“The power to make a control order against an individual shall be exercisable - except in the case of an order imposing obligations that are incompatible with the individual’s right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State”
“A non derogating control order - a) has effect for a period of twelve months beginning with the day on which it is made; but b) may be renewed on one or more occasions in accordance with this section.” a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.” a) has effect for a period of twelve months beginning with the day on which it is made; but b) may be renewed on one or more occasions in accordance with this section.” 3. S.2(5): “A non derogating control order must specify when the period for which it is to have effect will end.”
“The Secretary of State may renew a non derogating control order (with or without modifications) for a period of twelve months if he - a) considers that it is necessary for the purposes connected with protecting members of the public from a risk of terrorism for an order imposing obligations on the controlled person to continue in force; and b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism related activity.” a) considers that it is necessary for the purposes connected with protecting members of the public from a risk of terrorism for an order imposing obligations on the controlled person to continue in force; and b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism related activity.”
“44…[A] purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed… 46. For these reasons we consider that section 3(10) can and should be ‘read down’ so as to require the court to consider whether the decisions of the Secretary of State in relation to the controlorder are flawed as at the time of the court’s determination.”
“60. Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the acts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism related activity. Thus far we accept Mr Starmer’s submission as to the standard of the review that must be carried out by the court. . . . 64. The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to record such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instance: SSHD v Rehman[2003] AC 153 , Ireland v United Kingdom[1978] 2 EHRR 25 . 65. Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive, and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order ‘with the consent of the controlled person’ envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations.”
“…In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. … The question is whether a reasonable man would be of that opinion having regard to the information which was in the mind of the arresting officer.”
“Furthermore, I have had the opportunity of seeing and hearing AM give evidence. In so doing, he is, in my judgment, highly intelligent, calm and cautious beyond his years. He was only prepared to say in oral evidence whatever was contained in his written evidence. He is strong minded and disciplined. In the face of the overwhelming evidence against him, his firm consistent denials are, in my judgment, simply untrue. They have been maintained with a degree of calmness and self confidence which, in my judgment, is consistent with the view of the Security Service that he is a disciplined, trained and committed person whose commitment remains unimpaired.”
“In my judgment, having reviewed the evidence and having had an opportunity to assess AM, the level of seriousness of the risk he poses is very high. In my judgment there is overwhelming evidence that he was a person prepared to martyr himself and, in so doing, to kill large numbers of other people. In his dealings with the SSHD and the court, in my judgment, by his denial of any past involvement in terrorist related activity and of any intent so to be involved in the future, he has repeatedly, systematically and carefully lied. It is my judgment that he is an intelligent, capable, well-trained individual who remains committed to terrorist activity. His past involvement has involved the use of electronic communication including by mobile telephone. The fact that, save for two matters, there are no open allegations of breach by him of the terms of the control orders does not, in the light of the foregoing, persuade me that he is a person for whom a light touch series of obligations is remotely appropriate. In my judgment the SSHD was entitled to impose more onerous obligations than were initially imposed.”
“This matter should be ventilated before the Court of Appeal because of its importance and the rarity of decisions at this stage of the process.”
“188. I reject the contentions of the open and closed advocates for [the appellant] that, in particular, the gist served in July 2009 is insufficient to discharge the Article 6 burden. I have summarised these in the in camera judgment. He also knows that the view of the Security Service is that he remained willing to conduct an attack notwithstanding AY’s arrest and disruption of the airline plot. 189. In my judgment, the statements of the case against him set out clearly the allegations which are at the crux of the case against [the Appellant] and provide sufficient detail to enable [the Appellant] to give instructions effectively to enable his case to be put by his advocates. [The Appellant] in his oral evidence and in his written evidence has responded fully to these contentions by denying that he ever used phone 235, thereby denying the basis upon which it is said he was Izzy.”
“198. I have considered whether the decision of SSHD is flawed because of improper delegation to the Security Services. I am satisfied that it is not. It is plain that the Security Services has had significant input in terms of the provision of evidence and advice to the Secretary of State, but it is also clear from the evidence of Susan Hadland that the final decision is that of the Secretary of State’s, and that it is not inevitable that the Secretary of State accepts the advice given by the Security Services. 199. It is said that the Secretary of State failed to pursue various lines of enquiry, such as the impact of AY’s trial result, looking at the full phone record, making enquiries about the renewal of the passport, the statements made by AM himself after the imposition of the first control order and his evidence of the alleged approaches made by the Security Services to his family and friends, who it is said expressed surprise that the contention that he was involved in terrorist activity. 200. I have already indicated that the outcome of AY’s trial has very little, if any, relevance to these issues for the reasons I have indicated. 201. The phone, open and closed, evidence as to the identity of Ismail, the holder and user of phone 235, was the best evidence. In those circumstances, whatever other records might have been of use of that phone at an earlier usage, the Secretary of State had evidence that AM used that phone for terrorist related purposes. She also had the evidence, already referred to, that AM claimed to be Ismail when stopped by the Royal Navy. 202. As for the renewal of the passport, the Home Office was able to obtain information about the expiry date of his original passport. 203. As for his witness statements and the alleged approaches to him made by the Security Services: AM’s continued and continuing denial of any involvement in the airline plot, or any intention to be involved in terrorist activity, whether in his witness statements, or from the views of those who claim they have been approached by the Security Services could add nothing in the face of the overwhelming evidence of his past involvement and future intentions. I have considered these matters and the view to which I have come is the same as that of the SSHD.”
“It is said that the evidence of [the Appellant] discloses that the Security Services either fabricated the case against him, or used the control order as a tool, in either case for the purpose of persuading him to become an informant against Al Qaeda.”
“205. The case of fabrication has scarcely been advanced, except through AM’s evidence. The more significant argument is that it is said that the Security Service’s assessment is wrong but, nonetheless, they have used the threat of a control order as a lever to try to persuade him to become an informant, even though they may not have believed that he posed a threat such as to justify a control order. There is the alleged use of threats of what might happen to him or his family if they were to go abroad. He is allegedly told that he is running out of time to talk to them pending legal proceedings. They have allegedly said that Al Qaeda would no longer be interested in him and that the Security Services did not think that he was a particularly dangerous extremist. They allegedly offer him a future which would be exciting and rewarding and make veiled hints of money to be available for him if he were to speak to them about Al Qaeda. 206. In my judgment, having heard all the evidence I am satisfied that the decision to impose the control order did not involve any ulterior purpose. The Security Services have a number of functions, the principal of which is securing the safety of the state. The making of a control order by the SSHD, based on evidence obtained and advice given by the Security Services, is one only of the tools available. There is no obligation on the Security Services to advise that a control order be made at any particular point in their investigation of an individual. There are other options available, for example, to prosecute him. 207. Without confirming in this instance whether or not AM was in fact approached, as a matter of principle, in my judgment, in discharging their function of assessing and advising SSHD on risks that individuals pose the Security Service would be entitled to have regard to the extent, if any, of their willingness to engage with them, or to admit what they have done in the past, or to give them information about their activities and the activities of those of whom they were aware, or to their willingness to turn away from such activity in the future. In any event, decisions are taken by the Secretary of State and not the Security Service. Accordingly, I reject the contention that the Secretary of State’s decisions were unlawful, as having been made for an ulterior purpose.”