QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL
B e f o r e :
| NEZAR HINDAWI
|THE PAROLE BOARD
|THE SECRETARY OF STATE FOR JUSTICE
||First Interested Party
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
||Second Interested Party
WordWave International Limited
A Merrill Communications Company 165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr B Collins (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Ms K Gallafent (instructed by Treasury Solicitor) appeared on behalf of the Interested Parties
Miss A MacDonald (for the Claimant) and Mr R Mehta (for the Interested Parties) appeared at the read out judgment
Crown Copyright ©
She noted in her report as follows:
"The three hours I spent with him were filled by him venting at me in an angry rage, which effectively prevented any dialogue. He saw me as a representative of a corrupt self-serving system and lectured me at length on how one person's terrorist is another person's freedom fighter. I understand from reports that he has behaved this way with others.
As a result, for the past two years Mr Hindawi has been for me the benchmark for an extremist who remains staunch after twenty-two years of imprisonment.
However, the extra information contained in his PB Rec and my greater knowledge now enables me to place this outburst in context ...
In my view his outburst and his ambivalence about cooperating with the authorities are likely to be due to the frustration he experiences on two fronts. Firstly, his own testimony is seen as inherently unreliable because of his status as an extremist offender and whatever he says can be accepted or not depending on the position of the person making the assessment, which from his perspective renders his cooperation futile and places him in a position in which he cannot help himself. Secondly, I believe that he is angry with himself for placing himself in this position. I think it is quite likely that, as he has said, he now recognises that what he planned to do is heinous and is relieved that he was thwarted... "
The written report concludes with the following assessment:
"Mr H will always remain sympathetic to the Palestinian cause, which in itself is not a cause for concern. It is unrealistic therefore to look for signs of complete disengagement, but this does not mean that we cannot make a judgment about the likelihood of desistance. In my view there has been a reduction in the factors associated with a readiness to offend, which together with decreased capability makes it unlikely that Mr H will engage again in violence. I think therefore that it would be both appropriate and compassionate at this review to grant Mr H parole."
"Mr Hindawi's risk assessment centres around his potential to become politically active in the future and involve himself with groups who are involved in politically motivated terrorist activity...
His risk can only ultimately be tested when he is released into the community. He will on release be deported to Jordan. In the unlikely event that he is released in England he will be subject to Mappa arrangements and a parole licence and would be subject to a robust case risk management plan."
The report continues at paragraph 11:
"The risk posed by Mr Hindawi would be due to future involvement in politically motivated terrorist activity. Mr Hindawi was involved with the PLO from the age of 12yrs and committed the index offence when he was 32yrs old. He was also involved with the Jordanian Revolutionary Movement. Should he become involved with any pro-Palestinian or anti-Israeli group in the future then the risk will increase significantly."
The final recommendation of the offender manager in thereport was given at paragraph 12 in the following terms:
"As stated in my previous report I am unable to provide the Parole Board with a viable risk management plan in Mr Hindawi's home country of Jordan. I am therefore unable to confirm how Mr Hindawi's risk will be managed following deportation and I am therefore not in a position to make a positive recommendation for release."
"However, she identifies the risk that once in Jordan you may again become politically active and involve yourselves with groups who are themselves engaged in politically motivated terrorist activity. Ms Clarke does not envisage your taking part physically in acts of terrorism, but has in mind the possibility of you encouraging others, perhaps making speeches to that end or giving interviews supporting terrorist activities. This risk factor was to Ms Clarke the sticking point. She thought in those circumstances it was very difficult to support release: the index offence was so serious and the potential consequences of any repetition so devastating that there had to be some clear information about monitoring of your behaviour and activities in Jordan."
"10.1 If you were to be released to live in the United Kingdom the Panel considers that your risk of committing further offences during the 4½ years of your licence period would be manageable. However the question for the Panel is whether if you are deported to Jordan the risk you pose of committing any further offence that might cause serious harm during that 4½ year period is at an acceptable level. On the balance of probabilities the Panel finds that you would not be subject to monitoring or surveillance. There would be no checks on what you were doing, with whom you were associating or how you were behaving.
10.2 You are an intelligent, articulate man with extreme political views. You were trained as a journalist and appreciate the power of words and images. You are by no means a broken man. Despite your physical disabilities, even in the course of the hearings and after 25 years in prison your passion and beliefs about the wrongs of your situation and that of the Palestinians were clearly apparent. The Panel has no confidence that if released you would be able to control that passion. The Panel considers that if you were given the opportunity you would be only too ready to give voice to your beliefs to any audience to you, whether on TV or radio or the press and in so doing might encourage acts of terrorism. In this respect the Panel has in mind the evidence of your behaviour when interviewed by Ms Lloyd and indeed flashes of such behaviour in your evidence. There has been no testing of your assertion that you would not react in that way nor can there be in the light of your PTSD, so that the Panel are simply reliant on your own untested evidence, about which the Panel has considerable reservations.
10.3 Your evidence about your plans on return to Jordan is, in the view of the Panel, unsatisfactory. The Panel accepts that there may be cultural reasons why your family is not prepared to co-operate with any assessment of the suitability of the proposed living arrangements. That said, your plans in the judgment of the panel lack realism and may well not be achieved. If that were to happen - and in the absence of positive assessments of the arrangements there is every likelihood that such will be the case - then you may become unhappy, disappointed, stressed and angry. In such circumstances and given the volatility of the political situation in the region the probability of your succumbing to a return to encouragement of terrorism would clearly increase.
10.4 In determining you application for parole the Panel has considered all the matters set out in the Directions to the Parole Board referred to in Paragraph 1 of this letter. The Panel has considered your background, in particular your support for and involvement in terrorism from a young age, an involvement continuing on any view for many years. The nature and circumstances of the original offence and other offences at or about the same time clearly demonstrates a very substantial static risk. The comments of the sentencing judge and the Court of Appeal demonstrates the utmost gravity of what you did. The Panel accepts that there is now no risk to any victim of the index offence but concludes that there does remain an unacceptable risk to persons outside the jurisdiction who might be harmed by acts of terrorism inspired in part by your acts of encouragement. Your attitude and behaviour in custody has in recent years been acceptable, as has your attitude to other inmates though you have made little if any positive contributions to prison life. You have taken no steps to address offending, though of course the Panel acknowledges that this is not your fault in any way. The Panel further has taken into consideration your PTSD and the representations made on your behalf.
10.5 In determining your application the Panel must focus primarily on the need to protect the public, whether in the United Kingdom or elsewhere, from serious harm and the prevention of further offending. In your case there is a massive static risk. To direct your release before the expiration of your sentence on parole to be deported to Jordan requires the Parole Board to be satisfied that the risk of your committing an offence that might cause serious harm during the time you would otherwise be in custody is acceptable. The period of time involved in your case is 4½ years. In all the circumstances and in particular the Panel's finding that on the balance of probabilities you would not be subject to monitoring or surveillance, there would be no checks on what you were doing, with whom you were associating or how you were behaving, the Panel was not satisfied that the risk of future involvement with an extremist group leading to further terrorist offending was reduced to an acceptable level and could be safely managed over such a lengthy period. In those circumstances parole is refused."
"It is no long necessary for the protection of the public that the prisoner should be confined."
It found that the prisoner continued to represent a danger to women anywhere in the world. The prisoner submitted that "the public" should be narrowly construed to mean those in the United Kingdom and his subordinate submission was that he would not pose a risk to such women as he would be deported to Jamaica. His submissions were rejected and a broad meaning was given to the words "the public". Butler-Sloss LJ pointed out the responsibilities of the Parole Board should not be confined specifically to the public in the United Kingdom. The decision in White was quoted with approval by Lord Bingham of Cornhill in R(Clift) v Secretary of State for the Home Department  UKHL 54 (reported at  1 AC 484 37). In that same case, the House of Lords concluded that the previous practice whereby prisoners facing deportation were not eligible for parole was disapproved. This was held to amount to unlawful discrimination between the treatment of a foreign and domestic prisoner otherwise in the same situation.
(i) He had significantly changed his attitude to his offence during the term of his sentence.
(ii) He opposed violence and terrorist acts connected with the Palestinian cause.
(iii) He would be returning to Jordan and abide by its laws.
(iv) The Jordanian State has a functioning system of intelligence and criminal law enforcement.
(v) As the previous Panel had found, his activities would be monitored and subject to acts of oppression if he were considered to be a threat to Jordan.
Mr Owen submitted to this court that it had never occurred to the claimant or his team that the Board would find the claimant a risk in Jordan but not in the United Kingdom.
Release in the United Kingdom
(i) It is unfair to treat him differently from a person in otherwise the same situation who cannot be deported either immediately for whatever reason or at all.
(ii) It is a disproportionate interference with the claimant's right to liberty to continue to detain him when, if deportation was deferred for the period, he could be released on licence without risk to the public.
(iii) It is inefficient use of scare prison resources to continue to detain a person who could be released without risk on stringent licence conditions.
(iv) Insofar as supervision on licence contributes to a prisoner's further rehabilitation in the community, it is irrational and discriminatory to deprive the claimant of the benefit of such rehabilitation before he is finally removed from the United Kingdom pursuant to the deportation order by June 2013.
"The Secretary of State can confirm that if the panel decided to release Mr Hindawi he will be detained under immigration procedures until such time as travel arrangements can be made and he can be deported to Jordan. Details of this are contained in the UKBA proforma at pages U259 - U261 of the dossier. Mr Hindawi is not opposing deportation. UKBA have the necessary documentation to facilitate his departure, other than an emergency travel document which can be issued by UKBA staff at the prison. There is no reason why he cannot be safely removed to Jordan. We have today, confirmed with the UKBA that these details are correct."
Such a position was not challenged by the claimant before the Parole Board, indeed he agreed to it. The terms of the January 2012 letter did not raise a late challenge to those decisions or seek in terms to reopen them. The essence of that letter was in the following terms:
"Given the Panel's findings, and the live evidence at the hearing on 7th December 2011, it would plainly be possible for the Secretary of State, and/or the Board, to request that certain restrictions be placed upon Mr Hindawi, if this is considered to be crucial, and for the Jordanian Government's response to be communicated, and for technical release to be directed with release to take place pending the formulation of arrangements considered to be suitable."
The claimant was thus seeking a further opportunity to adduce evidence about either monitoring or arrangements in Jordan but as the Board explained in its response, he had had an ample opportunity to do that previously.
"Thirdly, and most importantly, Mr Hindawi will be subject to monitoring and surveillance by the Jordanian authorities. Pursuant to the arrangements set out in the (Memorandum of Understanding) the FCO 'may consider it appropriate to discuss [Mr Hindawi's] case with the Jordanian authorities'. Such discussions took place between the UK Government and the Jordanians in relation to the case whose details were provided to the panel. The discussions were dealt with in the witness statement of the Director of Defence and Strategic Threats at the FCO lodged in judicial review proceedings in that case which was copied to the panel with the permission of the Secretary of State. The evidence available to the panel is that if Mr Hindawi is deported to Jordan after such discussions have taken place, he will then be subject to surveillance by the Jordanian authorities."
That conclusion was not binding on the subsequent Panel but might be considered a rational starting point for subsequent consideration of the issue.
"1. It is of obvious importance for the Panel to have the fullest available information on the likely extent of controls, monitoring, surveillance and supervision of Mr Hindawi if he were released on parole and deported to Jordan. The Divisional Court at Paragraph 106 of its judgment noted: '...it was well within the power of the Secretary of State to obtain much more information as to what could be done by way of surveillance and supervision in Jordan.' It is accordingly directed as follows:
"Following consultation with the Jordanian Authorities the Secretary of State must provide details of the supervision, monitoring, controls and surveillance that would be deployed in respect of Mr Hindawi if he were to be released to the Jordanian jurisdiction. The Secretary of State must be in a position to offer a view as to whether those measures are, in his opinion, sufficiently robust to manage any perceived risk. Further, the Secretary of State must inform the hearing whether Mr Hindawi is 'a person of interest to the Jordanian government' and if so, the meaning and relevance of such a description."
"The Report dated 29 September 2011 does not comply with the direction. The Panel does not expect to be provided with sensitive details relating to the methods of security. However, the Panel does expect the Secretary of State to offer a reasoned and considered assessment of the likely level of supervision, monitoring, controls and surveillance if Mr Hindawi was deported to Jordan and in particular whether those measures are, in his opinion, sufficiently robust to manage any perceived risk. The Report is conspicuously silent on those matters. If it be the case that the Secretary of State considers that the risk is so minimal that no measures of supervision are required he should make that clear unequivocally. If he considers that some measure of supervision etc is required, then what level does he consider appropriate and what is his assessment of the likelihood of such measures being implemented in Jordan? What, in the assessment of the Secretary of State, is the likelihood of Mr Hindawi being permitted to leave Jordan and what, if any, additional risks would arise were he permitted to do so?"
"I have no reason to believe however that the role and capability of the Jordanian security services will have been impaired and I am confident that they will for their own reasons be prepared to keep a close eye on Hindawi given his Syrian connections and Amman's traditional distrust of Damascus."
Dr George, in a material part of his report of 27 March 2009, was quoted as saying:
"If Mr Hindawi was deported to Jordan he would be subjected to close monitoring by the Jordanian security authorities which are efficient and which collaborate closely with their Israeli, British and American counterparts."
The panel noted his update of 4 September 2001:
"It remains my firm opinion that if Mr Hindawi was deported to Jordan he would be subjected to close monitoring by the Jordanian security authorities."
"What will happen to Mr Hindawi on return to Jordan?
I should repeat at this point that neither I nor anyone else in the FCO knows how the Jordanian authorities will react to Mr Hindawi's return. He has been out of the country for 25 years and for most of that time they will not have been giving his case any consideration. They have yet to respond to requests for information on the subject of what measures they might take following his return. The British Embassy in Amman understand that the question is still under discussion between various parts of the Jordanian governmental system. I find this highly credible (having myself discussed with the Jordanian authorities the implications of the planned return of Abu Qatada). The question is fraught with difficulty for them. Mr Hindawi's attempted act of violence was directed against an Israeli passenger aircraft. Jordan has for many years had an official modus vivendi with Israel, but this is not universally popular in Jordan. There are sections of Jordanian society which still express support for Abu Qatada, despite the fact that he has been found responsible for attacks which killed numbers of Jordanian citizens. The attitude of these sections of society towards Mt Hindawi could range from indifference to vociferous support; for the Jordanian authorities, deciding on how best to handle his return is, to say the least, a thorny question. It is indeed perfectly possible that the matter is, as the Embassy have reported, 'still under discussion'. (It is also possible that the Jordanian authorities have not responded to our questions because they take the view that what happens to one of their citizens on their territory is their business alone, and they consider it inappropriate for us, in addition to imposing this difficult situation on them, to ply them with questions on what they are going to do about it. On balance I think this interpretation less likely: there has been no hint of such feelings in the exchanges that have taken place, and the Jordanian response to our approaches on DWA cases has been a co-operative one.) The fact is that only the Jordanians themselves could speak authoritatively on what will happen to Mr Hindawi; they have not done so; what follows is therefore no more than informed speculation, which I offer the Panel on the basis that it may be just a little more helpful than nothing.
The key judgment to be made by the GID, therefore, will be: does Nezar Hindawi pose a threat to the security of Jordan? What happens to him thereafter will depend crucially on the view they take on this. That in turn will depend on what he says to them, and what impression he makes on them by his demeanour. My working hypothesis would be that, if he has satisfied the Parole Board more than once that he no longer poses a threat to the security of the United Kingdom, the Jordanian authorities will conclude that he does not pose a threat to Jordan. The Jordanian authorities might also want to assess whether he might wish to initiate further action against Israel, his original target. Again for the same reasons, my working hypothesis would be that they would conclude that he would not.
That being so, it is in my opinion unlikely that the Jordanian authorities would keep Mr Hindawi under surveillance. In these difficult times there will be many other people in Jordan whom they do assess to pose security threats, and while they do indeed, as other witnesses have said, have efficient security and intelligence services at their disposal, their resources are limited, and under pressure."
There is no transcript or agreed note of the evidence given at the hearing but in this application Mr Owen's skeleton argument, apparently drawing from his solicitor's note of evidence, quoted passages of the oral evidence, the accuracy of which was not disputed. It is sufficient to note that they include the following:
"My evidence is that he may be monitored but the FCO can't say the Jordanians would do it and it is unlikely that they will."
A little later on in response to questioning:
"There has not been any risk assessment [of Mr Hindawi] by the FCO. It is not a matter for the FCO. There haven't been any relevant intercepts or relevant information... If we don't perceive a threat, they [the Jordanians] won't either."
"If Jordan doesn't do anything it's because they don't believe him to pose a risk?"
To which Mr Layden is recorded as replying:
"Yes ... if we have information that someone is a threat we have the obligation to share that with Jordan."
The follow-up question was:
"We can take the absence of information as an indication that the UK doesn't consider him a threat?"
Mr Layden agreed and added:
"It would be our duty, if we thought he posed a threat to the UK or Israel we would have informed the Jordanians. We haven't done so... The Home Office is advised by the Security Services to determine if someone poses a threat. ."
"9.8 The Secretary of State declined, despite the directions given by the chair of the Panel, to offer any view on any of the issues to which the directions related. To the surprise and disappointment of the panel the Secretary of State was not prepared to comment on the evidence of Mr Layden or even to offer a view on the existing risk you pose. The Secretary of State simply repeated the submissions made to the Administrative Court and had nothing to add. The Panel found that response unhelpful and defensive. It is of course for the Parole Board to determine the application but the Secretary of State is a party to the proceedings and has available to him or her the whole panoply of government. The Secretary of State chose to adopt a position which the Panel regarded as cynical, political in origin, very unhelpful in practice and at odds with the whole purpose of involving the Secretary of State in the parole process.
9.10 From all that evidence the Panel is satisfied that if you are released on parole and deported to Jordan you are likely on arrival there to be questioned by the security services. There are undoubtedly available to the Jordanian authorities powers of detention, monitoring and surveillance which they may use in appropriate circumstances. However, the panel concludes on all the evidence available that such powers are unlikely to be deployed in your case if the Parole Board has not determined that the risk you pose of committing any further offence that might cause serious harm is at an acceptable level and such as to justify release."
(i) The claimant's case as pleaded by experienced leading counsel does not focus on procedural irregularity in failing to explore this question with the witness, but irrationality in failing to apply the answers in the overall conclusion. The Board has therefore not had the opportunity to respond to this concern of lack of due inquiry into this sub-issue.
(ii) I reject the claimant's pleaded case that Mr Layden's answers meant that the Board was bound to find that the claimant would be monitored on return to Jordan. The contrary is the case. Because he would probably not be perceived of as a risk, he would probably not be closely monitored thereafter after entry.
(iii) The importance of monitoring was plain to the claimant throughout the proceedings and he knew that the case of other then residual risk was the very risk assessment made my his offender manager, Ms Clarke, of spontaneous re-association with terrorist ideology and expression. I can see no reason why the claimant of his own motion, through his advocates, did not explore the question with Mr Layden and at least inquire whether Mr Layden agreed with Dr George's assessment that preserving good relations with Israel was a matter of concern to the Jordanians for the reasons possibly why they would act.
(iv) A new hearing before a fresh Panel on whether the claimant can be released on licence is imminent. It will consider the question again. As is apparent from the history of this case, previous decisions of differently constituted Panels do not bind subsequent Panels. The next Panel will therefore be free to explore for itself the question of what the response of the Jordanian authorities would be if the claimant was to re-associate with Palestinian terrorists or those who supported terrorist action against Israel. If anyone thought it was useful for them to see it, it could indeed have my remarks in this judgment before them to consider as well.
(v) It seems to me that the assessment of the reaction for the Jordanians to any expressions of incitement of violence would be important not merely to the monitoring question at the heart of the present application but also to the question of whether the claimant is likely to lose self-control on return and revert to terrorist incitement despite his present statement of opinions. This question is not live in this application as permission was refused on this ground but if the available information is that the Jordanians would respond to repressive measures then this itself may deter the claimant from so expressing himself. I do not accept Mr Collins' submission that the Jordanian evidence suggests that nothing would be done until the damage in the form of risk to the public had been done.