragraph 89 he said:
"In relation to arrest and charge, it is a matter for the Courts as to what can properly be characterised as 'promptly' in a particular context; it is likely to be case specific and therefore elastic, but in every case there must be a point at which continued and (particularly) extended detention, far beyond the normal periods for non-terrorism cases, will be subjected to a requirement to set out the evidential basis".
(i) Ground 3(a)
(ii) Ground 3(b)
(iii) Ground 3(c)
(d) Analysis
80 Secondly, these claims involve potentially complex disputes of fact. The disputes canvassed before us may involve some issues of primary fact but – as I have already explained - they will also involve nuanced considerations of fact and degree, in particular relating to when and why, according to the facts and circumstances of the case, detailed information was or should have been given to the claimants. As noted in paragraph 72 above, such fact-sensitive issues are wholly inappropriate for judicial review proceedings.
D3. Are There Arguable Grounds for Judicial Review against GMP or WYP?
(a) The Issues
85. Now let us assume that I am wrong as to the appropriate forum, and that the claims against GMP and WYP arising out of the claimants' arrest and initial detention are or may be appropriate for judicial review. The issue would then become whether, on the material before the court, permission should be granted to the claimants to seek judicial review of the decisions to arrest and detain, on the basis that no-one properly directing himself as to the relevant law could reasonably have reached that decision (what might be called the typical Wednesbury[1] argument). The test on the permission application is, of course, whether on the material before the court, the claimants have an arguable case which merits an oral hearing: see Sharma v Brown-Antoine [2007] 1 WLR 780 at paragraph 14. I deal with that issue below.
(b) The Law
"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him"
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
"Where, however, the open material consisted purely of general assertions and SIAC's decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5.4 would not be satisfied."
In AF it was held that this represented the law of the United Kingdom. Lord Hope said:
"... the consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him..."
(c) Analysis: The Lawfulness of the Decision to Arrest
(d) Analysis: The Lawfulness of the Decisions to Detain
(e) The Particular Criticisms
(a) Grounds 3(a) and 3(b) are only available to the claimants if it is arguable that the first review should have occurred at the time that detention was first authorised, rather than subsequently. I reject that submission as being unarguable; a review of detention cannot take place until detention itself has commenced: see paragraph 75 above.
(b). Ground 3(c) is a criticism that the decision to hold the claimants incommunicado was not taken by an officer of sufficient rank, contrary to paragraph 8 of Schedule 8, which requires the officer to be of at least the rank of Superintendent. As noted, that is a good example of a factual dispute which the court cannot determine. However, for the purposes of judicial review, it is unnecessary for the court to decide this point. This is because I accept the submissions of Mr Edis that, even if this allegation was proved, it would not render the detention unlawful. At most, it would render an aspect of it unlawful, such that damages for that particular breach may be recoverable, but it would not justify granting permission for judicial review. That is a matter that can be dealt with, if appropriate, in any private law proceedings. I should have thought, speaking for myself, the damages in consequence of such a claim would be nominal.
(f) Conclusions
E. THE SEARCHES
E1 The Issues
E2 Suitability For Judicial Review
E3 The Width of the Warrant (Ground 4(a))
E4 The Legality of the Searches (Ground 4(c))
E5 Seizures (Ground 4 (b))
"Judicial review is not a fact-finding exercise and is an extremely unsatisfactory tool by which to determine, in any but the clearest cases, whether there has been a seizure of material not permitted by a search warrant. In my judgment a person who complains of excessive seizure… should not, save in such cases, seek his remedy by way of judicial review but should rely on his private law remedy, when he will have a tribunal which will be able to hear evidence and make findings of fact unfettered by Wednesbury principles… Judicial review has only disadvantages and no advantages when compared with the private law remedy."
I consider that these observations are equally applicable to the allegations relating to the searches and seizures in the present case.
F. THE WARRANTS OF FURTHER DETENTION UNDER SCHEDULE 8 OF THE 2000 ACT
F1. The Compatability Argument
F2. Analysis: The Compatability Argument
F3 Analysis: The Factual Situation
F4 The Claim against WMC: The Lack of Justification
F5 The Claim against WMC: The Absence of Stated Reasons
G. CONCLUSIONS
a) The continuing importance in detention cases of the decision in Ward, notwithstanding A and AF;
b) The proper interpretation of the phrase "on one occasion" when used in a search warrant;
b) The proper demarcation in arrest/detention cases between a claimant's private law remedy and his or her public law remedy (if any).
Lord Justice Laws:
Note 1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. [Back] Note 2 This view is confirmed by the recent decision of the Supreme Court in SSHD v AP (The Times, 17.6.10), the judgments in which were handed down after the hearing in the present case. [Back]