England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/09/2010

The Hon. Mr Justice Mitting :

1. On 15 February 2010 I gave permission to the Secretary of State to make a non-derogating control order against CA. The order was made and served on him on 16 February 2010. Obligation (2) required him to reside at the flat in Crawley at which he lived with his wife and two children. In the letter which accompanied the control order and explained its obligations, the Secretary of State notified CA that he would be relocated to an address in Ipswich on 23 February 2010. The order was modified from that date and CA relocated to the address in Ipswich. By an undated notice of appeal, CA immediately appealed under s10(3) of the Prevention of Terrorism Act 2005 against that modification. I heard his appeal on 27 and 28 July 2010 and announced my decision at the end of the hearing: that the appeal would be allowed, that he should be permitted to return to his home in Crawley, subject to obligations which would be notified to him by the Secretary of State within 14 days. In this open judgment, I give the open reasons for that decision. A closed judgment accompanies it.
2. Shortly before I announced my decision, I invited CA to consider, with his legal advisers, whether he wished to exercise his right to request the Court to discontinue the review of the control order under s3(10), which had been set for a week in November 2010. I made it clear that my decision on his appeal was not conditional upon his response. It was that he did request that the review be discontinued. He does not, therefore, now dispute that the Secretary of State had, and continues to have, reasonable grounds to suspect that he has been involved in terrorism-related activity and that it was and remains necessary for purposes connected with protecting members of the public from a risk of terrorism to make a control order imposing obligations upon him. That request has two consequences: the Court must discontinue the review (s3(14)) and I have determined his appeal on the footing that the two grounds for making and upholding a non-derogating control order are established. For the avoidance of doubt, that premise does not inhibit CA from contending in the future that it is no longer necessary for purposes connected with protecting members of the public from a risk of terrorism that the control order and its individual obligations should remain in force or from appealing against any individual obligation. For present purposes, it is a significant indication of good faith on his part.
3. The Appellant is a British citizen, born in Crawley of parents of Pakistani origin who have spent the whole of their adult lives in the United Kingdom. He is now 27 years old. His wife is also 27, a British citizen, born and raised in Crawley. They have known each other since the age of 12. They married in June 2005 and have two children, a son aged 3, and a daughter aged 1. They married for love and, despite the buffeting which the marriage has received from this year's events, it remains a strong union. CA's wife has produced three witness statements and gave oral evidence on the second day of the hearing. She was an impressive witness and person. I accept the truth of what she has said without reservation, Her evidence has persuaded me that her husband's relocation to Ipswich has imposed an unendurable strain upon her and risks the permanent breakdown of the marriage – an event which, if it were to occur, would not only have an adverse impact upon her and her children, but might also increase the risk of re-engagement in terrorism-related activities by CA.
4. The case against CA is principally based upon a trip which he made to Pakistan in June 2008 (including the circumstances in which he made it and the people with whom he associated beforehand and when there), his unsuccessful attempt to return to Pakistan in July 2008 and a further planned, but aborted, trip to Pakistan, with some of those who had travelled to Pakistan in June 2008, in March 2009; and upon the presence in Crawley of a number of individuals, including Luciano Matteo and Ismail Smith, with whom he had associated. I analysed the June 2008 trip to Pakistan and later aborted trips in the control order cases BG and BH [2009] EWHC 3319 (Admin) and was party to a decision which also analysed the June 2008 trip in a SIAC appeal by HS (judgment 29 January 2010). For the reasons set out in the open and closed judgments in those cases, I am satisfied that the trip to Pakistan in June 2008 and the attempts to return were for terrorism-related purposes, to which CA was a knowing party. His wife told me, in oral evidence, that he had told her that the purpose of his visit to Pakistan in June 2008 was to see his dying grandfather and to visit family members in Pakistan and that his aborted trip in March 2009 was to pay his respects to his grandfather who had died several months before. She believed him and I believe her when she tells me that she accepted his declared intent at face value. It has come as a profound shock to her that in a very significant respect, he was living a lie. It has caused her to re-evaluate her marriage. She said repeatedly that she did not then believe that her husband had extremist views or had undertaken terrorism-related activities, "but now it is different". Her knowledge of what her husband did is incomplete. (For reasons which I do not claim to understand, she was advised not to press him for answers). She abhors extremism in any guise. Any resumption of terrorism-related activity by him would almost certainly result in the withdrawal of his wife and children from his life. He realises that that is so. Although he has not given oral evidence, I have no reason at all to doubt that he genuinely loves his wife and children and that permanent separation from them would be a grievous blow to him. The imperative need to avoid it is a powerful constraint on any resumption of terrorism-related activities by him. The objection, which Mr Hill QC did not raise, but which must nonetheless be addressed is that if he was willing to take that risk before, he might do so again. That risk cannot wholly be excluded, but I believe it to be small. The difference now is that he knows that his wife has good reason to suspect what he had been up to and has made her views plain about any resumption.
5. The strain imposed upon CA's wife by his removal to Ipswich has been exacerbated by family pressures. In her own words, she comes from a liberal extended affluent family. Her parents disapproved of her marriage to CA. The birth of their grandson, as is the way of things, helped acclimatise them to the fact that CA had become part of their family. Action taken against him by the authorities – his arrest in August 2008 and November 2009 and the imposition of the control order upon him in February 2010 – re-aroused their hostility towards him. She has come under constant pressure from them to give him up and to return, with the children, to live with them. Despite all of these pressures, she has striven to ensure that both sets of grandparents see as much as possible of the two children and to re-establish family unity or, at least, tolerance.
6. CA's wife has attempted to live with him in Ipswich. She has spent about 4 weeks in all there, with the children. She has found the experience stressful, for reasons which I need only outline: antipathy to Muslims on the part of many of those she has encountered there, manifested in two unacceptable incidents of ill-mannered bigotry and the distress which her son displays at his separation from home and wider family when they go to stay with his father and from his father when they return home. She says, and I accept, that she cannot cope without the support of both sets of grandparents and her many relatives who live in Crawley. She is an intelligent, independent minded and resourceful woman. For her to make that confession demonstrates the unendurable strain which present circumstances impose upon her. The reports of Dr Blackwood and Dr Helps support the clear impression which I have formed about their impact.
7. In his closing submissions, Mr Hill QC accepted that it was not reasonable to expect CA's wife and children to go to share the house which he now occupies in Ipswich for the duration of the control order. He nevertheless submitted that the risk to the public which would arise if CA were to resume terrorism-related activities was such as to preclude his return to Crawley. He submitted that either he should remain, essentially on his own, in Ipswich or that the possibility of relocation of the family to another town away from Crawley should be explored. The second possibility arose during the course of the hearing. It would deal with the hostility perceived by CA's wife to exist in Ipswich towards her and her family; but it would still substantially remove from her the support which she needs from her wider family in Crawley and would do nothing to permit her to heal the breach between her parents and CA, without which reasonable family life cannot be fully resumed. I am satisfied that she would, rightly, view such a move with almost the same despair that she views the current situation. The first alternative is, of course, what she seeks to avoid. I believe that, unless CA can resume family life with his wife and children in Crawley, there is at least a substantial risk that this otherwise strong marriage will fail. Even viewed from the proper, but focussed, viewpoint of minimising the risk to the public from terrorism-related activity by CA, that is not a risk which should be run. If his marriage fails, he may well become embittered against British authorities and revert to extremist views and actions. What is, in my judgment, the most significant constraint upon him doing so would disappear.
8. As Mr Hill acknowledges, the determinative issue in this appeal is proportionality. The approach which I must adopt is that set out in paragraph 64 and 65 of the judgment of the Court of Appeal in SSHD v MB [2007] QB 415. I do pay a degree of deference to the decision taken by the Secretary of State, on Security Service advice, that it is necessary for the protection of the public from a risk of terrorism to maintain the relocation of CA to Ipswich. Breaking up loose groupings of suspect individuals, by dispersion of some of them, is a legitimate means of minimising that risk. But for the circumstances of CA's family, I would unhesitatingly have upheld that measure in his case. Even taking into account the adverse impact upon his family, I would have been hard pressed to hold that the Secretary of State's decision was open to challenge on Wednesbury principles. The principle of proportionality, however, requires me to subject the measure to intense scrutiny and to explore alternative means of achieving the same result. The decision is finely balanced and difficult. There are reasons to believe that CA intends to put terrorism-related activity behind him. His request under s3(14) is a public indication of his intention to do so. His apparent intention is supported by the powerful incentives referred to above. In the end, the issue is a matter of timing. Up to now, the Secretary of State and her advisers have concluded that it is too soon to take the risk of permitting CA to return to Crawley and that preventative measures, such as the imposition of a long curfew and of a highly restrictive boundary cannot be relied upon to remove the risk; but she and they have always accepted that good conduct on his part over a prolonged period can demonstrate that the risk has disappeared or been reduced to an acceptable level. I acknowledge the existence of the risks and the fact that restrictive measures cannot remove them. But I do place more heavily in the scales the circumstances of CA's family, for essentially three reasons: full reunion will mitigate the risks; permanent separation, the risk of which is real, will exacerbate them; and it is not justifiable to secure the undoubted advantage of removal from Crawley at the price of the unity and welfare of this particular family.
9. For those reasons, I allow this appeal. The conditions upon which CA will be permitted to return to Crawley will be stringent. He will be aware that any breach of any of them will not only be a criminal offence, but will also destroy that which he claims to hold dear: the unity and welfare of his family.