England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 May 2010

Mr Justice COLLINS :

1. On 29 October 2009 the appellant, BX, was served with a non-derogating control order for which I had granted permission. The order contained what might be regarded as relatively usual restrictions which, so far as particularly material, included a condition of residence at an address in North London with a curfew totalling 16 hours, a prohibition on permitting visitors to enter the premises without prior agreement of the Home Office and a prohibition on meeting outside the premises anyone other than his wife and child or legal representative without Home Office agreement. The order was served on 30 October 2009 and in the covering letter the appellant was informed that he could not remain in his current employment as a conductor with trains running in London but that he could remain in employment if it was in effect limited to an office job or a job at one particular station. There was an area imposed outside which he could not go.
2. On 10 November 2009 the appellant was served with details of modifications which were to be made to the control order with effect from 13 November 2009. The crucial modification which has given rise to the appeal which is before me was a requirement that he move to an address in the West of England. There were some relaxations to other requirements, in particular there was no restriction on visitors to the premises and the curfew was relaxed to one of 12 hours which was to operate in two periods between 8 p.m. and 7 a.m. and between 1 p.m. and 2 p.m. He was required by each order to wear a tag and to report to the monitoring company when he entered the premises at the end of a curfew period and when he left at the beginning. Each order also identified one individual with whom he was forbidden to associate or communicate, namely one Bilal Berjawi.
3. On receiving the notification of the proposed modifications on 10 November 2009, the appellant lodged a claim for judicial review seeking an interim order preventing his relocation until he had an opportunity to have a court hearing. The Secretary of State produced written submissions on 11 November 2009 in which it was averred that judicial review was inappropriate since the Act provided for an appeal against a non-consensual modification and that in any event pre-emptive interim relief was impermissible. The remedy lay in a speedy appeal hearing.
4. The Secretary of State's submissions pointed out that it was intended to require relocation from the outset but that I had indicated that I would not agree to the inclusion of such an requirement. There were two reasons for this. First, the actual address had not been identified and secondly, the inclusion of such a requirement would mean that the controlee had no ability to challenge it before it was put into effect. Section 7(2)(d) of the Prevention of Terrorism Act (PTA) provides that the Secretary of State may at any time:-

"make to the obligations imposed by … an order any modifications which he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism related activity."

Section 10(1)(b) of the PTA provides for a right of appeal against a modification to an obligation in an order made without the controlled person's consent.

Section 10(5) provides:-

"The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order (whether on a renewal or otherwise) …. is to determine whether the following decision of the Secretary of State was flawed –

(a) in the case of an appeal against a modification, his decision that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism related activity."

It is to be noted that it is open to a controlled person to apply for modification of a particular obligation and, if his application is refused, he has a right of appeal against the refusal (s.10(3)). The courts' function on such an appeal is essentially the same as that on an appeal under s.10(1)(b), namely whether the obligation as imposed is necessary for the purposes identified in s.10(5). Section 10(6) provides that in determining any such appeal the court 'must apply the principles applicable on an application for judicial review.' In Secretary of State for the Home Department v MB [2007] QB 415, handed down on 4 May 2010, the Court of Appeal decided that in these cases the court must go beyond what might be regarded as the usual limits on its powers of judicial review and decide on the material put before it for itself whether the obligation imposed was necessary and, where any Article of the ECHR is in issue, whether there is in the circumstances a breach of any right under any such Article.

5. On 11 November 2009 I refused to make an interim order or to grant an interim injunction. I said that the remedy was by way of a speedy appeal since I was satisfied on the material I had seen that the requirement to move to the West of England was based on strong grounds. Following a renewed application the following day seeking an oral hearing, I maintained my refusal by an order in writing of 12 November 2009. I then said that I thought that my previous suggestion (in Secretary of State for the Home Department v BH) that judicial review was a possible route was wrong and that the court had power if an appeal was brought to grant interim relief. However, that would only very rarely be appropriate since it would usually be necessary to consider closed material which would involve the need to appoint a special advocate and consider, whether in order to comply with the provisions of Article 6 of the ECHR disclosure of any such material was required. This would inevitably take time and would mean too that the court would not properly deal with the necessity for any such relocation before the relocation took place. Thus any pre-emptive relief should be limited to a case in which there was material which suggested that there was a misuse of the powers conferred by the Act. I gather that my order has been appealed. I am told that the Secretary of State accepted before the Court of Appeal that an interim order could be made. Judgement of the court has not yet been given. [Since this judgment was written, the Court of Appeal has given judgment in the appeal referred to in paragraph 5. It decided that, although judicial review was possible, in practice it would not be the correct procedure to adopt save in exceptional circumstances. Rather, an appeal should be lodged and an application made, if considered appropriate, for an interim injunction to prevent relocation until the matter could be properly considered.]
6. Section 3 of the PTA requires that there be a hearing in relation to a control order 'as soon as reasonably practicable after it is made'. Regrettably, it often takes a considerable time before such a hearing can take place since a special advocate has to be appointed and consideration has to be given to whether there has been sufficient disclosure or gisting of material which the controlled person must be aware of in order to be able to mount a defence to the imposition of the order. In this case, that process has only been completed on 29 April 2010 with a view to a hearing fixed to commence on 9 June 2010. The date of this fixture is of some considerable importance as will become apparent in the context of this appeal.
7. The appellant is a Somali by ethnic origin who came to this country as a refugee in 1992 when he was 12. He is now a British citizen. It is said that he has travelled to Somalia for terrorism related activities, particularly attending a terrorist training camp with his associate Bilal Berjawi. He has also been involved in arranging financial and other support for Al-Qaida associates in East Africa. This support includes enabling associates to travel to Somalia to pursue terrorism related activities there. The appellant had flown from London to Hargeisa in Somalia via Dubai and Nairobi in January 2007. He had then returned to Dubai and on 7 February 2007 had been detained at Nairobi airport and deported back to Dubai. He had in his possession three brand new mobile phones and US$4,600 in cash. While being held in custody, he tried to destroy by swallowing it a piece of paper containing telephone numbers. He had no sensible explanation for possession of the mobile phones. In April 2008 he was stopped by police and found to be in possession of £1000 in cash. The assessment made was that the cash he had in Nairobi and when stopped in London was for Al-Qaida associates. Berjawi, with whom he admittedly was friendly and so was an associate, went to Kenya with one Sakr in February 2009. They aroused the suspicions of the manager of the hotel at which they were staying in Mombasa. They went to Nairobi and stayed there with one Najid Mansour. Police raided the premises and Berjawi and Sakr were in due course deported. A laptop belonging, it was said, to Mansour was found at the premises. It contained extremist material including encouragement of jihad and instructions on making car bombs. When interviewed on return to this country, Berjawi and Sakr did not tell entirely the same story.
8. It is accepted that for the purposes of this appeal I must accept that the control order was properly made and that the appellant is properly suspected of involvement in terrorism related activities. This means that I must accept the description of Berjawi, Sakr and other associates who have subsequently been identified as extremists. In reality, the matters I have summarised disclosed to the appellant are prima facie sufficient to justify the decision to make the order. Whether or not when the matter is considered at the hearing to be held on 9 June that will be shown to be the case remains to be seen. The result is that I have to consider whether against that background the relocation out of London to the West of England is necessary. If it is not necessary for purposes connected with preventing or restricting involvement by the appellant in terrorism related activity, it must be set aside. But even if it is regarded as necessary, it may be set aside if Article 8 of the ECHR is breached. It is obvious that there is an interference with Article 8 rights (the right to respect for family and private life). Thus the question is whether that interference is justified by Article 8(2), which provides:-

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety … for the prevention of disorder or crime … or for the protection of the rights and freedoms of others."

If the interference is shown to be necessary, it will be lawful. But Article 8(2) imports two extra requirements. First, the action must not be arbitrary and secondly, it must be proportionate. Thus even if regarded as necessary for the purpose of the PTA, it may on given facts be disproportionate. Accordingly, proof that it can properly be regarded as necessary for the purposes of the PTA does not by itself establish that it falls within Article 8(2), although it is obviously a highly material factor. Further, the Article 8 rights of the appellant's wife and child must also be considered. While the need for the interference, if established, will be a very powerful factor in deciding that it is proportionate even against his family, a balance must be struck in deciding on proportionality.

9. Relocation a substantial distance from London is said to being needed to assist in preventing the appellant from travelling abroad because it will disrupt his extremist activities with his London based extremist associates. It will also assist in preventing his ability to join in planning or carrying out any terrorism related activities. It is said that the appellant has been discussing matters at face to face meetings with those associates, often in the open air. It is said that he and Berjawi had attended the same terrorist training camp in Somalia and the assessment made is that his absence from London has made it likely that, as it is put, 'the operational tempo and capability of the group of extremists based in London will be degraded by removing [his] operational role from London.'
10. Since the control order was served on him it is alleged that the appellant has breached this order on a considerable number of occasions. In December 2009 he was arrested and has been charged on indictment with 15 counts of such breaches. This has led to his remand in custody. He applied for bail but it was refused on the ground that he would, by virtue of the control order, have to go to the West of England and it was likely that he would commit further offences. I am told that the district judge seemed to be prepared to grant bail, obviously with very severe restrictions, if he were able to live at an address which was available in London. I cannot of course deal with bail: that is now a matter for a judge at the Central criminal Court if a bail application is made. But if I am persuaded that the relocation to the West of England should be set aside, whether generally or for a limited period, an application for bail can be made on the basis that he will be able to live in London. It is said this should remove any objection based on the likelihood of the commission of further offences, namely breaches of the control order.
11. The appellant's wife, whom he married in April 2009, lives in a council flat in London. She has a son, now aged 3, to whom the appellant is step father. His biological father does not see him and so the appellant has taken over the role of father to him. In a statement made on 28 November 2009, she says that she and the appellant had not been living together, albeit he visited regularly each day, because she was living in a two bedroom flat with her two sisters and her son and it was thought to be inappropriate for him to join them. She was then 3 months pregnant and it was planned that her sisters should have 3 months to find alternative accommodation and the appellant would then join her. She is having a difficult pregnancy. In a second statement made some 3 weeks after the appellant moved to the West of England on 13 November 2009, she describes visits which she found very difficult because a journey of 3 hours on a bus made her feel very sick and was expensive. She could not, she says, imagine moving to the West of England and she would not contemplate losing her council flat. In a third statement, which, albeit unsigned and undated, I accept as a true indication of her evidence, she describes three visits to the West of England. She felt isolated there and stood out because she chose to wear the Niqab. This led, she said, to some rude comments and staring at her. She felt there was hostility: in the area in which she lives in London the wearing of the Niqab is not so exceptional. Miss Harrison has made the point that she has an understandable and reasonable fear that she may be attacked or suffer ill-treatment and will, certainly suffer discrimination and attract apparent hostility and all this means that she will be afraid to go out on her own. It will also create real problems for her in looking after her children, particularly when the older child reaches an age when he would go to a nursery or to school. Miss Harrison also says that it was not reasonable to expect her to go to the West of England on three days notice. Since her husband has been in custody she obviously would remain in London. While I entirely accept that for her there are real concerns about living in the West of England, she has not suffered ill-treatment there. Hard though it may be, her experiences there and her fears cannot be said by themselves to mean that it is unreasonable to expect her to join the appellant there and for them to pursue their family life there.
12. So far as loss of her council flat is concerned, the Home Office has offered to assist in making representations to the local authority to try to ensure that she retains the ability to return to that or a similar property in due course if the control order is not upheld or the Secretary of State decides that relocation is no longer necessary. So far, no steps have been taken to follow up that offer.
13. The first five counts alleging breaches of the control order occurred when the appellant was still in London. Two involved tampering with the monitoring equipment. The third alleged that he returned home after he should have done and told lies about the reason for his lateness. The fourth and fifth related to failures to telephone the monitoring company when he returned to the premises. He said he had forgotten to do so. The first two could be seen as an attempt to test the monitoring equipment. The potentially serious breaches at the West of England include the alleged use of a computer terminal for some 50 minutes and a subsequent visit to an internet café. He also visited another firm which deals in the sale and repair of PCs, laptops and accessories. He also was seen to visit a business which buys and sells mobile phones.
14. On 2 December 2009 Pitchford J ordered that there should be additional disclosures in order that there would be compliance with Article 6 of the ECHR. There was some such disclosure on the basis that undertakings were given by the appellant and his legal team that no disclosure of the information should be made to anyone. The disclosures in question involved the identification of some of his extremist associates and some details of the general allegation that he had adopted anti-surveillance techniques. Since they are to be treated as closed for the purposes of any judgment, I shall not refer to them further in this open judgment.
15. I am entirely satisfied that removal from London was properly regarded as necessary. Subject to matters which I shall deal with relating to the imminent birth of the appellant's son (the anticipated date is 20 May), I do not think that to relocate would be disproportionate. While I sympathise with the concerns expressed by the appellant's wife, they do not in my judgment show that it would be unreasonable to expect her to join her husband out of London. The West of England has been chosen because it is a suitable distance from London to help prevent meeting with his extremist associates.
16. Miss Harrison argued that the relocation to the West of England could not in the circumstances reduce the chances that the appellant would abscond or avoid him associating with those said to be extremists. While she accepted that there was a greater ease of access to international airports and other means of leaving the country from London, the West of England has its own airports and large cities were not far away. The obligations in the West of England did not place any restriction on visitors and so his friends and associates could visit him. Indeed, some had. Thus communication and association was not inhibited; quite the contrary, it was, she suggested, easier because of the relaxation of the obligation. In any event, she said that there was no evidence that the appellant had done anything to suggest he was preparing to abscond and the breaches of the control order alleged against him did not indicate in any way that absconding was being prepared or was intended. Further, he had not breached the undertaking given not to disclose the matters produced as a result of Pitchford J's order.
17. In addition, the appellant was offering to consent to far stricter obligations if he were allowed to return to London. A very tight area was identified (which included no mosque) within which he must remain. Curfew times could be extended. He would agree not to contact any individuals the Secretary of State wished to identify and not to use any public transport. All this was said to mean that he could be more closely kept under observation and so his ability to engage in any terrorism related activity would be restricted. He denied that he ever had previously been engaged in any such activity nor did he intend to do so in the future.
18. Absconding or engagement in the activities alleged against him involves the assistance of associates. However tight the restrictions, if he is intending to breach them it is easier to do so in London. His associates cannot be prevented from coming to the area in which he is allowed out of curfew to be. Whether or not visits can be made to the West of England, it is more difficult to make arrangements at a distance. Thus I do not think that Ms Harrison's arguments carry weight. While I take the point that any adverse effect on the group of extremists with which he is said to be involved which may be relied on to justify location out of London has in the circumstances of this case to take account of the appellant's detention on remand since last December, that may not continue after his trial or if he is granted bail.
19. As I have said, the appellant's wife is due to give birth to their son on 20 May. That he should be allowed to be present at his birth is recognised but, unless he is granted bail, the prison service will have to allow compassionate leave for that to happen. I am sure that it should be allowed. Miss Harrison submits that he should be permitted to remain with his wife and their new son for certainly a fortnight and preferably at least until the hearing of the substantive case for the maintenance of the control order which is, as already stated, due for 9 June. It is an important aspect of his and his wife's culture that the father should be able to be present to bond with his son and to look after the other child while his wife concentrates on caring for the new born baby. It is important therefore in order to respect their Article 8 rights that the whole family should at least at that time be present together. Miss Harrison makes the point that the analogy with immigration cases is not a true one since in them the party to be removed has no rights to remain here. There is for British citizens an absolute right to live together where they wish and any fetter on this right must be fully justified. This is material to his general relocation requirement and, although I recognise its importance, I do not in the circumstances of this case take the view that relocation is disproportionate. But when one has regard to the special factors surrounding the birth, it has a more powerful effect.
20. The appellant will, it is said, be aware that he is likely to be under 24 hour surveillance. Even if he is not, he will believe that to be the case. He will know that any breach of an obligation, whether of bail or of the control order, will inevitably lead him straight back into custody. He will also be letting his wife down and causing her great distress if he does not remain with her. If he is only allowed to be in London for a short period, the chances of him being able to arrange to abscond, even if he wanted to, or to communicate with his associates are remote and so the serious interference with in particular his wife's and his children's, human rights would not be proportionate.
21. The Secretary of State points to the numerous breaches of the order which must to the appellant's knowledge have run the risk of him being charged with alleged criminal offences and placed in custody. The belief is that his involvement in terrorism related activities and his support of jihad will lead him to give less weight to his commitment to his wife and family. Terrorism will, it is believed, prevail and in particular it is feared that he will take the opportunity to arrange to leave the U.K. Since if he did he would be unable to return without facing immediate custody, the belief is that his family life could be maintained somewhere other than in the U.K.
22. This is a very difficult decision. I am tempted to conclude in mercy to his wife that he should be given the chance to be with her. Miss Harrison suggests that it would be particularly harsh to allow him to attend the birth and then remove him for the crucial period after the birth. I recognise that it would be harsh and that there is a severe interference with his and particularly her human rights. But I am afraid I am persuaded that the Secretary of State's concerns are justified and it is too dangerous to permit him to be in London even for a short period. Thus the interference is proportionate and so I dismiss this appeal.