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
		19/05/2016

Mr Justice Collins:

1. This case concerns a control order imposed on GG on 31 July 2006 (following the quashing of an order made in November 2005) followed by annual renewals until it was revoked on 11 June 2010. The initial imposition of the order has to be considered by the court pursuant to requirements contained in section 3 of the Prevention of Terrorism Act 2005 and in that the Secretary of State for the Home Department (SSHD) is the applicant and GG the respondent. But there are also appeals by GG against a renewal and against one of the obligations contained by way of modification in the order. It is convenient to entitle this case as I have, albeit in PTA/46/2008 and PTA/45/2009 GG is the appellant and SSHD the respondent.
2. The 2005 Act was repealed by the Terrorism Prevention and Investigation Measures Act 2011 (the TPIM Act) on 15 December 2011. Further, as I have said, the control order imposed on the appellant came to an end on 11 June 2010. It may seem strange that proceedings are continuing against that order. Schedule 8 of the TPIM Act provides by paragraph 3(1) that the repeal of the 2005 Act does not 'prevent or otherwise affect' the holding of any hearing in relation to the imposition of a control order or any appeal against any renewal of a control order or any obligation contained in it. But paragraph 3(2) provides, so far as material, that proceedings which may continue to be heard after the repeal of the 2005 Act may not have a purpose other than determining whether a control order, the renewal of a control order or an obligation imposed by a control order should be quashed. The 2005 Act by s.10(7) enabled the court on an appeal either to quash renewals or obligations or to give directions to revoke the order or any obligation. It is obvious that the power to direct revocation is superfluous in a case such as this since there is no order or obligation which can be revoked.
3. I must now set out the history of the control order against GG. The delay in reaching a final decision is to say the least unfortunate, particularly as it has been necessary to consider factual matters which go back to 2002 and 2003. Further, the final renewal of the order was in July 2009, now some 6½ years ago. Some, but by no means all of the delay is explained by the history of the proceedings which commenced when the order in question was made in July 2006 and which included an appeal lodged in 2008 against a particular obligation and another appeal lodged in 2009 against a renewal which was not within the original proceedings in relation to the imposition of the order and renewals up to and including that in July 2008.
4. In October 2005 GG together with another Kurd from Iraq known as NN was arrested at his address in Derby and three others were arrested in Croydon. All five were alleged to have been involved in terrorist related activities involving the planning of attacks possibly in this country. No evidence which could justify prosecution was found and so all five were released. It was thought that the police had taken action before any plans could be put into operation. On their release, they were put into immigration detention with a view to removal, but it was soon appreciated that that was not possible. Accordingly, control orders were made against all five. Those orders were all quashed in June 2006 because they contained obligations including an 18 hour curfew which were considered to breach Article 5 of the ECHR. The Court of Appeal upheld Sullivan J's decision to quash. The SSHD obtained leave to appeal to the House of Lords, but that appeal was not heard until July 2007 and the decision was not given until 31 October 2007. In the meantime, the SSHD decided to renew the orders against GG and NN but not against the others, one of whom had left the country in June 2007. The House of Lords by a majority upheld the decision to quash, the case being known as JJ and others v. SSHD [2008] 1 AC 385. They considered that a curfew of 18 hours was too long to be consistent with the retention of liberty and so breached Article 5. There is a live issue before me whether the overall length of the curfew which has been imposed during the subsistence of the control order coupled with other requirements relating in particular to where GG could live, restrictions on visitors and his ability to contact others and limitations on where he could go has breached Article 5.
5. The applications by the SSHD against GG and NN were heard together. They came before Stanley Burnton J on 9 November 2007. At the conclusion of the first day of the hearing, NN indicated that he wished to change the statement he had made and it was decided that the hearing should be discontinued. It did not prove possible to relist the hearing until October 2008 when it came before me. There was delay until judgment could be produced because of the need to take account of a decision of the Court of Appeal in SSHD v. AF(No 3) and others [2009] 2WLR 423 in which the correct approach to ensure that there was a hearing which was fair and complied with Article 6 of the ECHR was considered. I decided that the disclosure which had been given of the material relied on against GG was as the law then stood adequate. The contrary was not asserted by the special Advocates, namely Mr Nicol QC for GG and Mr Angus McCullough for NN.
6. In my judgment handed down on 12 February 2009 I decided that, although NN had properly been made the subject of a control order, by the time of the hearing it was not reasonable to maintain the order against him. In GG's case, I upheld the continuation of the order, but I directed that there should be changes to some obligations. First, I amended the prohibition on giving religious advice because as it stood it was too wide. Secondly, I removed the obligation to permit a search of his person since the Act contained no power to carry out such a search. Thirdly, I decided that the move of GG to Chesterfield, which was the subject of PTA/40/2008, should not be upheld.
7. On 10 June 2009 the House of Lords handed down their decision in the appeal from the Court of Appeal's decision in AF(No 3) v SSHD [2010] 2 AC 209. By a majority, they decided that Article 6 required further disclosure to that which the Court of Appeal had considered to be adequate. Paragraph 4(3)(d) of the Schedule to the 2005 Act provided that the Rules of Court made governing control order proceedings must ensure that the court did not give permission for material to be disclosed where it considered that such disclosure would be contrary to the public interest. The objection to disclosure in these cases would be because disclosure would be contrary to the requirements of national security.
8. The essence of the decision in AF(No 3) is that fairness and Article 6 dictate that an individual against whom a control order is made must be given sufficient information about the allegations against him to enable him to give effective instructions to his special advocate in relation to them to enable the special advocate to deal with them in any closed hearing. This does not mean that there needs to be a detailed disclosure of the sources of the evidence upon which the allegations are based, but if the disclosure is limited to general assertions so that the case against the controlee is based solely or to a decisive extent on undisclosed material, there cannot be a fair trial compliant with Article 6. It was recognised that this could mean in a given case that a dangerous terrorist could avoid control if adequate disclosure was impossible because of the risk to national security.
9. Following the decision of the House of Lords, GG lodged an out of time application for leave to appeal to the Court of Appeal against my decision on 28 August 2009. This raised a number of grounds which went to the merits of my judgment, but it argued that there had, in the light of the decision of the House of Lords, been insufficient disclosure to provide for a fair hearing. In the meantime, GG's control order had been renewed in July 2009. An appeal against that renewal was lodged (PTA/45/2009). A disclosure hearing came before Mitting J on 19 May 2010. He had to apply the principles set out by the House of Lords and he decided that there should be disclosure to which the SSHD had objected. If there was a refusal to disclose material which a judge directed must be disclosed in order to achieve a fair hearing, the SSHD was precluded from relying upon that material in support of a decision to impose or renew a control order. Mitting J directed that the SSHD should decide what to do by 30 June 2010. She decided that the control order should be revoked on 11 June 2010 since the view then taken was that it would be contrary to the public interest to make the disclosure ordered by Mitting, J.
10. The Court of Appeal did not make a decision on the appeal against my judgment until 16 March 2012 when, by consent, it ordered that the appeal should be allowed and the proceedings remitted to the Administrative Court for redetermination in accordance with the principles set out by the House of Lords in AF(No 3). It was not until May 2013 that a directions hearing was held. In October 2013 I was asked by Mr McCullough QC to indicate what I regarded to be the correct approach to be adopted in deciding on disclosure after AF(No 3). It is unnecessary for me to repeat that since the SSHD has made the disclosure required to ensure a fair hearing. I would only add that there is an obligation to keep under review whether there is a need for further disclosure throughout the hearing. I have not seen the need for any further disclosure.
11. Since my decision has been set aside, the findings favourable to GG have gone. But Mr Eicke has not sought to challenge any of them and so the lawfulness of any action by the SSHD will be judged in the light of those findings. That may be material in relation to the requirement that GG move to live in Cardiff which was effected in July 2009.
12. No objection was raised to me dealing with this case. Submissions have been directed to how I should approach my previous judgment and in particular what weight should be attached to my findings. Some guidance in the context of control orders has been given by the Court of Appeal in SSHD v. AF(No 2) [2008] 1 WLR 2528. In that case a judge had conducted a full hearing and had decided that the control order and the obligations in it were necessary and that there had been no breach of Article 6, but had quashed the order because it breached Article 5. Following an appeal, the case was submitted to the Administrative Court to determine whether there had been a breach of Article 6 and whether the order was flawed. The judge dealing with it took the view that the previous findings were in principle binding. The Court of Appeal disagreed. In paragraph 30, Sir Anthony Clarke MR, who gave the only reasoned judgment, stated:-

"I would hold…..that the court is entitled to have regard to findings made in the earlier section 3(10) hearing but will itself (i) have to be satisfied that the facts relied on by the SSHD amount to reasonable grounds for suspecting that the controlee is or has been involved in terrorism-related activity; and (ii) have to give intense scrutiny to the necessity of each of the obligations imposed."

Sir Anthony went on to consider the guidelines set out in the tribunal decision Devaseelan v. SSHD [2008] Imm AR 241. That case concerned the approach which should be adopted to the judge's findings where a human rights claim was made following the previous rejection of an asylum claim. It was said that the previous decision must be the starting point. But that approach was in cases where the appellant had always had full knowledge of all relevant facts. Where, as here, that is not the case, it is clear that the findings in the previous case must be reconsidered in the light of any further evidence resulting from disclosure which was needed to establish that there was compliance with Article 6.

13. GG has as a result of the further disclosure been able to make a further statement dealing with the matters relied on against him to a greater extent than when I decided the case. Following service of the re-amended control order statement of January 2015 GG's seventh statement seeks to answer the allegations made against him. In reaching my decision, I must consider whether the SSHD has established what she needs to establish in order to show that the control order when imposed and any renewal of it was based on reasonable grounds for suspecting that GG was or had been involved in terrorist related activity and that any obligation was needed. But that will involve considering whether my findings were correct in the light of any further evidence produced by or submissions made on behalf of GG. Mr Eicke as I have indicated has not sought to argue that any findings I made which were favourable to GG should be varied. That is not surprising since the added disclosure has not produced anything of which I was unaware in considering the case both in open and closed which could amount to any additional ground for an adverse finding.
14. Mr Friedman supported by Mr McCullough has argued that, since at no time until the renewal in July 2009 was GG able to challenge the control order in a manner which was compatible with Article 6, the order should be quashed. They rely in support of this submission on the decision of the Court of Appeal in AN, AE and AF v. SSHD [2010] EWCA Civ 869. Following the decision of the House of Lords in AF(No3) the SSHD decided not to make further disclosure in the three cases with which the Court of Appeal was concerned. In AN, Mitting J had decided that the order should be revoked prospectively but in AE and AF Silber J had decided that the orders should be quashed ab initio. The question before the Court of Appeal was which of the two approaches was correct. They decided that Silber J had correctly decided that it was necessary to quash. The key paragraph in the only reasoned judgment given by Maurice Kay LJ is 27. Having stated that there was a fallacy at the heart of the SSHD's claim to be able (having acted in good faith on the basis of the law as it was then) to set up the prior misapprehension of the extent of his legal obligations as a form of defence, Maurice Kay LJ under the heading 'The fallacy' stated:-

"In order to advance a submission that a control order was valid when made but only succumbed to legal difficulty at a later date, the Secretary of State would have to establish that, in relation to the point for which he is asserting legality, he can satisfy the court as to the reasonable grounds for his suspicion of terrorism-related activity and the need for public protection. However, he could only do that by relying on the material that he is willing to disclose or gist. In other words, he would need to resort now to closed material in a manner not countenanced by AF(No3). Whilst I accept Mitting J's suggestion that, in court, the Secretary of State does not have to rely on all the material that led him to his view about terrorist-related activity and public protection, he does have to rely (with consequential disclosure obligations) on sufficient of it to satisfy the court that his decision to make a control order was not and is not flawed. In these cases, he has chosen not to do so. I shall assume he has reasonable grounds for exercising that choice. However, its consequence is that he has disabled himself from satisfying this appellate court that, throughout, he has been able to satisfy section 2(1). In essence, we are being invited to assume that, but without access to the relevant material. We are being asked to find that he acted reasonably when, in truth, that is something we cannot test against the material relied upon by the Secretary of State."

15. It seems that the result of this is that, however strong the evidence relied on by the SSHD may be to establish the necessary reasonable suspicion, the order will not have been lawfully imposed unless disclosure which complied with AF(No.3) could be made when the court came to consider whether the decisions of the SSHD in making the order or imposing any of the obligations in it were flawed on a hearing pursuant to s.3 of the 2005 Act. In his conclusion (paragraph 33) Maurice Kay, LJ said that he agreed with the submission made on behalf of the controlees that, if the appropriate remedy were merely revocation, there was a risk that a breach of convention rights would go substantially unremedied. AN faced prosecution for breaches prior to revocation. It does not seem that any consideration was given to the possibility of back dating revocation, which could have provided the necessary protection for AN. Where the SSHD had acted entirely properly within the law as it was at the relevant time and could provide disclosure which complied with it, it is somewhat worrying that control of someone who was properly regarded as in need of control in order to protect the citizens of this country or persons in other countries from terrorist acts had to be set aside because further disclosure was required when the law was restated. But I am of course bound by that decision. It is also I think worth noting that it might in any case be very difficult for the SSHD to judge whether disclosure which would comply with the AF (No 3) requirement could be made. Much might depend on the case put forward on the particular controlee's behalf and the decision of a judge in a disclosure hearing. Having said that I recognise that, if it was clear that the SSHD could not disclose and had no intention of disclosing sufficient material to enable there to be an Article 6 compliant hearing, to make an order knowing that it would take time (regrettably usually over 12 months) before a hearing could be held would be wrong and almost an abuse.
16. Mr Friedman in addition drew attention to the unfortunate delay before those advising GG were aware that the special advocates had lodged a notice of appeal against my closed judgment. In paragraph 11 of the Statement of Reasons set out by the Court of Appeal in allowing the appeal by consent on 23 January 2012, it was stated that the review of GG's case resulting from the AF(3) decision in the House of Lords had not been completed due to an oversight. Pending that review, the Special Advocates had not pursued the appeal. It was not until Mitting J's order of 19 May 2010 requiring further disclosure was made that the procedural issues in the case became apparent. The SSHD in revoking the control order on 11 June 2010 made clear that she had done so because she was not prepared to make sufficient disclosure to comply with the AF(3) test.
17. If the control order was to continue, renewal would have been needed at the end of July. Mitting J gave a month to the SSHD to consider whether there should be the additional disclosure which he ordered. By then, an exit strategy was in place, as the CORG minutes which have been disclosed indicate. It would be surprising if revocation had not been a consideration, particularly having regard to the short time for compliance with Mitting J's order. The curfew hours had been reduced. The TPIM Act had limited powers under it to a maximum of 2 years. That limit was not applicable to control orders but, as Lord Carlile had indicated, it would in his view only be appropriate to extend control orders beyond 2 years in rare cases, and it was obviously relevant to consider that by July 2010 the order had been in force for 4 years. That would no doubt have meant that the need for a renewal would have to have been very carefully considered. But, as has now been shown, on mature reflection the necessary disclosure has been given and I see no reason to doubt that, had it been decided that the control order should continue, it would have been given. Thus I do not accept that the necessary disclosure could not have been given.
18. But it is important to identify the true ratio of AN. It is significant that in paragraph 27 Maurice Kay LJ underlined the word 'now'. In the cases considered in AN, Article 6 compliant disclosure had not and would not be given so that the only issue was whether quashing or revocation was appropriate. In this case, such disclosure has now been given and, if the law had been as AF(3) has since declared it to be, I have no reason to doubt that it could have been given. Thus there was no unlawfulness in the making of the order nor in any renewals of it. It follows that in my judgment AN does not mean that the order must be quashed.
19. Mr Friedman, again supported by Mr McCullough, has submitted that there has been no exculpatory review to ensure that disclosure is made of any matters which may assist GG. The obligation stems from CPR 76.27 which requires the SSHD to "make a reasonable search for relevant material and to file and serve that material." Such material will only be relevant if it could have affected what was relied on by the SSHD during the subsistence of the control order. The situation in this case is somewhat artificial since so much time has passed since the order came to an end. Further, witness X was not dealing with the case of GG at any material time and has depended on a review of the relevant files. But I have been assured that exculpatory searches have been made for documents in existence during the subsistence of the control order, having particular regard to the case advanced by GG, and have continued up to the commencement of the hearing. I have no reason to doubt that the exercise carried out has been sufficient in the circumstances to comply with the requirement of the Rules. Further, there is an obligation in any event to disclose any material which could assist GG. This obligation exists independently of anything required by the Rules. Again, I have no reason to doubt that this obligation has been recognised and the necessary action has been taken.
20. Sections 3(11) and 10(6) of the 2005 Act require the court when determining whether an order was properly made or any appeal against renewal or the imposition of a particular obligation to "apply the principles applicable on an application for judicial review". The TPIM Act contains the same requirements. This led to a suggestion in correspondence by the GLD that the court was limited to consideration of such evidence as was known to the SSHD at any relevant stage. That is in my view to adopt a far too narrow an approach. If it were correct, there would be little point in the need, which has been recognised in all control orders and TPIM cases, to reach factual determinations based on all evidence, noting in particular that provided by the controlee, put before the court. It was, I think, common ground between all representatives that I had to consider all evidence, whether or not known to or reasonably ascertainable by the SSHD at any stage during the subsistence of the order, to make any necessary findings of fact and then to decide whether the order or any renewal or any obligation could reasonably have been imposed. An obvious example would be if there was evidence provided by a controlee which, albeit unknown to the SSHD, showed that a crucial basis for making the order was wrong. The statutory provision is poorly drafted since the principles of judicial review normally preclude reliance by a claimant on facts unknown and unavailable to the decision maker when the decision was made. That, as I have said, cannot apply in these cases. But I cannot substitute my view for that of the SSHD unless satisfied that the SSHD in effect failed the Wednesbury test.
21. GG has produced a lengthy statement in which he seeks to deal with the case against him based on the further disclosures which have been made in order to meet the AF(3) requirements. He has chosen not to give evidence. This cannot give rise to any adverse inference, but it does mean that his statements have not been able to be tested in cross-examination. Inevitably that can affect the weight to be attached to any explanation given.
22. There are, broadly speaking, different stages which have to be considered in assessing whether the control order was lawfully made and subsequently reviewed. Some further information has been provided in relation to his activities which are relied on in 2002, 2003 and 2005 in connection with operation KNOP. He has explained that any calls he made to Khurmal in North Iraq were entirely innocent and were certainly not directed to a terrorist camp there. Indeed, he asserts that the organisation relied on, Ansar Al Islam, did not then have any camps in Khurmal. No money was, he said, sent for terrorist related purposes and in particular the Halgurd with whom he was in contact was not the Mullah Halgurd who was involved in terrorist activities. No doubt some, probably the bulk of his Hawala activities were entirely proper and were not to fund any terrorists. But evidence has been identified in open that some was to support terrorist activities.
23. GG has accepted that he believed and continues to believe that the Koran supports the view that a Muslim can properly fight against those who invade his land. This belief does not by itself mean that he would take any positive steps to support violence against British or allied forces in Iraq. But, as must be obvious, there is material in closed which supports the assessments made. And if the denials are not accepted, the starting point is a lack of credibility in the account given by GG.
24. In paragraph 47 of the previous judgment, I set out what I regarded as powerful support for the assessments made. Nothing in the statement now produced by GG leads me to change my conclusions. The assertion that he was unaware that Swara Mahmud and Ako Goldbach were one and the same I find incredible. It is to be noted that NN, Swara's cousin, said in evidence in the hearing in November 2008 that Swara introduced him to GG in Derby and that GG and Swara appeared to know each other well. It is clear that Swara was actively involved in Ansar Al Islam and went to Iraq, where he was arrested, to take an active part in it. Nothing put forward by GG in the light of the further disclosures makes me in any way doubt the correctness of my conclusions.
25. There has been disclosed an assertion that in July 2005 GG during a conversation made a reference to facilitating individuals travelling to Iraq to take part in the Jihad. GG vehemently denies this and makes the point that without knowing what he actually said, he cannot properly meet this allegation. While I recognise the difficulties to which he refers, it is consistent with the assessments that have been made based on his activities which have been referred to and his support for the use of violence against the invaders.
26. It follows that in my judgment there was sufficient material available to the SSHD to give rise to a reasonable suspicion that GG had been and was still engaged in terrorist related activity so that a control order was justified. So far as Operation KNOP was concerned, I am satisfied that any plot was in relation to activities in Iraq, but not in this country. That GG was a respected figure in the Kurdish community is apparent. He says that, if this was so, it was not likely that he would be setting out extremist views and trying to persuade others to join him. But he accepts that he, like many, was opposed to the Iraq war which he regarded as unlawful. Thus he would have had a motive to persuade others to take an active part in opposing the war.
27. It is said that on occasions in 2006 and 2007 he expressed extremist views to associates. He has asserted in his statement that conversations in his home were being monitored. He and associates would discuss matters of common interest. Congregational prayers were from time to time conducted by him simply because he was able to do this properly. The discussions involved consideration of the religious basis for any particular action. He did not, he says, then seek to radicalise others to support any terrorist related activity in Iraq or anywhere else. It is to be noted that he is said to have told a police officer in September 2008 that he knew he had a gift when talking to people and he would be happy if he could persuade two people to do something in 5 years. He says that that conversation has been 'twisted and taken out of context'. He was talking to a control officer whom he names. He recognises that he was regarded as persuasive, but denies that what he said could have reasonably have been regarded as any corroboration of his ability to influence others to any extremist views. In my view, the SSHD was entitled to regard the police officer's statement as some support for the ability of GG to influence others. Further, there was ample material which gave rise to a belief and certainly a reasonable suspicion that he held extremist views. And there was material which justified the conclusion that he sought to persuade others to favour his extremist views and to take action in accordance with them and that such action could involve terrorist related activity.
28. Mr Friedman has placed some reliance on what I said in paragraph 34 of my previous judgment. In essence, I took the view that evidence showing that since the imposition of the control order GG had maintained an association with extremists was most important in considering whether renewal of the order, particularly in 2008, was justified. I allowed NN's appeal because, while the imposition of an order against him was proper, he had done nothing since he had commenced family life to show an inclination to continue his terrorist related activities. The disclosure directed by Mitting J required that those alleged extremists with whom GG continued to associate be identified. Further, there has now been disclosure that he has said there should be support of jihad in Iraq and others should be encouraged to do so.
29. GG has dealt with his alleged activities since the imposition of the control order in the light of the further disclosure. He complains that without knowing the words he allegedly used and the precise circumstances in which he used them he cannot give an entirely satisfactory answer. His case is that whatever he may have said has been taken out of context since he never did more than discuss matters of common interest and how the Koran should be interpreted. He might have explained why some had decided that it was within the interests of Islam to have acted in a violent manner, but that did not mean he espoused their views nor that he encouraged anyone else to act accordingly.
30. One individual GG is alleged to have influenced was called Bilal. Bilal visited GG at his address in Derby in November 2006 when GG is said to have expressed extremist views. Shortly thereafter Bilal travelled to Iraq where it was reported he engaged in a terrorist attack and was killed. GG says he had met Bilal originally through the mosque in 2002 or 2003. He says he did not influence him because Bilal was more knowledgeable than him. Bilal, as an Islamist, was likely to have been regarded by both the major Kurdish parties in north Iraq as an extremist, but that was inappropriate. GG further cast doubt on the accuracy of the report of Bilal's death and says that to have labelled him as an Al Qaeda supporter from Derby was wrong. While I am not persuaded that Bilal travelled to Iraq at GG's behest, I am satisfied that the SSHD was entitled to rely on GG's association with him and, in the light of other evidence of his extremist views, to consider that GG had given Bilal encouragement.
31. Two extremists, including the man who married GG and his wife in accordance with the Muslim ceremony, were classified as those whom GG allegedly influenced. He accepts that both were Islamists, but, far from influencing them, they had to his knowledge softened in their attitudes. Visits were entirely social and visits to him in Chesterfield were because he was lonely and people sympathised with his plight.
32. An important assessment relates to meetings in the summer of 2009 before GG moved to Cardiff with three named extremists. One of them he says was regarded as a possible worker for both the Kurds and the British intelligence. But any meetings with them were simply because they were members of the relatively small Kurdish community in Derby and he was not doing anything other than being courteous to them. He was not concerned to influence or to agree with any extremist views they may have pronounced.
33. Having regard to the properly based assessment of GG's own extremist views and his association with and influence on others, I am satisfied that the SSHD did not act unlawfully in forming the view that the control order needed to be renewed in July 2009. I have given careful consideration to GG's statements and his explanations but I see no reason to alter my conclusions which I reached in February 2009. I am also satisfied, as I have indicated, that the control order was properly renewed in 2009.
34. It is however important to bear in mind that the Iraq war ended in December 2008. This removed to an extent what had motivated GG's activities. But it did not mean that there were not still extremist acts which involved the carrying out of violent attacks on those endeavouring to produce stability in Iraq. His continuing involvement with extremists in 2009 and his continued expression of extremist views justified the ongoing concerns and reasonable suspicion. But it did mean that as time went by the need for a control order became less. If an appeal against the 2009 renewal had been heard by the end of 2009 or in early 2010, it may be that revocation would have been considered appropriate. But that does not assist GG since my only power is to quash and, as I have said, I am satisfied that the renewal was proper.
35. Mr Friedman maintained the submission that he had made before me in 2008 that between May 2008 and July 2009 when GG was required to live in Chesterfield, the restrictions amounted to a breach of Article 5 of the ECHR. He relies on GG's isolation there (he knew no one) and the inability to live with his wife and family. He cited SSHD v AP [2011] 2 AC 1. The Supreme Court in that case decided that restrictions to a control order which interfered with Article 8 rights, albeit proportionately, could be taken into account in deciding whether the overall effect of the order amounted to a breach of Article 5. Lord Brown gave the judgment with which all other members of the court agreed. In paragraph 4 he said this:-

"I…..remain of the view that for a control order with a 16 hour curfew (a fortiori one with a 14 hours curfew) to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive on the life the controlee might otherwise have been living".

Social isolation is an important consideration. Lord Brown referred to my decision of February 2009 stating that I had upheld a 16 hour curfew in Chesterfield when the relocation there "presented no difficulty for family visits." Mr Friedman submits that that was not a wholly accurate reflection of what I had decided. While there was no bar on visits from his wife and family (and indeed visits by others), there were practical difficulties. The children were at school in Derby and his wife did not drive. Chesterfield is some 25 miles from Derby and to travel would involve expense. Thus the reality was that such visits were not practical save on some occasions.

36. There is in my view nothing in the decision of the Supreme Court in AP which shows that my decision in February 2009 was wrong. I have reconsidered in the light of all the material evidence and bearing in mind the realities relating to family visits but I am not persuaded that the restrictions were such as to amount to a breach of Article 5.
37. I come finally to the appeal against relocation to Cardiff. This arose because I decided in February 2009, largely because of his family life and the Article 8 rights of his wife and children, he should be allowed to live with them and Chesterfield made that practically impossible. I did not say that he must be allowed to go back to live in Derby, but that was to be considered, particularly as GG had said that he was desperate to be back in Derby to be with his family and would accept any stringent conditions to enable that to happen. A statement from his wife asserted that she could not countenance a move from Derby, and confirmed her wish to be with GG and his good relationship with the children.
38. My judgment was handed down on 12 February 2009. On that day, the Home Office wrote to GG's solicitors saying that a return to Derby would not be permissible on national security grounds. GG's solicitors wrote on 16 February setting out the stringent conditions with which GG was prepared to comply if he could live with his family in Derby. On 24 February, his solicitors were asked to clarify why his wife was not willing to move from Derby and whether there was anywhere outside Derby where she would be willing to go. On 9 March the solicitors replied. In essence, Derby was the family's home, the family's friends and schools were there and GG's wife had a council tenancy and a stable job there. But it was said if the SSHD remained adamant that he could not be allowed to live in Derby, Cardiff was the preferred alternative to Hounslow (those were the two places on offer). It was most unfortunate that it took until 7 July 2009 for the move to Cardiff to be effected since this put a further strain on the marriage.
39. Section 10(1) of the 2005 Act provides:-

"Where - ……

(b) an obligation imposed by ….an order has been modified without the consent of the consulted person,

The controlled person may appeal to the court against the ….modification"

Mr Eicke submits that GG consented to the move to Cardiff and so has no right of appeal against it. It is clear that GG did not truly consent to anything other than a move back to Derby. Only when told that was impossible did he express a preference for Cardiff rather than Hounslow. That in my view was not a true consent to the modification. Rather, it was the lesser of two evils. Accordingly, I do not think that an appeal against it is prohibited.

40. It was made clear on GG's behalf that his wife did not want to leave Derby because of the harm which would be done to the children by uprooting them from their schools and friends and because she had a council tenancy and employment which she was reluctant to lose. In her statement, which is undated because the original was lost in a flood at the solicitor's premises, GG's wife spells out the reasons why she is settled in Derby. When the statement was made, which must have been in the autumn of 2008 shortly before the hearing before me, she was saying that she wanted to live with GG and that he would be a good father to the children.
41. Since GG was moved to Cardiff, the marriage has broken down. I note the observation of a police officer in the CORG minutes that GG may have been using the marriage as a means of getting back to Derby. But on the material before the SSHD in 2009, there were previous observations by a control officer that the relationship seemed real. While I recognise the possibility that the desire to live with his wife in Derby was not to further his marriage, that would be to find that there was no substance to his marriage and that he had cynically led his wife to believe that he was genuinely concerned to live with her and the children. I do not think that that possibility is sufficient to justify a view that the marriage was not genuine.
42. In any event, it took some 6 months to arrange the move. By then, the difficulties of maintaining married life while GG was in Chesterfield had increased and Cardiff may well have seemed to be the last straw. It does not appear that sufficient regard was paid to the effect on the children or to the real difficulties expressed by his wife if she was to be uprooted from Derby. Furthermore, by mid 2009 it must have been obvious that the control order had a limited life. It is also significant that GG offered much stricter controls if he were allowed to return to live in Derby.
43. In all the circumstances, I do not think that the modification that he must live in Cardiff was necessary. No doubt he would have been well aware that, if he were allowed to return to Derby, his movements and his contacts would be closely monitored. The case against him as disclosed relied heavily on the assessment that in Derby he would be able to be in contact with other extremists and would encourage what would amount to terrorist related activities. While I do not doubt that the situation in Iraq meant that such activities could continue, the likelihood of any positive steps to pursue them was less. While GG might radicalise, he could do that wherever he lived.
44. It follows that I find that the imposition of the control order and each of the renewals were lawful. But the modification in the move to Cardiff must be quashed. The extent (if at all) that may benefit GG is not for me to consider.