Irfan, R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 1471

Case No T3/2012/0818

[2012] EWCA Civ 1471

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, QUEEN’S BENCH DIVISION

DIVISIONAL COURT, Laws LJ and Owen J

Ref: CO/4638/2011

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/11/2012

Before

LORD JUSTICE MAURICE KAY,

Vice President of the Court of Appeal, Civil Division

LORD JUSTICE MUNBY

LORD JUSTICE TOMLINSON

Between

THE QUEEN ON THE APPLICATION OFAppellant

MOHAMED IRFANAppellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr Tim Otty QC and Mr John Jones (instructed by Arani Solicitors) for Appellant

Mr Jonathan Swift QC and Ms Melanie Cumberland (instructed by Treasury Solicitors) for Respondent

Hearing Hearing date : 23 October 2012

Judgment

Lord Justice Maurice Kay :

[1]n 17 January 2008 Mohamed Irfan (the appellant) pleaded guilty in the Crown Court at Leicester to an offence of engaging in conduct with the intention of assisting in the commission of acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. He was sentenced to four years’ imprisonment. He had spent a significant amount of time on remand which led to his being released on licence on 4 February 2009. The offence to which he had pleaded guilty was a relevant terrorism offence for the purposes of Part 4 of the Counter-Terrorism Act 2008 (the 2008 Act). As a result, upon release he became subject to the notification requirements set out in sections 47–52 of that Act. For a person sentenced to less than five years’ imprisonment, such notification requirements endure for 10 years following release. During the 10 year period, a person in the position of the appellant has no right to apply for a review of the need for the notification requirements.

[2]In F and Thompson v Secretary of State for Justice

[2011] 1 AC 331

the Supreme Court held that similar notification requirements in relation to convicted sex offenders pursuant to the Sexual Offences Act 2003 which would endure for the rest of a person’s life without a right to apply for a review were incompatible with

Article 8 of the European Convention on Human Rights

and Fundamental Freedoms (ECHR). The issue on the present appeal is whether such incompatibility also infects the 10 year notification requirement under the 2008 Act. On 20 March 2012 the Divisional Court found no such incompatibility or breach of the appellant’s Article 8 rights:

[2012] EWHC 840 (Admin)

[3]As nothing turns on the precise wording of sections 47-52 of the 2008 Act, I shall adopt the summary used by Laws LJ in the Divisional Court which was in turn derived from the appellant’s grounds for judicial review:

“17. A person subject to the notification requirements must notify the police of the information specified in section 47(2), including his date of birth, national insurance number, home address and any other address where he regularly stays, and any information prescribed by regulations made by the Secretary of State. The person must also notify the police of any other address not previously notified where he stays for a total of seven days in any year … 18. The Act requires that notification be made by attendance in person at a local police station and orally notifying a police officer or other person authorised to take notifications … On attending the station, the person is bound to accede to any request by the police officer or other person to whom notification is made to take his fingerprints or photographs … 19. Notification of the information made in section 47(2) must be made in accordance with the following time frame: (a) initial notification – with the period of three days beginning with the day on which the person is dealt with in respect of the offence in question [but disregarding time spent serving his sentence]; (b) periodic renotification – within a year’s time of each and every previous notification; (c) notification of changes – if the person changes his name or home address he must notify the police of this. He must also notify the police on being released from custody. On any such occasion he must renotify the police of all the information stated in section 47(2). 20. By section 52, the Secretary of State is empowered to make regulations requiring a person subject to the notification requirements who leaves the United Kingdom to notify the police of their departure, and of any subsequent return. The relevant regulations are the Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009 … They apply in respect of any proposed absence from the country lasting three or more days. The person must disclose the intended date of departure, destination and point of arrival … Further, regulation 3 requires him to disclose, so far as he holds it, the following information: point of arrival in each successive country he intends to travel to; name of carriers he intends to use to leave the UK and to travel between countries; address for first night outside the UK; and intended date and point of arrival of return to the UK. Where the person knows the information more than 7 days in advance of his trip, he must provide it 7 days in advance unless he has a reasonable excuse for not doing so. Otherwise it must be provided no later than 24 hours prior to departure … He must notify the police within three days of his return to the UK. The method of notification is, again, by attendance in person at a police station. … 21. It is an imprisonable offence … to fail without reasonable excuse to comply with any of the notification requirements, (including under the Regulations). The offence carries a maximum of five years’ imprisonment on conviction upon indictment. 22. The period for which persons are subject to the notification requirements are set out in section 53 and are as follows: (a) 30 years in the case of a person aged 18 on conviction and sentenced to 10 years custody or more, or imprisonment/detention for public protection under the Criminal Justice Act 2003, section 225; (b) 15 years in the case of a person aged 18 on conviction and sentenced to 5 years custody or more, but less than 10 years; (c) 10 years in any other case. There is no provision for review of the continuing necessity for the notification requirements, or for them to be discontinued early. They apply automatically to any applicable offender and continue in all cases until the end of the prescribed period.” (a) initial notification – with the period of three days beginning with the day on which the person is dealt with in respect of the offence in question [but disregarding time spent serving his sentence]; (b) periodic renotification – within a year’s time of each and every previous notification; (c) notification of changes – if the person changes his name or home address he must notify the police of this. He must also notify the police on being released from custody. On any such occasion he must renotify the police of all the information stated in section 47(2). (a) 30 years in the case of a person aged 18 on conviction and sentenced to 10 years custody or more, or imprisonment/detention for public protection under the Criminal Justice Act 2003, section 225; (b) 15 years in the case of a person aged 18 on conviction and sentenced to 5 years custody or more, but less than 10 years; (c) 10 years in any other case. There is no provision for review of the continuing necessity for the notification requirements, or for them to be discontinued early. They apply automatically to any applicable offender and continue in all cases until the end of the prescribed period.”

[4]Sections 41-43 certify the offences to which Part 4 of the 2008 Act applies. They are mainly offences under the Terrorism Act 2000 and the Terrorism Act 2006. They include engaging in conduct with the intention of assisting in the commission of acts of terrorism, contrary to section 5(1) of the 2006 Act. This is the offence to which the appellant pleaded guilty.

The appellant’s offence

[5]At the time of his appearance in the Crown Court, the appellant was 32 years of age and had no previous convictions. His conviction arose out of his association with a major terrorist, Parviz Khan. Khan had plotted to murder a Muslim soldier in the British Army, although it is not suggested that the appellant was involved in that. The appellant assisted Khan in the export of goods from the United Kingdom to Pakistan for use by Al-Qaeda against allied forces. According to Henriques J, the sentencing judge, the goods comprised “almost every type of equipment used in guerrilla warfare”. In passing sentence, Henriques J said:

“In April of 2006 you were heard on the probe describing electrical goods. You were seen to be carrying goods. You assisted Khan in his shopping. You accompanied Khan to the airport. It is clear to me that you and Khan had few, if any, secrets from one another. He confided in you. You gave him advice on goods. You went shopping together. You are described by your own counsel as the camp follower of a fanatic. You did, however, approve of his views. Extremist literature was found at your house. I conclude that … you would not have become involved in terrorist activity but for Khan’s drive and overbearance … I accept you never travelled to Pakistan. I accept that you would not act as you did again. You acted as assistant and confidante of Khan. I accept that whilst you ran errands for him, at 32 years of age with a GNVQ to your credit, it is difficult to describe you merely as an errand boy. But Khan’s personality was clearly stronger than your own. You were doubtless led into criminality by him as were all your co-defendants.”

I infer that the four year sentence embraced a discount of two years in relation to the guilty plea.

Discussion

[6]As I have related, the notification provisions of Part 4 of the 2008 Act closely resemble those of the Sex Offenders Act. The principal differences concern the subject-matter (terrorism as opposed to sexual offences) and the duration of the requirements (the periods prescribed by the 2008 Act are all of fixed duration whereas, for persons sentenced to imprisonment or detention for 30 months or more in respect of prescribed sexual offences, the requirements imposed by the Sex Offenders Act were for an indefinite period, with no right to a review). The first issue in the present case is whether the ECHR-incompatability of the indefinite period with no right to a review as declared by the Divisional Court, the Court of Appeal and the Supreme Court in F pervades the fixed ten-year period with which we are concerned. It is therefore necessary to identify precisely what F decided.

[7]Lord Phillips (with whom Baroness Hale and Lord Clarke wholly agreed and with whom Lord Hope and Lord Rodger agreed save on a secondary issue) said (at paragraph 4) that the ground upon which the claims had succeeded in the courts below was a narrow one and (at paragraph 5) that “the only issue raised by these appeals is a general one. Does the absence of any right to a review render lifetime notification requirements disproportionate to the legitimate aims that they seek to pursue?” Having reviewed the domestic and Strasbourg jurisprudence, he said (at paragraph 51):

“This case turns … on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their Article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans.”

He resolved this “one critical issue” in the following passage (at paragraph 57):

“I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high standard of review.”

It is clear that the reference to “an appropriately high standard of review” is to a threshold “as to the time that an application could first be made, the frequency of the applications and what has to be proved in order to succeed on the review”: paragraph 39.

[8]It seems to me that, in identifying “the only issue” and “the critical issue”, Lord Phillips was deliberately confining himself to “lifetime notification”. The ratio of F is limited to the disproportionality of a lifetime notification requirement with no right to a review. It is not binding authority to the effect that any notification requirement of significant finite duration with no right to a review is, without more, disproportionate. The question is whether it impacts on the ten year requirement in the 2008 Act.

[9]The leading Strasbourg authority is Bouchacourt v France (5335/06, 17 December 2009). It was considered by the Supreme Court in F. It was concerned with a register of sex offenders and related notification requirements. The registration in the case was for thirty years in respect of an offender who had been sentenced to ten years’ imprisonment. In a case of less than ten years’ imprisonment the period would have been twenty years. The statutory provisions included a right to apply for removal if maintenance was no longer relevant. In essence, the Court held that the provision for independent review “provides adequate and sufficient safeguards in relation to respect for private life, with regard to the seriousness of the offences justifying registration on the sex offenders’ register” (paragraph 68). Accordingly, the duration of the requirement was not disproportionate. I do not consider that the case purports to deal with a requirement of ten years’ duration, even in the context of sex offenders.

[10]The next point, and one to which considerable importance was attached by the Divisional Court in the present case, is that we are concerned with a terrorism offence. Laws LJ said (at paragraphs 31-32):

“In my judgment … the reasoning of the Supreme Court in F as regards the notification requirements there in issue cannot simply be read across to what I regard as the very different context of the measures in hand in the present case. As Mr Hunt, a Grade 6 civil servant in the Office of Security and Counter-Terrorism at the Home Office says [in] his witness statement: ‘Terrorism offences … are regarded as having characteristics that set them apart from other offending. Terrorism is driven by a variety of factors, including ideological beliefs … individuals convicted of terrorism offences have, by their actions, shown themselves to be susceptible to terrorist ideology and to taking an active role in terrorist ideology.’ It seems to me … that the potential grip of a violent fanaticism is something much less comprehensible and therefore much more remote than, for example, the power of sexual obsession. I do not think that it can confidently be said of terrorist offences, as Lord Phillips said of sexual offences … ‘… it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further … offence can be discounted to the extent that continuance of notification requirements is unjustified.’ The terrorist offender may be driven by a political ideology, a religious fervour or, as in this case, the precepts of a much stronger personality than his own; or by any combination of these. He may be willing to put his own life second. These possibilities must entail a wide range of unpredictable outcomes.”

He was nevertheless prepared to accept (at paragraph 33) that there may be “some wholly exceptional cases” where a terrorist offender can be said to pose no significant risk for the future. ‘Terrorism offences … are regarded as having characteristics that set them apart from other offending. Terrorism is driven by a variety of factors, including ideological beliefs … individuals convicted of terrorism offences have, by their actions, shown themselves to be susceptible to terrorist ideology and to taking an active role in terrorist ideology.’ ‘… it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further … offence can be discounted to the extent that continuance of notification requirements is unjustified.’

[11]It is this concession, which is not disputed on behalf of the Secretary of State, that lies at the heart of the case for the appellant. Mr Timothy Otty QC submits that the “no significant risk” paradigm is acknowledged in other jurisdictions which deal with proven or suspected terrorists. For example, in Secretary of State for the Home Department v AV

[2009] EWHC 902 (Admin)

, Mitting J revoked a control order in the light of changed circumstances and a change in attitude on the part of the controlee. Indeed, in the case of this appellant, the sentencing judge accepted that he “would not act as he did again”.

[12]I do not consider that these examples detract from the general thrust of what Laws LJ said. Terrorism is different from sex offending. Notwithstanding the seriousness of sex offending, terrorism offences have unique features which compound concern. A single act can cause untold damage, including loss of life, to a large number of people by someone motivated by extreme political or religious fanaticism. If anything calls for a precautionary approach, it is counter-terrorism. But, of course, even here the approach must not be disproportionate.

[13]The notification requirement in the present case is one of ten years from the date of release from imprisonment on licence. Is there anything disproportionate about such a requirement, even in the absence of a right to a review? In my judgment, there is not. I come to this conclusion for a number of reasons. First, like the Divisional Court, and as I have explained, I consider that terrorism offences fall into a special category. Secondly, the context is one in which it is appropriate to accord considerable weight to the view of Parliament. With respect, I think that this is the better way to express what Laws LJ described as “the proper margin of discretion” or “a broad margin of appreciation” but it is not necessary to engage in largely theoretical discourse. Thirdly, it is important to concentrate on the actual requirements. They do not remotely resemble the stringent conditions which attached to many control orders – for example, the sixteen hour curfew in AV. This appellant was released on licence on 4 February 2009. Since then, he has had to attend police stations in Birmingham once a year, each time for about thirty minutes. He has never informed the West Midlands Police that he intends to stay away from his home address or that he intends to travel abroad. The fact that he is subject to the statutory notification requirements is stored on the Police National Computer for the purpose of monitoring his compliance with the notification requirements but any information provided by him is not stored on the Police National Computer but is recorded and stored by the West Midlands Police. Access to it is limited to officers with appropriate security clearance and for purposes related to the notification requirements and the investigation of terrorism. Police officers in plain clothes have visited his home, initially once per month but now less frequently. They have stayed for about five minutes each time but have not entered the premises. Whilst, as is now conceded on behalf of the Secretary of State, all this amounts to an interference with the appellant’s private life for the purposes of Article 8, it is essentially “light-touch” when set against the legitimate aim of the prevention of terrorism, or (in Article 8 terms) “the interests of national security” and “the prevention of disorder or crime”. It is important to keep in mind the gravity of the disorder or crime which is being sought to be prevented.

[14]Fourthly, even if it is the case that there may be exceptional cases of “no significant future risk”, their possible existence does not preclude a general requirement of relatively moderate interference in a context such as this. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport

[2008] 1 AC 1312

, Lord Bingham said (at paragraph 33):

“… legislation cannot be framed so as to address particular cases … A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.”

In my view, that resonates here. Given the relatively moderate intrusion caused by the interference with the private lives of convicted terrorists generally, and having particular regard to the interference with the private life of this appellant, I do not think that it can be said that either the scheme or its application to the appellant is disproportionate. I do not consider that the statute is incompatible with Article 8 or that the appellant is a victim within the meaning of section 6 of the Human Rights Act 1998.

[15]I should refer to three further matters. The first is that Mr Otty seeks to rely on the fact that the appellant is no longer subject to restrictive measures pursuant to the Terrorism (United Nations Measures) Order 2006 as he had been between March 2007 and April 2010. The suggestion is that that demonstrates the disproportionality of requiring him to remain subject to notification requirements under Part 4 of the 2008 Act. In my judgment, it does not. The regime applicable to a person who is designated pursuant to the 2006 Order is highly intrusive, involving the freezing of his assets and the prohibition of other persons from making assets available to him. It can only be imposed and maintained if specific conditions are satisfied: see A v HM Treasury

[2010] 2 AC 534

. There is no inconsistency between the discharge of restrictions imposed pursuant to the 2006 Order and the proportionality of the ongoing and significantly less intrusive requirements of Part 4 of the 2008 Act.

[16]The second point is that, following the declaration of incompatibility in F, the Secretary of State made the Sexual Offences Act 2003 (Remedial) Order 2012 which permits applications for review during the subsistence of indefinite notification requirements. In the case of an adult, his right to apply for a review arises after 15 years. The Secretary of State plainly considered that this would be ECHR-compatible and, in so doing, must have interpreted F (as have I) as being concerned with the mischief of indefinite notification requirements with no right of review. It would be inappropriate for me to say anything about the 15 year qualification period, one way or the other.

[17]The third point to note is that in Hay v Lord Advocate [2012] HCJAC 28, which also concerned the Sex Offenders Register, the High Court of Justiciary (Lord Justice Clerk, Lord Bracadale and Lord Osborne) concluded that the ratio of F “does not extend to the imposition of fixed periods of registration” (paragraph 55).

Conclusion

[18]It follows from what I have said that I would dismiss this appeal.

Lord Justice Munby:

[19]I agree.

Lord Justice Tomlinson:

[20]I too agree.