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
		11/04/2017

Judgment (OPEN)

Mr Justice Collins:

1. Both respondents together with a man Nadir (who is EC's cousin) were arrested on 6 November 2014 and on 20 November 2014 were charged with an offence under Section 5 of the Terrorism Act 2006. The allegation was that they were plotting to carry out an attack using knives which was inspired by the murder of Fusilier Lee Rigby. The trial of the three commenced at Woolwich Crown Court in October 2015. Nadir was convicted but the jury failed to agree on verdicts against EC and EG. Both were retried at the Central Criminal Court, the trial commencing in May 2016. On 15 June 2016, EC was acquitted. On 16 June 2016 the jury failed to agree on a verdict against EG. The prosecution decided that a further trial would not be sought and so a verdict of not guilty was entered.
2. The applicant decided that she should apply for permission to serve a notice on each respondent under Section 2 of the Terrorism Prevention and Investigation Measures Act 2011 (a TPIM notice) in case they were not convicted on the retrial. Permission was obtained from Ouseley J on 6 May 2016 pursuant to Section 6 of the TPIM Act. The notices were served on EC on 15 June 2016 and on EG on 16 June 2016 when each was released from custody.
3. Section 8 of the TPIM Act requires that there be what is referred to as a directions hearing at which the court must give directions for a review hearing. On 8 July 2016 Singh J directed that the cases of both respondents should be heard together since there was a close factual nexus between the two. But I must consider the case of each respondent separately.
4. Section 9 of the TPIM Act sets out the way in which I must deal with the review hearing. In order to justify the imposition of TPIM measures, the applicant must establish that five conditions have been met. These are set out in Section 3 of the TPIM Act as conditions A to E. They are as follows:-

"3(1) Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity (the "relevant activity").

(2) Condition B is that some or all of the relevant activity is new terrorism-related activity.

(3) Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.

(4) Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual's involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.

(5) Condition E is that—

(a) the court gives the Secretary of State permission under section 6……"

Terrorism related activity I shall refer to as TRA. New TRA within Condition B means in this case any TRA whenever it occurred.

5. Section 4 of the TPIM Act identifies what is meant by involvement in TRA. It provides:-

"4(1) For the purposes of this Act, involvement in terrorism-related activity is any one or more of the following—

(a) the commission, preparation or instigation of acts of terrorism;

(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;

(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;

(d) conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a);

and for the purposes of this Act it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism in general."

An 'act of terrorism' is defined in Section 30(1) of the TPIM Act to include 'anything constituting an action taken for the purposes of terrorism within the meaning of the Terrorism Act 2000'. Section 1(4)(a) of the 2000 Act provides that the action in question includes action outside the United Kingdom.

6. Section 9 of the TPIM Act deals with the conduct of a review hearing. So far as material, it provides:-

"9(1) On a review hearing…., the function of the court is to review the decisions of the Secretary of State that the relevant conditions were met and continue to be met.

(2) In doing so, the court must apply the principles applicable on an application for judicial review…..

(5) The court has the following powers (and only those powers) on a review hearing—

(a) power to quash the TPIM notice;

(b) power to quash measures specified in the TPIM notice;

(c) power to give directions to the Secretary of State for, or in relation to, —

(i) the revocation of the TPIM notice, or

(ii) the variation of measures specified in the TPIM notice.

(6) If the court does not exercise any of its powers under subsection (5), the court must decide that the TPIM notice is to continue in force.

(7) If the court exercises a power under subsection (5)(b) or (c)(ii), the court must decide that the TPIM notice is to continue in force subject to that exercise of that power."

Subsection 8 defines the 'relevant conditions' to mean Conditions A to E.

7. Condition E is met by the permission granted by Ouseley J. If condition A is met, Condition B will also be met. Thus the respondents challenge Conditions A, C and D. The requirement to apply judicial review principles (s.9(2)) means that the applicant's decision that Condition A was and continues to be met can only be overturned if, applying the Wednesbury test, it cannot be supported. Thus a failure to have regard to matters that should have been taken into account or having regard to matters which should not have been taken into account will, if established, justify a decision to quash. Equally, the same would follow if the decision was one which could not reasonably have been made. It is noted that a decision which is based on a particularly determinative error of fact can be impugned.
8. Conditions C and D require that consideration be given to whether the imposition of the notice or any of the measures in it were necessary for the purposes set out in the conditions. As is obvious, the imposition of a TPIM notice and any measure in it which will restrict the individual's rights to live as he wishes will interfere with his rights under the ECHR, in particular Article 8. In DD v SSHD [2015] EWHC 1681 (Admin) I considered the approach that should be adopted to Conditions C and D. I cited observations of the Court of Appeal in SSHD v MB [2007] QB 415, which was a case dealing with a control order which applied the same statutory necessity test. It is, I think, helpful to cite again paragraphs 63 to 65 of the Court of Appeal's judgment in MB. The court stated:-

"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 obligations that it is necessary to impose may depend upon the nature of the involvement in terrorism related activities of which he is suspect. They may also depend on the recourses 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 that 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….

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….Some obligations may be particularly onerous or intrusive and, in such cases, the court should explore alternative means of achieving the result…"

9. In deciding on necessity, I must accordingly consider whether the test of proportionality is met. No doubt if satisfied that the notice or any measures in it were necessary to protect the public, it will be likely that the notice or the measures will be regarded to be proportionate. But it will be important, when considering measures, to take into account the matters set out in the passages I have cited from MB. Furthermore, the more grave the impact of any particular measure, the more compelling must be the need for it.
10. Each respondent gave evidence at his trials and was extensively cross examined. I have been provided with transcripts of that evidence. Each obviously denied that he was involved in the plot alleged against him of which Nadir was convicted: I have been provided with material which I have dealt with in my closed judgment and which was not disclosed to the juries at the trials and has not been disclosed to the respondents. I have taken it into account in reaching my decisions on this application. As will become apparent, consideration of all the material put before me has satisfied me that not only were both TPIM notices valid but the measures in each were and are needed and should continue in being, certainly until reconsideration whether any extension has to be decided on when those notices are reviewed in June this year.
11. Counsel for the respondents have accepted that they cannot seek to persuade me that I should doubt the correctness of Nadir's conviction. This inevitably means that the acquisition of the Victorinox knife for Nadir was to enable him to carry out the attack that he planned. As will become apparent, this is important since it means that the assertion that, if the intention was to obtain knives for TRA purposes, no discussion about knives was likely to have been on the Timeline and so observed by the authorities is undermined. The respondents maintain that so far as they were concerned they believed the knives and sharpener were indeed required for bona fide purposes in the kitchen. They did genuinely, as they explained, need them for such proper purposes and had no reason to believe Nadir's purpose was any different.
12. Not only do I have the record of the respondents' evidence at their trials but they gave evidence before me. Thus there is a large quantity of material which I have had to consider. I do not propose to go into great detail in this judgment but to concentrate on what I regard as the important issues which I must determine. Essentially, I must weigh the points particularly relied on by the applicant against those made by the respondents. As is no doubt obvious, I must consider whether the explanations given by and the evidence of the respondents are credible when dealing with material relied on by the applicant. While some of the material affects both respondents, I must, as I have said, deal with each separately because they do not necessarily stand or fall together.
13. Before dealing with the individual cases, I must refer to material which is very important in the cases against each respondent. Analysis of their phones after their arrest brought to light a very large number of communications between them, Nadir and others. There were two groups involved. The mediums used were Telegram and WhatsApp, which are encrypted and so more secure than some other media. The respondents do not accept that the added security was the reason for its use. It had easy access for all members of the group who were to use it. It seems from various messages on it that the respondents were aware that there was likely to be monitoring by the authorities of the conversations. One group comprised some 30 to 40 members calling themselves 'Tawheed Wal Bara' (TWB). There was a smaller group known as 'The Lads' comprising EC, Nadir and two others. EG was not a member of The Lads.
14. Those involved held extremist views. Indeed, the respondents accepted in their evidence before me that they were in sympathy with the aims of ISIS. That must follow from messages sent by members of both groups showing approval of and sympathy with ISIS activities, including beheadings and the murder of Lee Rigby. At their trials, and before me, both respondents inevitably have recognised that they could not deny what is clear from the messages. They have stated that their attitudes have changed since their arrests and incarceration and they no longer believe in the extremism which drives ISIS. They regret the observations they have made. But each is adamant that their sympathy with and approval of ISIS never meant that either of them would personally involve themselves in TRA. Nor, they say, did they play any part in the offence charged against them. Knowledge of what Nadir intended would not by itself mean they were guilty of any offence or indeed involved in TRA, but each has denied that they knew what Nadir intended. So far as they were concerned, as I have said, the acquisition of a knife and sharpener was for legitimate culinary purposes.
15. My approach is based on judicial review. It follows that a detailed analysis of the evidence is not required. I must decide whether the evidence shows that the applicant's conclusion that the required conditions are met was rational applying the usual Wednesbury test. I must, of course, consider whether what is relied on to lead to the conclusion reached was properly relied on. To that extent, I have to decide whether I accept the respondents' answers to the allegations made against them. Some of the reasons for rejecting their accounts are supported by material which I have been able to consider in the closed sessions. That I cannot refer to in this open judgment.
16. I shall deal first with EC. He is 21 years old, having been born in this country in July 1995. He had a somewhat disrupted childhood since his parents moved back and forth to Pakistan from time to time. He has been living in this country since 2009. Between 2006 and 2009 he lived with his cousin Nadir for periods. In November 2013 he obtained a job in a call centre and remained so employed until his arrest on 6 November 2014.
17. He is described in the Consolidated TPIM Statement (CTS) as being a violent and volatile individual. Reliance is placed on previous findings of guilt which include robbery and involvement in a fight in a pub. He has been warned by the police not to undertake any violent activity towards a named individual. These matters arose when he was a young teenager of 13 to 14. He drank too much and took drugs. He has said that he was the victim in the fight in a pub. In any event, he says that he is a very different person now than he was in 2004 and cannot properly be described as volatile or violent. It may well be that his offending then resulted from a way of life which he has abandoned, but use of violence in particular circumstances can properly be regarded as a worrying characteristic. Nevertheless, this assessment does not add significantly to the material available to establish his involvement in TRA in particular in 2014.
18. In early 2013 he was hoping to travel to Pakistan. He had by then become eager to engage in his religion and wished to learn and understand what was required of him by his religion. It is to be noted that on 12 November 2011 he was arrested for using threatening, abusive and insulting words by shouting "Fuck the police, fuck the poppy". While this did not lead to court proceedings, its significance lies in the apparent attitude to the military, having regard to the date. He has obviously been radicalised, but there is no direct indication as to who may have been responsible. His attitude in that incident in November 2011 is entirely consistent with a view that the British military were at least not worthy of respect.
19. On 19 January 2014 EC, together with Nadir and one Luqman Warsame, had decided to travel to Turkey intending to go from there to join those fighting in Syria against Assad's forces. Nadir was prevented from leaving the country because he was then on bail for having made threats to kill an individual. The threat involved, it was alleged, warning the individual that he would end up like Lee Rigby and threatening to cut off his head. His bail conditions prevented him from leaving the country. EC and Warsame said they were travelling to Istanbul for 'Islamic sightseeing', which EC said involved visiting the Blue Mosque and some waterfalls. EC's father telephoned the police that same evening stating that EC might be going to Syria and that he didn't want EC to do something silly.
20. EC maintained his untrue account that he had no intention of heading to Syria at his first trial, but admitted in his second that he had maintained his lies in order to tell the same story as his cousin Nadir. He has now accepted that he did intend to accompany Warsame and to fight. He denied that he would join ISIS, but, having regard to his mindset and his recognition that his messages on TWB show that he did agree with ISIS and its objectives (and did not dissent from the methods used by ISIS to impose its view of what their religion required) that denial is not in my view acceptable. I have no doubt that he and Warsame were intending to engage in TRA in Syria and EC would have subsequently joined ISIS with Warsame in Syria. It seems that Warsame did do that and has been killed in Syria. EC asserted in his statement prepared for the hearing that he had not, save mainly through Nadir, maintained communication with Warsame. In cross-examination, he said he had Warsame's number and he might have phoned him a few times. It is clear to me that he maintained contact and, as some messages to the TWB group show, shared information about Warsame with the group.
21. EC says that he stayed in a hotel in Istanbul on arrival there. He called his parents. He recognised that they were upset and he had become homesick and decided that he would not go to Syria. His parents came to Istanbul and the following day he returned home to London. If his account of his change of mind were true, it is surprising that it was necessary for his parents to spend money in travelling to Istanbul. I find his account not to be credible and it is apparent that his parents felt it necessary to go to Istanbul to try to ensure that he did return and did not travel to fight in Syria. It is to be noted that on his return he informed the port authority that his parents had been unhappy that he travelled to Turkey without Nadir. That of course was untrue.
22. It is not necessary for me to go into detail of the messages on what was described in court as the Timeline, namely the TWB and The Lads communications. EC said that he had been approached by an MI5 representative, but he knew that he was not intending to do anything wrong and so maintained his membership of the groups. He recognises that many of the comments made both by him and others were unacceptable and vile. There was approval of the murder of Lee Rigby and the beheading of various unfortunate individuals. He attempted to justify his involvement by saying that he personally neither condemned nor condoned for example the 9/11 and 7/7 attacks or the killing of Lee Rigby. He could understand the attitude that the killing of thousands of Muslims by western forces must be put in the balance against the killing of some western citizens.
23. EC put at the forefront of his case that he would not have engaged in any TRA in this country, particularly any killing, because of his belief in what is known as the covenant of security. This requires Muslims not to carry out acts in and against members of states which permit them to carry on their religion in freedom. This applies to this country. Thus he would not have done anything to break that covenant. But in September 2014 Abu Mohammed Al-Adnani, the then spokesman for what is now known as ISIS, made a speech in which he encouraged Muslims anywhere in the world to join in violent jihad against non-Muslims in any country, in particular to perpetuate acts of terror against police and security forces in western countries. In effect, the actions by western countries in supporting attacks on Muslims in the Middle East or Afghanistan had meant that the covenant of security no longer applied. Since then, as is all too well known, there have been a number of attacks in various countries, including France, Australia and Canada. It is difficult to accept EC's evidence since his admitted support for ISIS and the view that Sharia law and the Caliphate should extend worldwide is inconsistent with the rejection of the TRA involved.
24. The acquisition of knives and sharpeners is obviously of the greatest importance since the plot to use a knife to kill was not only the basis of the prosecution but the main TRA which led to the imposition of the TPIM. The attempt to travel to Syria was also TRA since I am satisfied that EC would have with Warsame joined ISIS. He admitted that by the summer of 2014 he agreed with ISIS and that means that, unless he rejected Adnani's exhortation which he did not, he would have approved of an attack on a soldier in this country following the example of those who murdered Lee Rigby.
25. Before leaving general matters raised in the messages, I have taken account of EC's concern that some messages were misinterpreted and were not directly connected with what he was dealing with. But EC and indeed all involved in both TWB and The Lads could have access to any communication. This is of particular importance in relation to some illustrations which were forwarded and which showed in some cases beheadings. This is also particularly important when one comes to knives and their acquisition. EC's evidence is that his only interest was to acquire a decent knife and sharpener for his kitchen and he draws attention to his having informed his wife, Ala, about that and her confirmation of it. It is difficult to follow why TWB or The Lads groups should have been interested in members wanting kitchen equipment. Since Nadir did want the knife for TRA purposes, any discussion of knives had to appear innocuous since there was awareness that the messages might be monitored. Hence Nadir pretended that he was getting the Victorinox knife for his mother and made that point explicitly on TWB. Albeit EC was going to take part with Nadir in the proposed attack, it is not necessarily the case that he would have used or brought a knife. But in any event the desire to get a knife for proper purposes would not exclude its use in an attack. Furthermore, the acquisition of a decent sharpener was entirely consistent with the need to ensure requisite sharpness of the knife if it was to be used to behead the victim.
26. The Revised Case Summary prepared for the first trial sets out the material discussions about knives and sharpeners. It is significant that those discussions follow Adnani's speech. It has been referred to as a fatwa, but that says EC is a misnomer. The description does not matter since it is its effect on those who support ISIS and its aims which is important. And it clearly did have the effect desired by Adnani. On 24 September 2014 there was posted an image of a man being beheaded. EC posted 'Big knife for big kafir' and EG 'Yeh good knife'. Following a video, which has been deleted, but which must have shown the beheading of Alan Henning, we find EC saying 'not allowed to feel sorry for a kafir'. On 5 November 2014 there was messaging between EC, EG and Nadir about obtaining a knife and a sharpener. In the course of messaging, Nadir says 'before anyone gets any dodgy ideas, am getting these for my mum she enjoys cooking'. This was a somewhat clumsy attempt to show that the acquisition would be for an innocent purpose. It was palpably untrue.
27. EC was not present when the knife was bought from Kitchen Ideas in Ealing on 6 November 2014. But Nadir telephoned EC following which EC posted on The Lads 'John is shopping – lol'. 'Lol' is 'laugh out loud', namely that what was described was good. EC contacted his wife to tell her that Nadir had got him a knife sharpener. When asked why he had got it, he said 'our knives are crap' and the sharpener would mean there was no need to buy more knives. His wife said their knives weren't bad but a sharpener would make them better and both went on to say that sharpening knives was fun.
28. It is not necessary to deal with the acquisition of knife and sharpener in more detail. It is, as I have said, clear that Nadir was obtaining them for the purpose of carrying out an attack and the pretence in the messaging that they were, so far as Nadir was concerned, for his mother was an attempt to conceal the true object. Whether or not EC was himself to be armed when he joined in the attack is not of importance.
29. It seems to me that EC was very fortunate in the verdict that was eventually given. The open material which I have summarised coupled with the jury's satisfaction that Nadir had intended to use the knife obtained for him in a murderous attack leads me to suppose that they were not equally satisfied of EC's involvement beyond reasonable doubt. But based on the entire evidence before me I am not only satisfied that the applicant's view that Conditions A, B and C are met is correct but can say that I am sure that they are.
30. There was a meeting between Nadir and EC at a café in High Wycombe on 4 November 2014 at which a third person was present. It is said on the applicant's behalf that this meeting was to plan the attack. It is submitted on EC's behalf that this was unlikely for two reasons. First, the detailed discussion the following day of acquiring knives would have been unnecessary and would have risked disclosure. But it was EG who was to be involved in the acquisition of the appropriate knife and sharpener and so there was a need for discussion of this under the pretext of kitchen use. It is also said that the presence of a third party meant that attack planning was unlikely since he was "wholly innocent". It is important to bear in mind that knowledge of what Nadir and EC intended would not be sufficient to establish guilt of a criminal offence nor for that matter would it justify a TPIM. Thus the presence of the third party was not inconsistent with the assertion made on the applicant's behalf.
31. There can be no doubt that EC was a thoroughly dangerous terrorist. He had been radicalised and supported ISIS and its objectives. Thus I am entirely satisfied that the measures in the TPIM were all necessary. He had to be moved away from contacts who were also extremists. He says that he has now changed his views and has renounced his extremism. Time may tell whether that is indeed true, but he formed a view of what a good Muslim should seek. There is a serious risk in the circumstances that he can be persuaded by an apparently knowledgeable religious teacher that the radical approach is indeed correct. It is apparent that he has not told the truth about his involvement with Nadir and he is indeed fortunate that he is not serving a life sentence.
32. There are some positive signs which are in his favour. He has been attending an Access to Law course at a college and is doing well. He has applied for entry to study law at university. His course at the college will end in June and he hopes that he may go to university next September. There has to be reconsideration in June whether the TPIM is to continue and, if so, what measures will be needed.
33. He has raised particular issues in relation to his use of a computer. He needs use at home since the library at his college is not open over weekends and closes at 4.30pm (or 4pm on Fridays) during weekdays. If he is to have such use, there is a need to modify his computer which will invalidate its warranty. I am satisfied, as I said in the hearing, that it would be wrong not to ensure that the warranty or an equivalent was able to be maintained if the modifications were made. In addition, he has found difficulty in the association measure. The requirement in 9.3 that he provides details of the name and address of persons he expects to meet or, if he has met by chance, there is to be a further meeting. This makes his ability to mingle with fellow students very problematical. I see the force of this and some variation is I think needed to avoid this difficulty. Discussions between the solicitors and the Home Office representatives should be able to achieve a sensible compromise.
34. One submission raised by counsel on EC's behalf was that he was newly married (sadly since his imprisonment the marriage has broken down) and so would not be likely to have risked inevitable lengthy imprisonment if he had been party to the carrying out of the plot. He was formally engaged to Ala following the appropriate Muslim ritual the day before he left for Syria in January 2014. He admitted that he had told her that he might never return. She apparently was also an extremist. Those who are supporters of ISIS consider that their religious obligations transcend any personal or family concerns. Thus the possibility that his marriage would not be continued was not something which would have prevented him from his TRA.
35. He has been engaging in monthly meetings with a case worker whose function is to moderate extremist views and to ensure that any tendency to criminality is avoided. A report of 22 January 2017 was encouraging. He is recorded as having appreciated that violent jihad did not draw individuals closer to God or piety and that the 'entire corpus of Sirah literature was problematic'. The author regarded him as pleasant and interacting well and that his conversation had 'a palpable air of sincerity about it'. He was keen to continue to learn and to continue the sessions with the case worker. EC is obviously intelligent. His early life was difficult because of discord between his parents and his time being split between London and Pakistan. He was radicalised and obviously believed that this view of what Islam required was correct. He practises his religion and it is obviously important that he is not persuaded the wrong way again. It is in my view too early to be satisfied that he has indeed renounced his extremist views or that there does not remain a real risk that if he becomes friendly or involved with extremists he will not be persuaded that this approach is correct. Thus, subject to what I said in paragraph 33, at present there are no changes needed to the measures.
36. I now turn to EG. He was born in Saudi Arabia in December 1986. He lived in America where he committed an offence of armed robbery which resulted in an extradition warrant which has since been dropped. He has sought to belittle that offence, saying he was party to the theft of a mobile phone in which his confederate used a BB gun. Nonetheless, it showed a propensity to accept the use of violence in pursuing a criminal enterprise. In 2009 he moved to Australia where he lived until July 2013 when he came to this country with his wife. He had some experience in making videos and acting as a photographer. In addition, he had undergone a cookery course and was keen on cooking. He denied that he was or had ever been a committed Islamist nor did he have an extremist mindset. He had to accept that he had made extreme and thoroughly unpleasant comments in the TWB, but that was, he has said, a reflection of his emotional and intellectual immaturity. He lacked friends. He had in December 2013 met Shahid Janjua alias Abu Waleed who had included him in the TWB group. While he did not share the extreme views of Waleed and others, he was friendless and wanted to impress them. But he never would have involved himself in any TRA act nor did he. He thought the acquisition of the knife for Nadir was genuinely for his mother for proper culinary purposes.
37. He was friendly in Australia with at least one extremist, one Rumi. Analysis of EG's phone showed a masked individual holding a knife and the Koran. This was Rumi who posted similar images to the TWB group. In August 2014, EG obtained from Haddad what is described as a Shahada jacket. This jacket is black and has on it the black and white flag which ISIS flaunts.
38. He had been reported to the Australian police because of suspicions that he was involved with extremists who were a danger. The police did not take any action nor has it been established that he was so involved. However, he had had extremist friends. Further, the jacket had the wording 'Millatu Ibrahim AU' stitched on its front. This is said by the Security Services to be the Australian chapter of the militant group of the same name in Germany. Whether or not the connection exists, it is an extremist group with which EG associated in Australia. However, I do not think it is necessary or helpful to go into his Australian activities, which include dishonesty in stealing from his employer, since what matters is his activity in this country. Nevertheless, in judging whether his denial of holding extremist views is true, his involvement with extremists both in Australia and in this country is highly material.
39. He was not included in The Lads and there is no doubt that he was regarded as somewhat unreliable. But some of his messages on TWB are telling. Further, in addition to the Shahada jacket, he purchased a black flag which he photographed himself flourishing. He is not stupid and certainly by the autumn of 2014 it must have been clear to him that apparent involvement in and support for extremism such as exhibited by followers of ISIS could lead to real trouble for him. It is impossible to believe that he would have continued to express his support for acts of murder and other terrorism by those involved with ISIS unless they were his real views. This does not mean that he would necessarily have been party to the plot with which he was charged. His counsel made the point that others in TWB held extremist views but have not been either prosecuted or subjected to TPIM measures. That does not necessarily mean that they are not under suspicion by the authorities but even if they were in any event suspicion is not enough to take action against them.
40. It is instructive to refer to some of EG's messages since they show a clear support for violent action against unbelievers and support for beheadings. On 23 September 2014, in response to a message about US air strikes on ISIS targets, he stated "Allah give this kaffirs a humiliating death". Further, in response to Nadir's criticism of Anjem Chundary, a supporter of ISIS for his failure to provide an answer to the question whether it was acceptable to behead journalists EG stated, "All those need the chop chop". On 3 October 2014 in reference to a video which had shown the beheading of Alan Henning, he asked a member of the group who had seen the video "how was it - like butter" and asked whether there was "any moaning?" When given the information, he responded "Niceeee" and stated "see if you can find another 1 is (sic) couples of days time!". He accepted that he had used the expression 'Chop chop' to refer to beheadings, but said he also used it from time to time in connection with cooking. He said that he was unaware of the contents of Adnani's speech since he did not speak Arabic. However, the TWB messaging has reference to the translation into English of the speech and I have no doubt that he was fully aware of its contents. His messages show that he was or certainly put himself forward as a supporter of such violent activities.
41. He was involved in informing Nadir about the effective Victorinox knife and where to get it. It is to be noted that the messages on 5 November 2014 which deal with this follow the posting of a picture of a bearded man, Rumi, wielding a knife and a display of three knives showing the larger size of the Victorinox knife. It is said on his behalf that he did not in any way seek to avoid being shown on the camera in the kitchen shop when the knife was bought and that this is inconsistent with his involvement in the plot.
42. As I have said, he was clearly not fully trusted by Nadir and EC. But his role was the finding of the best knife and sharpener. I do not think that it is likely that he would have joined in any attack which was to be carried out by Nadir and EC, but he was the knife expert and must have known what the knife was required to do. I am satisfied that his attempt to excuse his extremist messages and continued involvement in TWB by saying it was no more than currying favour with some who had befriended him is simply not credible. I was not impressed with him as a witness. At one stage he even attempted to differentiate between beheading and his use of chop chop and killing.
43. When he was in prison awaiting his second trial, he was befriended by a fellow prisoner called Gilbert. Gilbert made a statement and gave evidence that EG had admitted that he had been involved in the plot. Gilbert was damaged in cross-examination since what he had said had been the occasion of the admission and the place where it had been made was shown to be impossible. But he undoubtedly did meet with and befriend EG and it is possible that he did not remember the precise location. Further, he denied, contrary to what became apparent, that a desire to try to reduce his sentence lay behind his evidence since he waited to supply it until his appeal against sentence for a serious fraud had been dismissed. That Gilbert was not regarded as a truthful witness by at least three members of the jury is clear from the disagreement since, if his evidence had been accepted, it is difficult to see that EG would not have been convicted.
44. Whether or not Gilbert's evidence is accepted, it is impossible to conclude that the applicant was not entitled to have regard to it as supportive of her conclusion that conditions A to C were met. I have been supplied with a transcript of the hearing on 23 September 2016 before Saunders J which led to a substantial reduction in Gilbert's sentence. Saunders J said that he did not argue with the view that Gilbert's evidence was credible and made the point that he ran the risk of retribution from Muslim extremists who might be locked up with him.
45. As in the case of EC, I have also had regard to closed material. I do not need it to be satisfied that EG had an extremist mindset and, as his messages showed, was supportive of ISIS and its methods. While I am not satisfied that he would have been present at an attack that does not lessen his risk as a terrorist. As I have said in relation to EC, family takes second place to extremists such as him. It may be that by doing no more than supplying the right weaponry he thought he would escape punishment for what he had done. But that does not diminish his risk.
46. Like EC, he has said that he has put his extremism behind him and is no longer to be regarded as a risk, even if the view is taken that he was. He has engaged with a case worker as did EC, but on a weekly basis. He has been involved in regular discussions of what Islam requires which does not include what ISIS stands for. He obviously has not admitted any previous extremism. It seems clear that he is apparently trying to understand why he should eschew any extremism. However, just as in EC's case, I am satisfied that he was a dangerous terrorist and that the measures in the TPIM were necessary to protect the public. Whether they will continue to be needed when there is consideration in June will no doubt depend on his progress and his attitude then. But there is now no need for any amendment.
47. I am aware that I have not in this judgment referred to every point raised by the parties. That is in my view unnecessary since I hope I have explained sufficiently why I have decided to uphold the applicant's case. I have of course considered all the matters raised on behalf of the respondents in particular.