England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of proceedings under The Prevention of Terrorism Act 2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 May 2011

The Hon. Mr Justice Simon :

Introduction

1. Sections 1(1) and 2 of the Prevention of Terrorism Act 2005 (the Act) vest the Secretary of State with a power to make control orders, which impose obligations on an individual,

… for purposes connected with protecting members of the public from a risk of terrorism.

The circumstances in which these non-derogating control orders may be made are set out in section 2 of the Act.

2. By section 1(3),

The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.

3. The obligations include (section 1(4))

…

(e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence;

…

(g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom.

4. Section 3 of the Act sets out the powers and duties of the Court in the supervision of non-derogating control orders.
5. The powers to modify control orders are set out in section 7 of the Act. By section 7(2),

The Secretary of State may, at any time …

…

(d) Make to the obligations imposed by such an order any modifications which he considers necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity.

6. On 1 February 2011 the Appellant (CD) was served with a non-derogating control order, for which Mitting J had given permission (under section 3 of the Act). The control order was served on CD on the same day and required him, by obligation 2.1, to reside at a particular address located within the N17 postal area in North London. He was also notified that he would be relocated to an address in a Midland city which would be notified to him no earlier than 4 February. The operative period of the control order was 12 months, expiring on 31 January 2012.
7. On 3 February, CD's request that he be allowed to remain living in London was refused, and he lodged a Notice of Appeal to the High Court.
8. In a letter dated 5 February CD was served with modifications made to the control order under section 7(2)(d). The modification prescribed the particular address in the notified Midland city at which he was to reside (see modified obligation 2.1). I shall refer to this address as the specified place.
9. At a hearing on 8 February Mitting J directed that there should be a relatively short time-table for the appeal against the modified order. At a further hearing (before Davis J) on 24 March the Respondent (the Secretary of State) was directed to make further disclosure to CD pursuant to CPR 76.29.
10. On 19 April the Secretary of State was informed that the material she had relied on when making her initial decision to impose the control order, included incomplete information about one of CD's associates. The additional information was included in an amended Open Security Service Statement served on 15 April; and the Secretary of State has since confirmed that if she had been in possession of the full information she would not have changed the decision, either to make the control order or to relocate CD outside London.
11. On 5 May a short statement from CD was approved by him for service; and it was agreed in the course of the hearing that this statement would be signed by him.
12. This is the hearing of the appeal, which is confined to the issue of relocation.

The statutory framework for statutory appeals

13. There is no significant issue between the parties as to the approach of the Court on an appeal under section 10.
14. Section 10(1)(b) allows a person who is the subject of a control order to appeal against the modification of a control order which has been made without the consent of the person who is the subject of the order (referred to as 'the controlled person'). A similar right of appeal exists where an unsuccessful attempt has been made to the Secretary of State for the revocation or modification of the control order (see section 10(3)). In each case the Court's task is to determine whether the decision, that the modification was necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity, was flawed (see section 10(5)). In determining this question the Court applies the principles applicable on a claim for Judicial Review (see section 10(6)).
15. An appeal under section 10 of the Act does not involve close consideration of the question whether the Secretary of State had reasonable grounds for suspecting that the controlled person is or had been involved in terrorism-related activity, or was entitled to consider it necessary for purposes connected with protecting members of the public from a risk of terrorism (the criteria set out in section 2(1) of the Act for the making of non-derogating control orders). This is because these issues will be considered at the substantive hearing under section 3(10), which is now fixed for 11-15 July 2011.
16. The position was summarised clearly by Keith J in AM v Secretary of State for the Home Department [2009] EWHC 572 (Admin) at [6]

… the Court is not entitled on an appeal under section 10(3)(b) of the Act (or an appeal under section 10(1)(b) of the Act for that matter) to question either the reasonableness of the grounds for suspecting that the controlled person has been involved in terrorism-related activity, or the necessity to make a control order against him to protect the public from a risk of terrorism. Since that is the effect of section 10 of the Act, the corollary is that the court should not – save perhaps in an exceptional case – proceed on the basis that anything more than reasonable grounds for suspecting the controlled person of involvement in terrorism-related activity exists, because that would open up the hearing of an appeal of this kind to a consideration of the wide-ranging issues which arise when the control order and the obligations imposed under it are reviewed under section 3(10) of the Act.

17. Nevertheless both sides accepted that since the Court is concerned with issues of proportionality, it will have to look at material whose primary relevance will be to the determination under section 3.
18. In Secretary of State for the Home Department v MB [2006] EWCA Civ 1140 Lord Phillips CJ giving the Judgment of the Court set out what is accepted to be the proper approach to a section 10 appeal, although the case was concerned a challenge under section 3.

[63] Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligation that it is necessary to impose may depend on the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands on those resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance.

[64] The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasburg court, see for instance: Secretary of State for the Home Department v. Rehman [2001] UKHL 47, [2003] 1 AC 153; Republic of Ireland v. United Kingdom (1978) 2 EHRR 25.

[65] Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous and intrusive and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order 'with the consent of the controlled person' envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations.

See also AM v. Secretary of State for the Home Department (referred to above) at [7], and AV and AU v. Secretary of State for the Home Department [2008] EWHC 1895 (Admin) Mitting J at [7]

19. In the light of these cases, it is convenient to summarise the steps which the Court needs to take.

i) The court will engage in a scrutiny of the 'necessity' for the particular obligation imposed on the controlled person to which the appeal relates. The test of 'necessity' needs little further elaboration: it plainly goes further than reasonableness or utility, see also Keith J in AM at [7]

ii) The scrutiny must be intense, in other words, closely focused on the decision to impose the obligation in the light of the relevant material put before the Court. The Court applies the principles applicable on an application for judicial review, see s.10(6); and if, as will usually be the case, the obligation under scrutiny affects Convention rights, the applicable principle will be proportionality, see MB at [63] and AV and AU at [8].

iii) However, since the Secretary of State is better placed than the Court to decide what measures are necessary to protect the public against the activities of a terrorist suspect, the court will accord a degree of deference to the Secretary of State's assessment of what is necessary. The Court's restraint is a reflection of the fact that the Secretary of State is making evaluative and predictive judgements of risk, see for example the speech of Lord Hoffmann in Secretary of State for the Home Department v. Rehman (referred to above) at [48] and [57].

iv) The Court will also need to have in mind that it has been provided with evidence which has been withheld from the controlled person and his legal team on the grounds of national security, and that the Special Advocate is necessarily inhibited from taking instructions on the material which he has seen.

The Open Security Service submission to the Secretary of State on relocation

20. The Open Security Service Submission in support of relocation was dated February 2011, and subsequently amended in April 2011. I set out below a summary of its contents.
21. CD has dual British and Nigerian nationality. He was the leading figure in a close group of Islamic extremists based in north London, which included TM and MS. There was an assessment that the group was involved in planning attacks, probably using firearms.
22. CD was present at meetings and a training camp organised by Muhammed Hamid, including those attended by the 21/7 bombers in May 2004 at Baysbrown Farm in Cumbria. He is assessed to have moved to Syria in late 2005/early 2006; and to have undertaken extremist training while he was there. He returned to the United Kingdom on 23 April 2009. The circumstances of his return to this country, as well as the contents of the Port Stop interview on his return to this country, are assessed as indicating that he holds strong Islamist extremist views and has a very high level of security awareness. Since his return CD has made several attempts to procure firearms for potential attack plans, and has held covert meetings with TM and MS in relation to the attack plans. On his return to the United Kingdom and since then he has again been assessed as having a very high level of security awareness.
23. A control order is said to be necessary to restrict CD's ability to meet with his associates TM and MS in order to further the group's attack plans, his ability to procure firearms, and his ability to carry out an attack in this country.
24. So far as relocation is concerned, the assessment is that it is necessary to relocate CD outside Greater London in order to prevent him from conducting covert meetings with his north London based criminal associates. It is considered that a move within Greater London would be insufficient; and that the distance between Greater London and the specified place would make it harder for CD to communicate with his extremist associates and engage in terrorism-related activity.
25. MS was arrested in late October following a Department of Work and Pensions investigation into a housing benefit fraud, following which (in late November 2010) he moved from north London to Rochdale. It is noted however, that MS could return to London at any time; and the assessment is that the movement of MS from north London does not significantly reduce the risk that if CD resides in north London, he would be able to continue to engage in terrorism-related activities.

The Secretary of State's evidence on relocation

26. The witness statement of Susan Hadland, made on behalf of the Secretary of State on 28 April 2011, deals with a number of points relevant to the issue of relocation. The evidence was however not responsive to evidence produced on behalf of CD which (as noted above) did not emerge until 5 May. So far as material, Ms Hadland's evidence deals with (a) family visits to the specified place, and (b) CD's request to live nearer to his family in London
27. As to family visits, Ms Hadland notes that prior to his relocation CD lived with his wife and 2 children in London; and is now required to live in a two bedroom property in the specified place. This property would allow his wife and children to live with him should they choose to do so. CD is permitted to have visitors to his property without seeking permission from, or providing advance notice to, the Home Office. He is permitted to meet his wife and children outside the property, but must ask for permission to meet any other person by prior arrangement outside the property, except in limited circumstances.
28. Ms Hadland also refers to CDs enquiry (dated 28 February) about the availability of alternative accommodation in London nearer to his family but away from north London. He was informed that for reasons of national security he would not be permitted to live in London and that there were no available Home Office properties which were nearer to London than the property in the relocation place.

CD's evidence

29. In the statement of 5 May lodged on CD's behalf he exhibits a letter dated 28 January 2011 from Deputy Assistant Commissioner Osborne of the Metropolitan Police (Counter Terrorism Command) setting out that there was currently insufficient evidence to establish a realistic prospect of conviction against CD for a terrorist offence.
30. He describes the contrast between living in north London close to his immediate and extended family and friends before 4 February, and the circumstances in which he is now placed: living by himself in the specified place within a confined geographical area from which he is not permitted to move. He says he has never had any friends in the area and has not been able to make any to date.
31. He draws attention to the travelling time and cost when his family visit him: a coach journey of up to 3 hours costing up to £40, together with further taxi expenses whether travelling by coach or train; and a car journey of approximately 2½ hours by road. He contrasts this with the limited resources of his friends and family.
32. He also refers to a lack of privacy and his inability to lead a normal life which has caused 'a massive rift' with his family due to the difficulty in having normal family relations when his family are able to stay with him at the property in the specified place. He complains that the distance from his family prevents him carrying out his normal family responsibilities towards his parents and his two young children.
33. In summary he makes three points.

First,

Since the relocation and imposition of the Control Order, the impact on my family and [me] has been devastating in terms of the enormity of what has happened in terms of separation from my family, both psychologically and physically.

Secondly,

I wish to be relocated back to London preferably to my home address.

34. Thirdly,

If my request is not granted, consideration should be given to the provision of a travel subsidy for my family and friends to visit on a reimbursement basis

The submissions on behalf of CD

35. Mr Burton QC submitted that the relocation obligation in the Control Order was plainly a violation of CD's Article 8 rights (the right to respect for a private and family life). In these circumstances it was for the Secretary of State strictly to justify the degree of interference; and that the Court was bound to take into account the impact of the interference on the Article 8 rights of CD's family. CD had been relocated far from his home and away from his immediate and extended family.
36. He drew attention to the number of obligations in the control order which were not the subject of challenge. He submitted that these measures were sufficient, and therefore were no more than was necessary, to protect the public. He criticised what he described as the 'flawed reasoning' of the Secretary of State. Once it had been acknowledged that MS had moved to Rochdale from London, it was irrational to relocate CD to a place which was nearer to Rochdale than London.
37. To the extent that the Secretary of State placed reliance on CD's association with Muhammed Hamid and his attendance at the Training Camp in May 2004, Mr Burton submitted that CD had not denied the former or been arrested or charged in relation to the latter. He criticised (with some justification) the subjectivity of some of the judgments of the Officer who conducted the Port Stop interviews, and he pointed out that CD had not sought to conceal his extreme Islamist views.
38. Why, he questioned, was it necessary to remove CD when he would if he remained in north London in any event be subject to a large number of restrictive obligations? What was it that made relocation necessary in February when he has been the subject of close attention since 2004.

The submissions on behalf of the Secretary of State in relation to the open material

39. Ms Giovannetti QC submitted that the material in relation to CD up to his return from Syria in April 2009 was important background material.
40. Since then there was evidence of CD's numerous covert meetings with MS and TM up to October 2010, which were assessed as being for the purpose of enabling the three of them to develop the group's attack plans. There had been several attempts to procure firearms since his return to the United Kingdom from 7 named north London-based criminal associates. There was the assessment in relation to these matters that CD showed a very high level of security awareness; and that these matters strongly supported the Security Service assessment that it was necessary to remove CD from Greater London for the purpose of protecting the public from the risk of terrorism.
41. The move of MS to Rochdale in late November 2010 was entirely voluntary and he could visit or return to live in London at any time, and if CD were permitted to return to London this would increase the risk of his re-engagement with MS and consequently their collective involvement in terrorism related activity.
42. It was accepted that the relocation interfered with the Article 8 rights of CD and his family; but the circumstances were such that the interference was proportionate. The property at the specified place was large enough to accommodate his immediate family (his wife and his two children); and it was striking that there had been no evidence from his wife, as there had been in another relocation case, BX v Secretary of State for the Home Department [2010] EWHC 990 (Admin) where there was a potent evidence on the effect of relocation on the claimant's wife, which weighed heavily with Collins J, see [11-12] and [22]. In these circumstances Ms Giovannetti submitted that the effect on the Article 8 rights of CD's wife and children were less compelling than they otherwise might be.
43. Ms Giovannetti further submitted that the costs of travel had been exaggerated and that, in any event, CD's family could visit him when he came to London on legal visits.

Discussion on the open material

44. As stated above, it is common ground that for the purposes of this appeal I must accept that the control order was properly made and that CD is properly suspected of involvement in terrorism-related activities.
45. It is also material to consider the protections provided by the other unchallenged obligations in the control order. These include electronic tagging, a home curfew from 17.00 to 09.00, an obligation to report on the first occasion that CD leaves the property after the end of the curfew period and on the last occasion on return before the curfew begins, a requirement to report daily to a police station, restrictions on those permitted to enter or remain in the property at the specified place, restrictions on meeting people outside the property by prior arrangement and communicating with TM and MS in any circumstances, restrictions on communicating with anyone outside of the United Kingdom without proper agreement and restrictions on leaving a confined area of the relocation place. There are further requirements to allow searches of property to be carried out and restrictions on the use of mobile telephones. CD is permitted to visit a mosque of his choice within the permitted area to which he is limited, but no other. He is also forbidden from accessing the internet or entering any premises with internet facilities without prior permission, as well as from having any interest in more than one bank account. There are restrictions on the transfer of money and entering ports, railways or airports, and an obligation to surrender any passport or travel documents. There are restrictions on entering training programmes and academic courses and obligations to inform the Secretary of State of any employment undertaken.
46. Three initial points may be noted. First, these amount to a large number of restraints which extend far beyond any usual bail conditions. On any view they provide a comprehensive interference with CD's rights under Article 8 (as well Articles 10 and 11). Secondly, the appeal does not relate to any of these obligations, save in so far as they necessarily and specifically relate to obligation 2.1. Thirdly, as the Secretary of State has recognised, an obligation to move from one's home to a relatively distant place, and to live for at least 12 months in a property which is not one's own and which has been chosen by someone else, is a substantial infringement of Article 8 rights.
47. In her witness statement of 1 February Ms Hadland set out the basis on which the relocation place had been chosen: the need for relocation, the personal and family circumstances of CD, suitable locations (including the facilities needed by CD), the nature of available properties and the experience and capacity of the local police force to manage the control order. Consideration had also been given to the impact of relocation on benefits, employment and education (paragraphs 14-15), on the family (paragraphs 16-18) and on CD's social and religious needs (paragraphs 20-21). It was the impact of relocation on his immediate family which had led to the obligation to live in a two bedroom house in the specified place. Such a property was considered suitable in view of the fact that CD's two children were under school age, on the basis of standards used in the provision of social housing.
48. At paragraph 21 of this witness statement she stated,

The Secretary of State recognises that relocating a person can have a detrimental impact on his social life. However it is assessed that that if [CD's] wife chooses to locate to [the relocation place] with the children the impact would be less onerous. The Home Office will ensure that there are mosques within [CD's] proposed geographical boundary.

49. In paragraph 9 of the later witness statement of 28 April, dealing with the appeal on relocation, Ms Hadland recorded that CD's wife and children had visited him regularly following his relocation although they had not moved into the property; and that he had had other visitors whom he had met outside the property following requests to and permission from the Home Office.
50. As already noted there is nothing in the evidence as to why CD's wife has not joined him. It may be that she does not wish to live with CD in the specified place in the present circumstances, or it may be that it has been considered that it would be detrimental to CD's appeal if she and his children were to move there. On these matters it would be unwise to speculate. However, two matters may be noted. First, there has been no evidence from CD as to why she and the children cannot move. The children are not of school age. Secondly, it is clear from the evidence that both CD and his wife lived far from north London for 3 years in Syria. This is relevant to the inherent difficulties CD and his family might face in living away from family, friends and home in north London.
51. There is evidence which supports the conclusion that CD has a background and training which would lead to a justifiably held fear that he would engage in terrorist-related activity based on his strongly held extreme Islamist views. That by itself would not be enough to justify the relocation obligation. However, since his return he has endeavoured to obtain firearms on a number of occasions from a number of associates for the purposes of putting into effect a planned terrorist attack, has held covert meetings with associates in relation to plans to use the firearms as part of this planned attack and has displayed a very high level of security awareness. The latter point is relevant both to his intentions and to his ability to evade the attentions of those who have a duty to prevent him putting his plans into effect in so far as they are able.
52. The fact that MS presently resides in Rochdale is of little weight. He is free to travel to London whenever he wishes.
53. In the light of this material, and subject to two points, I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist related attack. While he is living in London there is a significant risk that he will take part in terrorism-related activities, notwithstanding the high level of protection implicit in the obligations which are not under challenge. In coming to this conclusion I recognise that the interference with CD's rights is substantial.
54. A point arose during the course of Mr Burton's argument about the possibility of relocating CD to a house in the Greater London area other than north London. Such a suggestion was strongly resisted on behalf of the Secretary of State. An important consideration in the choice of the specified place was that it was away from London where CD has criminal and terrorism-related contacts. It is clear from the statements of Susan Hadland that considerable care has gone into the choice of the specified place. It has a Muslim population above the average in England and Wales, there are Mosques nearby and potential places of employment. There is evidence that there are no other properties presently held in London or elsewhere. Although this evidence cannot be determinative since a relocation place may be plainly inappropriate, where this conclusion does not arise, there are dangers in the Court being drawn into an intense discussion and determination as to what would be a more appropriate property or a more appropriate location. This is an area where proper deference should be given to the decision of the Secretary of State. Nevertheless, in the light of one of Mr Cory-Wright's submissions, I consider that this is a matter which CD should be permitted to argue (should he wish to do so) at the s.3(10) hearing.
55. The first of the two points to which I have referred in [53] is my view that the interference in CD's Article 8 rights can and should be abated by the Secretary of State reimbursing at least a proportion of the costs of CD's family in travelling to the specified place. The point was raised in CD's statement of 5 May and was pursued by Mr Burton in argument. Having taken instructions on the point Ms Giovannetti said that her client would be willing to consider a travel allowance if details were given about the relevant family members. In my view this is not sufficient. The reason why CD's family have to travel to the relocation place has nothing to do with them, and I can see no reason why the costs of visits should fall on them. I make it clear that I am not to be understood to reaching a conclusion that a travel allowance should be made in every case of relocation. However, in the present case I am satisfied that this would provide a proportionate and appropriate way of reducing the onerous and isolating effect of the relocation obligation, and that this is the type of variation envisaged in the case of Secretary of State for the Home Department v. MB (see above) at [65].
56. The second point concerns consideration of the closed material. If this were to throw doubt on the effect of the open material it would plainly undermine any conclusions reached at this state.

Conclusion

57. Having considered the closed material I have concluded that it does not undermine the open material; and that, on the contrary, it provides cogent evidentiary support for the contentions advanced on the basis of the Open material.
58. For the above reasons and applying the test in sections 10(5)(a) and (7) of the 2005 Act, I have concluded that the Secretary of State's decision was not flawed. Accordingly the appeal is dismissed.