AF v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2007] EWHC 2001 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2007] EWHC 2001 (Admin)Case No Case No: PTA/4/2007Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
AFAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondant
Before
Mr Justice GoldringZubair Ahmad (instructed by Middleweeks Solicitors ) for the AppellantTim Eicke and Andrew O'Connor (instructed by Treasury Solicitor) for the DefendantJeremy Johnson (instructed by Treasury Solicitor) Special AdvocateHearing dates: 23-24 My 2007
[1]Mr Justice Goldring: Introduction The appellant is a dual UK/Libyan national. His father is Libyan, his mother British. As necessary I shall refer to him as AF, as did Mr. Justice Ouseley in previous proceedings concerning him. On 24 May 2006 the Secretary of State made a non-derogating Control Order against him pursuant to section 2 of the Prevention of Terrorism Act 2005 ("the Act"). That order obliged him to remain in his flat for 18 hours a day and contained other restrictions. On 11 September 2006, following the decision of the Court of Appeal in SSHD v JJ and Others [2006] EWCA Civ 1141 , the Secretary of State revoked that order and made a further one. That further Order required him to remain at his flat for 14 hours a day. It too contained other restrictions.[2]In an open judgment generally promulgated on 30 March 2007, Mr. Justice Ouseley decided that the restrictions imposed by the second order cumulatively amounted to a deprivation of the appellant's liberty. It was a nullity: see Secretary of State for the Home Department and AF [2007] EWHC 651 (Admin) . That decision is one of the control order cases currently being considered by the House of Lords.[3]On 29 March 2007 Mr. Justice Ouseley granted the Secretary of State permission to make the present control order. It, and the order quashed by Mr Justice Ouseley, were made on substantially the same, if not identical, grounds.[4]The appellant now appeals the Secretary of State's refusal under section 10(3) of the Act 2005 to modify the Order of 29 March 2007. An application under section 3(10) to quash the Order is to be heard on 16 October 2007 after the decision of the House of Lords. The relevant statutory provisions[5]I shall concentrate on those relevant to the present appeal.[6]By section 7(1) of the Prevention of Terrorism Act 2005:
"If while a non-derogating control order is in force the controlled person considers that there has been a change of circumstances affecting the order, he may make an application to the Secretary of State, for... (b) the modification of an obligation imposed by the order; and it shall be the duty of the Secretary of State to consider the application..."
[7]By section 10(3):
"Where an application is made by the controlled person to the Secretary of State for. (b) the modification of an obligation imposed by such an order, that person may appeal to the court against any decision by the Secretary of State on the application... (5) the function of the court...on an appeal against a decision not to modify such an obligation is to determine whether the following decision of the Secretary of State was flawed... (b) in the case of an appeal against a decision on an application for the modification of an obligation, his decision that the obligation continues to be necessary for that purpose. (6) In determining the matters mentioned.. .the court must apply the principles applicable on an application for judicial review. (7) If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are... (c)...to give directions to the Secretary of State...for the modification of the obligations it imposes. (8) In every other case the court must dismiss the appeal."
[8]What it seems to me to come to is this. Before the obligation of the Secretary of State to consider the application arises, the controlled person must consider there has been a change in circumstances affecting the order. Mr. Ahmad on behalf of the appellant submitted that objectively there has been such a change. Some 4 months have passed since the Order was imposed. A number of things have changed since then. The times of services at mosques have changed. It is light for longer. The amended open statement suggests there have been changes in the security considerations. Mr. Ahmad further submitted that the advancing of the proposed modifications itself amounts to a change of circumstances affecting the order, or so the appellant considers. Although Mr. Eicke on behalf of the SSHD did not accept there has been a change of circumstances affecting the need to continue the present obligations, he accepts the Secretary State did consider the proposed modifications on their merits and accordingly that I should review the decision.[9]I am then required to decide whether in the light of the changes which the controlled person considers there have been affecting the order, the Secretary of State's decision that the obligation in question continues to be necessary for its purpose is flawed. In other words, it is assumed that the obligation was necessary when it was made some four months ago.[10]As well as criticising the Secretary of State for the decision on its merits, Mr. Ahmad submitted that he failed to give adequate reasons and to engage in dialogue, as envisaged by section 7(2): see paragraph 65 of MB. That alone would be sufficient to quash the decisions regarding modification.[11]I agree with Mr; Eicke as to the correct approach to reasons and dialogue. The issues in this appeal are dictated by the provisions of section 7(1) and 10(5). I have to decide whether the decision of the Secretary of State that the obligation in question continues to be necessary was flawed. If I conclude it was not, that it may have been inadequately explained or that there was insufficient dialogue regarding it does not seem to me to mean the decision must be quashed. It is not a review of the process. The question is whether the decision that the obligation in question continues to be necessary is flawed. A failure adequately to explain might impact on the court's decision as to whether the obligation in question continues to be necessary. A failure to engage in dialogue may result in the Secretary of State wrongly deciding that an obligation continues to be necessary when it does not. As it seems to me, it is only to that extent that failures sufficiently to give reasons or engage in dialogue may be relevant.[12]Be that as it may, when I take into account both what is said in the open and closed statements, it seems to me the reasons are adequately explained: moreover that any, failure to engage in dialogue was not such as would render any decision reached flawed. Calling witnesses[13]There was argument at the outset of the appeal as to whether I should direct the Secretary of State to tender for cross-examination Ms. Byrne, a senior civil servant at the Home Office who has made a statement regarding the Secretary of State's response to the application for modification, and witness L. Mr. Ahmad wanted "economically" to cross-examine them. I refused so to direct. I now explain insofar as I can in the open judgment in more detail the reasons for my decision.[14]Mr. Ahmad submitted that I have a discretion to permit cross-examination: that if there is a factual issue between the parties, the balance is in favour of permitting it. That is particularly so, he submitted, when, as here, a person's Convention rights are engaged. He submitted that cross-examination was needed to deal with the changes in circumstance since Mr. Justice Ouseley's judgment. When in argument I asked Mr. Ahmad what precisely he had proposed to ask in this regard, he referred to the changes of the times of services in the mosque and the increase in the hours of daylight. Those seemed to me matters I could consider without hearing oral evidence. He wished too to ask about security assessments made after the hearing before Mr. Justice Ouseley, and which are only referred to in a broad and unspecific way in the amended open statement. He submitted that had he been able to cross-examine the witnesses, he might have been able to show the need for a particular obligation did not continue, although he would have expected the witness to accept there had been changes. Mr. Ahmad also wished to cross-examine on what he submitted were the inadequate reasons for the refusal to modify and the lack of dialogue.[15]He accepted that if there was in reality no purpose in permitting cross-examination, then it should not be permitted.[16]Mr. Eicke submitted that while the statutory and procedural framework leaves open the possibility of the court to direct that witnesses be called for the purpose of cross examination, either under the court's inherent jurisdiction or by a witness summons under CPR Part 34, the exercise of such powers must depend heavily on the issues of the appeal having regard to the provisions of sections 7 and 10 of the Act. It should be exercised by reference to the approach taken by the court in judicial review proceedings under CPR Part 54. For reasons I have already dealt with in paragraph 11, a failure to give adequate reasons and/or an absence of meaningful dialogue were not relevant to the real issues on an appeal, submitted Mr. Eicke.[17]In addition to the submissions in open on this topic, I heard submissions in closed. In particular, it was necessary to know what the view of Mr. Johnson, the special advocate, was. A submission by him of the need for cross-examination would have weighed heavily.[18]I indicated I was prepared, without deciding it, to approach the issue on the basis suggested by Mr. Ahmad. If on proper analysis of the issues nothing could be achieved by cross-examination, then it was not appropriate to direct the Secretary of State to tender the witnesses. If I could fairly resolve any relevant issues of fact on the papers, such a direction was not appropriate. In making my decision I had to consider both the open and closed evidence.[19]I concluded it was unnecessary to hear cross-examination of the witnesses. Some of the changes of circumstance referred to by Mr. Ahmad were matters of common sense which I could take into account anyway. The approach to the fresh security considerations was essentially for the special advocate, whose knowledge of the significant features and scope for cross-examination was much greater than Mr. Ahmad's. I have given my view as to the extent of any possible relevance of a failure to give reasons or engage in dialogue. Be that as it may, any possible failure by the Secretary of State adequately to give reasons for the decision or to engage in dialogue was something I could fairly deal with on the papers, bearing in mind both the open and closed evidence.[20]I made it plain that the tendering of witnesses for cross-examination was something constantly to be kept under review. If at any stage it seemed to me that justice required a witness to be called and cross-examined, it was something I would indicate so that the topic could be re-considered. That did not arise. As all the issues in the case were ventilated it became plain to me that they could fairly be resolved without hearing evidence. The terms of the order considered by Mr Justice Ouseley.[21]The restrictions were summarised by Mr

Justice Ouseley in his judgment in SSHD v AF [2007] EWHC 651 (Admin) the following way:

"• electronic tagging, residence at the address where he was already living (the "residence" does not include the common parts or outside areas to the block of flats), curfew between 6pm and 8 am, reporting to the monitoring company when he first leaves and last returns to the residence, • entry and search of the residence at any time by the police or others authorised by the SSHD, • restriction to a defined area of Greater Manchester, totalling some 9.3 sq miles, when he is out of his residence, • prior identification and approval from the SSHD for visitors to the flat during the hours of curfew, six named individuals with whom contact is forbidden together with contact with any others notified as being subject to Control Orders- although there is no further restriction on whom he may meet outside the curfew hours whether in or out of the flat, • attendance limited to one named mosque at which he may not lead prayers, lecture or provide religious advice, • a prohibition on the use of the internet or a mobile phone anywhere or the use of a computer or other equipment which is capable of internet connection and permission only to use in the residence one fixed land line, • surrender of passport and a prohibition on possessing documents for travel outside the UK without the prior agreement of the SSHD, an obligation to inform him of any intended departure or return to the UK and a prohibition on entering ports or stations which lead to international travel without prior agreement of the SSHD, • banking facilities restricted to one account at an approved institution unless the SSHD consents to more, with details of the account and its operation to be provided to him, • restrictions in the absence of SSHD consent on international money transfers or the sending of goods and documents abroad excluding personal letters, • notification to the SSHD of the details of any employment."
[22]He summarised the reasons given for the order as follows:
"The Control Order was accompanied by a statement justifying the obligations. Most of what it contained was at a rather general level. The tagging, residence and reporting conditions were designed to reduce AF's ability to re-engage in terrorism-related activity without detection; the less time outside his home, the greater the reduction in the risk which he poses. The restrictions made it easier to monitor his movements and detect breaches. Tagging made it less easy for AF to abscond. Random checking of his presence permitted the curfew to be enforced along with other restrictions on what he could do at home. The restricted geographical area limited his capacity to visit extremists outside the area and reduced the risks of re-involvement. Restrictions on contacts restricted his ability to share his expertise and contacts and limited his ability to re-involve himself in such activities. Restrictions on the mosque to which he could go and on what he could do there limited his ability to communicate extremist views. The prohibition on the use of the internet and the limitation to the use of a land line limited his ability to communicate with extremists. The travel restrictions reduced the risk of AF travelling abroad to further terrorist activities; the banking restrictions reduced his ability to pass money to others for terrorist purposes. The requirement that he notify his employment restricted the chance that he would obtain work which posed a risk to national security."
[23]The "main differences" between that and the present order are summarised on behalf of the Secretary of State as follows:• "Your curfew is now 12 hours instead of 14 hours (7pm-7am)• You must give the Home Office details of any employment• Your geographical boundary has been amended [enlarged]• You are able to have one visitor in your residence within curfew hours without needing to seek permission from the Home Office ..."[24]Two mosques are now named: the Eccles and Salford Mosque and the Hadayat Ul Muslimeen Mosque. The first is an Arabic speaking, the second, Urdu. The necessity for a control order[25]Although as I have said I must for present purposes work on the basis that a control order is necessary, Mr. Justice Ouseley's views were clear. "133. I am.. .satisfied that a Control Order is necessary in view of the potential harm to the public if [the appellant] engages in terrorist related activity, and in view of his willingness and ability to do so. This cannot be addressed by measures less than those in a non-derogating Control Order. The basis for that conclusion depends upon non-disclosed evidence. I adopt Beatson J's analysis of what necessity involves, in paragraph 83 of E. In reaching my conclusions here, I have also adopted his approach in paragraph 84 to assessing risk or necessity: it is an evaluation, to be made recognising the relative institutional competence of the SSHD, advised as he is by the Security Service and police, taking account of the resources available to" them, and the possible surveillance arrangements. I agree with what he says in paragraphs 94-5 about the significance of resources and about the argument that it cannot be necessary to restrict someone for twelve hours by curfew when that leaves twelve hours apparently less restricted. That would be to ignore the effect of the restriction itself during curfew, the remaining restrictions, the disruption to activities, deterrence, and uncertainty over the level and nature of surveillance which being under a Control Order might bring."[26]As to the necessity for particular obligations, he said this:
"139.. The necessity for each obligation is really only seen in the context of the closed evidence but some points can be made in open. It is clear from MB that the resources available to the Security Services are relevant in deciding what is necessary. The various constraints of time and manpower as they affect various forms of surveillance and monitoring were discussed in closed. Surveillance 24 hours a day for 7 days a week was not practical and coverage would not necessarily be complete. 140. The Security Service provided the intelligence case for the obligations, and the police with the Home Office principally examined enforcement... 141. He had advised and had been involved in the discussions on all the restrictions in the first Order and had advised that all of them were necessary; and therefore to him it followed that the minimum relaxation for a lawful Control Order was appropriate in the second Order... Besides it is for the Court to decide whether the Order and the obligations have been shown to be necessary, applying an intense scrutiny, albeit with a degree of deference on national security matters, and of course recognising that the Security Service, the police and some officials have expertise in assessing risks and enforcing or monitoring activities. 142. Mr Jones made the point that the shortening of the curfew did not lead to step changes in the degree of risk, although hours of darkness could add to problems with certain sorts of surveillance. The fewer the hours, the greater the risk of re-engagement but on a continuum of risk... The [geographical] area had been defined deliberately; the SSHD had considered in a general way what facilities and job opportunities it offered. Although requests for modification had been met with a refusal because that would mean AF going outside his area, the concern was that that would give him time and greater opportunity to re-engage with contacts and activities of a terrorist related nature. When AF had been allowed out of his area for specific reason he would have had to go by minicab or with his father. 143. The tag and curfew restrict the potential for re-engagement. The fact that AF's friends and contacts could visit him at home outside curfew and consort with him inside the area did not mean that the restriction was pointless. It covered what would often be hours of socialising. It disrupted contact... It was quite often the case that individuals could not be named and contact prohibited because to do so would reveal knowledge of the link. Restrictions on mosque choice were necessary because extremists did use mosques to meet; the position of the nearest mosque which he used to attend had been considered. 144. A twelve hour curfew had been rejected because an eighteen hour or twenty four hour curfew was what was really necessary. Similar relaxations had been allowed because that was what the law required and not because they were no longer necessary. 145. If I had concluded that the Control Order was no more than a restriction of movement, I would have regarded the general run of restrictions as necessary. However, the detail and balance will have to be re-examined in the light of my decision on the first issue. There might be scope for a shorter curfew if there were also a reporting requirement outside the curfew hours. The area may be too tightly drawn particularly with regard to educational opportunities. I think that there is greater scope for controlled visits to his mother.. .I would not have allowed a general lifting of the restriction on the areas of where his friends live, nor would I have accepted that he could go to the park he used to go to for the football matches."
[27]Before turning to the specific modifications requested, I should mention a general point made by Mr. Ahmad. He rightly emphasised that Mr. Justice Ouseley did not sign off each and every obligation; that it is important that I reconsider each obligation and decide whether it continues to be necessary. The modifications sought[28]It was on 18 June 2007 that the appellant's solicitors sought a modification of the obligations imposed on their client. They provided what is a fifth statement of the appellant. It had been prepared for the section 3(10) application and is dated 22 May 2007. The curfew[29]Two alternative modifications were sought in respect of the curfew: first, a reduction from 12 to 9 hours to run from 10PM to 7AM; alternatively, if remaining at 12 hours, to run from 9AM to 9PM.[30]The appellant exhibited to his statement a prayer timetable for May for the Hadayat (Urdu speaking) mosque. The times of prayers were 4.30AM, 1.30PM, 7.30PM, 9.16PM and 10.40PM. At present he can only attend the prayer at 1.30PM. If the curfew began at 9.00PM he could attend the 7.30PM service. If it began at 10.00PM he could attend the 9.16PM service as well. Although the timetable will have changed by now, not to a great extent, I understand.[31]In his statement the appellant says he would like to attend the mosque more frequently. "I would ask that the curfew period be reduced to 9 hours by extending the period I am allowed outside to 7.00AM - 10PM. This will allow me to attend the mosque three times a day." See paragraph 11.[32]In paragraphs 12 and 13 he says that a 9.00AM to 9.00PM modification would "improve the opportunities that I have for securing employment... The curfew period restricts even further the already limited opportunities that I have to secure employment." The Secretary of State's response[33]In a letter of 4 July 2007, the Secretary of State said:
"We are not prepared to decrease the length of [the]... curfew. As stated in the First Open Control Order Statement of March 2007 and confirmed in evidence... the less time that [the appellant] spends outside of his home, the greater the reduction in the risk that he poses. We remain of the view, as set out in paragraph 32 of Catherine Byrne's second statement that the security justification for the curfew outweighs [the appellant's] desire to attend prayers 5 times a day. If [the appellant] wishes to take up employment which would require a change... we would consider the request on the merits of that case..."
[34]As to modifying the curfew the times of the curfew, the Secretary of State said:
"[the appellant] has asked for the curfew to be modified ... to improve his prospects of employment. We are not prepared to modify... [the Control Order] in this way. The reasons... are set out in paragraphs 30 and 31 and Catherine Byrne's statement."
Additionally it is noted that the appellant was receiving Incapacity Benefit. That suggested that he was unable to work.[35]Ms Byrne says this in the paragraphs referred to:
"...[The] curfew has been reduced from 14 to 12 hours, which affords him a substantial time outside of his residence... He has not provided any evidence as to why [modifying it to 9.00PM to 9.00AM] would allow him to take up employment opportunities which the current curfew prevents. Indeed, the current curfew allows for him to be outside of his residence during most common working hours, while his proposed modification would restrict him from taking up any employment which would start at 09.00. [He] states he would wish to work as a security guard- this would necessitate shift-working, quite possibly at night, and would pose issues which could not be resolved by [the modification]. If [the appellant] wishes to take up employment which would require a change in the curfew, we would consider that request on the merits of that case."
[36]Ms Byrne also referred to a letter from the Secretary of State of 4 May 2007 in which it was said that if there was a specific job or educational course which required the appellant to be outside his residence after 7.00PM, a request to modify would be considered.[37]As to modifying the curfew to accommodate more visits to the mosque, Ms Byrne said it was not a topic previously raised or considered and that enquiries were being made. She referred to the appellant's third witness statement in which he said he could attend the mosque three times a day, the services being at 12.45PM, 3.00PM and 4.00PM. She observed that no request to modify in summer 2006 had been made.[38]In the amended open statement, among other things, this is said:
"... The Secretary of State does not accept that a curfew period of 9 hours is sufficient to adequately control the risk posed by [the appellant]... The curfew is one of a combination of restrictions... in order to reduce his ability to engage in terrorism-related activity. The Secretary of State considers that the less time that [he] spends outside the residence and is therefore able to engage in such activities, the greater the reduction in risk posed by him... The Security Service assesses that a shorter curfew period would give [the appellant] further opportunity to associate with extremist individuals and would be insufficiently effective in restricting his ability to engage in terrorism activity... ... Whilst the Secretary of State recognises that the curfew is a restrictive obligation, the current curfew period of 12 hours is considered to strike a balance between restricting to some extent [the appellant's] ability to meet with extremist associates and allowing [him] to spend enough time outside of his residence to be able to lead as normal a life as possible."
[39]As to permitting the curfew to run from 10.00PM to 09.00AM, it is said:
"...the Secretary of State considers it necessary to restrict [the appellant's] activities during "hours of socialising" to disrupt contact between [him] and his contacts. Restricting [his] movements during this time will reduce his ability to meet with extremist associates. ...The Security Service considers that allowing [the appellant] to spend time outside of his residence between 09.00 and 21.00 would provide more opportunities for him to attend meetings and associate with extremists during the evening."
[40]Reference is also made to paragraphs 133 and 145 of the Mr. Justice Ouseley's open judgment.[41]Mr. Ahmad submits that on the open material there is nothing to indicate an increased risk if the curfew were reduced from 12 to 9 hours or that a 12 hour curfew at the modified times would have security implications. There is nothing to suggest that the reduction from 14 to 12 hours has resulted in terrorism related activity.[42]He further submits that with longer hours of daylight it would be easier for the appellant to obtain work. He now has access to a Job Centre. He is learning English. On the open material he has been behaving himself. The combination of that, the desirability of worshipping more often, particularly with the approach of Ramadan, provides a change of circumstances and reason to modify the curfew. The Secretary of State should have appreciated that.[43]Mr. Eicke submits that the Eccles and Salford mosque is readily accessible. At the previous hearing the boundary was extended to include it. Conclusion: the curfew[44]Mr. Justice Ouseley decided that a curfew of 14 hours was necessary: see paragraphs 133 and 145. He indicated that it might be shorter if there were a police reporting requirement. As Mr. Eicke observes, it now is shorter and has no reporting requirement.[45]The Secretary of State is entitled to conclude that the less time the appellant is outside his home, the greater the reduction in risk. She is also entitled broadly to conclude that being out later in the evening provides more opportunities to attend meetings and associate with extremists.[46]I am not impressed by the proposal to modify the times in order to help the appellant obtain employment. First, as Mr. Ahmad on his behalf has indicated, he is receiving incapacity benefit because of depression. If he rightly receives this benefit he is unable to work. He is not permitted to work. It is only if does go on to jobseeker's allowance, which, says Mr. Ahmad, is to happen, that he can work. Second, it seems to me Ms Byrne's comments on employment have substance. If he does obtain work consideration can be given to a modification once its details are known and taking account of security considerations. He did not before suggest his employment chances were affected by the hours of the curfew: see paragraph 43 of Mr. Justice Ouseley's open judgment. Third, although only peripheral to my decision, it does seem to me problematic for someone the subject of a control order to obtain security work if he makes full disclosure when he applies for a job.[47]As to modifying the time of the curfew to enable the appellant to attend the mosque more often, I observe that this was first only raised in the statement of 22 May 2007. As Ms Byrne says, the picture until then was different. That however having been said, it seems to me there may be limited scope to modify the curfew times consistent with the security requirements. If he can attend the 7.30PM service and be back by 8.00PM, I would be prepared to direct modification of the curfew so that it ran from 8.00PM to 8.00AM. That would be the limit of any modification regarding the curfew I would direct. I would need to hear submissions on this.[48]Plainly Ramadan is very important. A change regarding it has not yet been sought and cannot be the subject of an appeal. Mr. Eicke has made it clear that the Secretary of State as a matter of course regards it as of considerable importance, (although he points out that last year his offer to modify regarding Ramadan was not taken up by the appellant).[49]It comes to this. In my view there has been a change in circumstance. The hours of the services have changed. The hours of daylight are longer. That is a relevant security consideration. A comparatively small modification to the curfew might result in the appellant being able to attend the 7.30PM service at the Hadayat mosque and be home at 8.00PM. Were that so, I would be prepared to direct a modification to that effect. Such a modification might too permit him to attend the Foundation Mosque: see paragraph 69 below.[50]It follows that in my view the obligation for the curfew to run from 7.00AM to 7.00PM does not continue to be necessary. It could be modified by one hour, at least for the present. The Secretary of State should in response to the request have considered such a modification. Mr. Ahmad is right to say that some dialogue regarding this might have helped.[51]Possible changes in the light of Ramadan are for separate consideration. Football and the geographical restriction[52]The appellant currently uses a gym at the JJB centre. It has football pitches. The appellant's solicitor sought:
"a relaxation of the geographical restriction to allow [the appellant] to play football at any or all of the following football locations: Ardwick, Whalley Range High School, Fogg Lane and Armitage Centre in Fallowfield... Alternatively, a relaxation of the geographical restriction to allow [the appellant] to play football in the in the Sunday league... at the football pitch adjacent to Whalley Range High School and at the Armitage Centre in Fallowfield..."
[53]In his fifth statement the appellant says:
"None of my other Arabic speaking/football playing friends who live outside my permitted area use the JJB centre... I too would like to be able to visit and play football at [the] locations [named by the solicitor]. ...In any event a game of football at the JJB centre would... [be] too expensive... The facilities in the new extended permitted area include Salford College and the University of Salford. I will make enquiries about their facilities but they are likely to be restricted to their own students... my Arabic speaking... friends do not use those facilities. I wish to play football with my friends outside the permitted area and to do so at the very least in the Sunday league...[at] Whalley Range... and also the Armitage Centre Fallowfield. I will request... approval to allow me to visit these locations... with my father."
[54]Mr. Ahmad proposes that the appellant be accompanied when he goes to the football matches, if not by his father by someone else, for example, a police officer. No particular other person is named. The Secretary of State's response[55]In the letter of 4 July 2007 the Secretary of State referred to paragraph 145 of Mr. Justice Ouseley's open judgment. The Secretary of State said that in respect of both the named football pitches and the Sunday league pitches:
"The geographical boundary limits [the appellant's] capacity to visit extremist associates outside of the specified area and reduces the risk that he will involve himself again in terrorism-related activities... [The]... geographical area contains numerous places to play football at reasonable cost, including the JJB complex..."
[56]Ms Byrne adds that she has been informed that the pitch at JJB can be hired more cheaply: also that there are a number of parks within the area. These are things said in a spirit of dialogue submits Mr. Eicke.[57]The amended open statement, among other things, says:
"[The appellant] has links to Islamist extremists in Manchester, some of whom are linked to the LIFG [a prohibited organisation]. The purpose of the geographical boundary is to reduce [his] ability to associate with such persons, to share his expertise and contacts and reduce the risk that he will re-engage in terrorism-related activities. The football pitches... are all located outside of his geographical boundary to the south east."

Conclusion

football and the geographical restriction[58]Mr. Justice Ouseley accepted in paragraph 145 of his judgment (paragraph 26 above) that the appellant should not go to the park where he played football matches. Having regard to all the evidence, nothing which has happened since the judgment suggests that the obligation affecting football grounds he may go to does not continue to be necessary.[59]It seems to me quite impracticable for a police officer to accompany the appellant to football matches. Mr. Eicke informed me that only in one case of a control order, involving a different force, does an officer accompany a controlled person once every two weeks when he signs on. The Foundation Mosque.[60]The nearest permitted mosque to the appellant is the Urdu speaking Hadayat mosque. It is very close. He is also permitted to attend the Arabic speaking Eccles and Salford mosque. Mr. Justice Ouseley was told it was 45 minutes away. There seems to be a degree of uncertainty about it, and as to how many bus changes (if any) are needed. It is near the JJB Soccer Dome which the appellant goes to. There is a nearer Arabic speaking mosque called the Foundation mosque. It not far outside the permitted area in Manchester city centre. It is some 2.9 miles from the appellant's home. To go there by car would take some 8 minutes. The modification requested is that; "[The appellant] would like approval to attend the Foundation mosque."[61]In his fifth witness statement the appellant refers to what he has previously said regarding the unsuitability of the two permitted mosques. He does not understand Urdu. The Salford and Eccles Mosque is too far away. He could not find it when he went there. Of the Foundation Mosque (which he then mistakenly believed was within the permitted area), he says:
"I would like to attend the Foundation mosque which I understand attracts Arabic speakers..."
The secretary of state's response[62]In a letter of 6 July 2007 the Secretary of State stated that:
"We are not prepared to modify [the]... boundary to include the Foundation mosque. [The appellant] already has permission to attend two mosques within his boundary..."
[63]Ms Byrne states that the Eccles and Salford Mosque is a Muslim Youth Foundation Mosque and is prominent, having been a church.[64]In the amended open statement it is said:
"...it is known that Islamist extremists frequent certain mosques and use them to hold meetings and make contact with other extremists. The Secretary of State considers that [the appellant] should be prohibited from attending the Foundation Mosque in order to restrict his ability to associate with other extremists, communicate extremist views and use the mosque to conduct his activities."
[65]Mr. Ahmad submits that either the appellant should be permitted to attend the Foundation Mosque, with a comparative minor modification of the curfew, or there should be a greater modification to permit the 45 minute journey to the Eccles and Salford Mosque. Conclusion: the Foundation Mosque[66]At paragraph 33 of his open judgment Mr. Justice Ouseley referred to the appellant's inability to attend a mosque he had previously worshipped at five times a day. As to the restrictions concerning mosques, he said:
"Restrictions on mosque choice were necessary because extremists did use mosques to meet; the position of the nearest mosque which he used to attend had been considered."
[67]It was plainly necessary to restrict the choice of mosques. Mr. Justice Ouseley did not consider the Foundation Mosque as a possible permitted place of worship. It was only first raised in May 2007.[68]The Eccles and Salford Mosque is Arabic speaking. I find it surprising the appellant did not find it given its prominence and his professed wish to find an Arabic speaking mosque. He regularly goes to the gym in the area where it is located.[69]Be that as it may, having considered both the present open and closed evidence I would be prepared to direct modification of the obligations under the control order as to permit the appellant to attend the Foundation Mosque. Use of a mobile phone[70]The request was to permit the appellant:
"...to possess and use a mobile telephone which does not have internet capability."
[71]In his fifth witness statement the appellant refers to the landline at his home having been cut off because the bill was not paid. It has now been restored. He states it would be much cheaper to use a mobile phone (and the internet) rather than the landline. He states that:
"I see no reason why I cannot be provided with a mobile telephone which does not have internet capability. I would ask the [Secretary of State] to provide me with [one]...so that I can communicate with the outside world. In 2007 is also slightly embarrassing to explain to other people what I do not have a mobile telephone without explaining the actual reason..."
[72]The Secretary of State refused to modify the requirement. "...The restriction on communication equipment, such as mobile phones limits [the appellant's] ability to communicate with his extremist associates. [He] is able to use the landline in his residence..."[73]Ms Byrne does not accept it would be cheaper for the appellant to use a mobile phone. A landline with a phone or calling card would be cheaper. She refers to the fact that the appellant can afford £26 per month for gym membership.[74]In the amended open statement it states:
"The question of whether or not a mobile phone has internet capability is not relevant to this obligation, the purpose of which is to prevent the appellant from using a mobile phone to speak to extremist associates... The Security Service considers it necessary to restrict...[the] use of communications equipment to limit his ability to communicate with his extremist associates. The Security Service continues to consider it necessary to restrict [the appellant's] ability to use a mobile phone, with or without internet capability, in order to limit his ability to communicate with his extremist associates."
[75]Mr Ahmad submitted that it must be feasible for the Secretary of State to provide the appellant with a mobile phone without internet access and with restricted telephone numbers both in and out (the second a suggestion never before made). The appellant would like to be in contact with the outside world by telephone when he is not at home. He cannot then communicate with his family.[76]Mr. Eicke indicated that if a proper request were made for a phone as highly restricted as Mr. Ahmad suggested, it would be considered. Conclusion: mobile phone[77]Having regard to the evidence as a whole, I have no doubt that this obligation continues to be necessary. I accept what is said in the amended open statement.[78]I doubt whether Mr. Ahmad's suggestion is feasible. I doubt too that a phone so restricted in its use would fulfil the need the appellant claims to have. However that is not for present consideration. Visiting his mother in Wakefield.[79]The appellant sought:
"[a] relaxation of the obligations in order to allow [the appellant] to visit his mother at her home in Wakefield and to stay overnight."
[80]The distance between the appellant's address and Wakefield is some 40 miles.[81]In his fifth witness statement, the appellant states:
"Day visits are problematic when my father is required to drive me there and back as he is not always available... It is another burden for my father. ... it is difficult for my mother to visit me in Manchester as she does not have a car... presently [my father] is banned from driving. I would like to be allowed to visit Wakefield by train and... stay overnight."
The Secretary of State's response[82]In his letter of 4 July 2007 the Secretary of State stated that; "We are not prepared to modify [the appellant's] control order to allow him to visit Wakefield due to security concerns."[83]In her statement Ms Byrne refers to the fact that the geographical boundary was extended to permit a visit to the appellant's mother on 7 April 2007 (without an overnight stay). Due to a clerical error in the Department, there was no response to a request for an overnight visit on 26 and 27 May 2007 until after that period had passed. Ms Byrne states that:
"...permission would not have been granted... due to security concerns... [The appellant] states that it is problematic for his father to accompany him. If [he] were to propose an alternative person who could accompany him the Home Office would consider that request on its merits..."
[84]The amended open statement says that:
"At the section 3(10) hearing in February 2007 witness L indicated, whilst giving closed evidence, that the security service had concerns that allowing [the appellant] to travel to Wakefield would offer him opportunities to meet with associates and possibly breach the conditions of the control order."
[85]The statement goes on to say that it was in the light of Mr. Justice Ouseley's observations that the visit to the mother on 7 April 2007 was permitted. A subsequent request was refused on security grounds. "The Secretary of State recognises that the geographical boundary may restrict [the appellant's] ability to spend time with family members living outside of [the] geographical area. However... the order does not prevent [his] mother... visiting... .... the Secretary of State maintains it is not necessary or proportionate to allow a modification..."[86]Mr. Ahmad told me that the position has changed since May 2007 when the appellant made his statement. The father is no longer disqualified. The mother has a car. She has visited the appellant. However, she is a busy landlady of a public house and to find the time to visit is not easy. Moreover, the relationship with the father is difficult.[87]Mr. Ahmad emphasised Mr. Justice Ouseley's view that greater flexibility in this regard was indicated. He further submitted that the appellant would agree to travel direct by pre-authorised mini-cab or with the police accompanying him. Conclusion: visiting his mother in Wakefield[88]It is unrealistic to expect a police officer to accompany the appellant on visits.[89]Having regard to the open and closed evidence, and taking account of Mr. Justice Ouseley's observations, I have no doubt that this obligation continues to be necessary. Residence in another city[90]The appellant's solicitor requested that the geographical area be modified to allow the appellant:
"...to reside in another City and, if necessary, to be excluded from certain areas of Manchester."
[91]In his fifth witness statement the appellant said:
"My circumstances are such that I am considering moving to another major city in the UK. I have not yet applied for housing in another city but would ask the [Secretary of State] to assist me with re-locating away from Manchester in order that I can regain my liberty and resume my normal life."
[92]In fairness to Mr. Ahmad, this request (and the next) were not at the forefront of his submissions. The Secretary of State's response[93]The Secretary of State said that:
"[He] would consider modifying... [the] obligation to allow [the appellant] to reside in another city if he identifies a city he wished to reside in, and we would consider such a request on its merits. However we are not prepared to pay for such a move."
[94]It is put in the amended open statement in this way:
"Should [the appellant] provide details of the area in which he would like to reside the security service would make any assessment of any risk posed by.. .residing in that area and any restrictions required to exclude him from areas of national security concern."

Conclusion

residence in another city[95]As I indicated in argument, if the appellant suggests a city in which he would like to reside, the Secretary of State can decide whether the present obligation continues to be necessary. It is not for the Secretary of State to suggest where the appellant should live. This would be to take dialogue too far. The Secretary of State cannot know where the appellant would like to live. This was not a reasonable request for modification. The response was reasonable. Subject to what I have said earlier, there is nothing to suggest that the obligations concerning Manchester no longer continue to be necessary. Paying for gym membership etc.[96]The final request which is still pursued was that the Secretary of State provide:
"...financial resources to pay [the appellant's] gym membership, use of other leisure facilities, access to educational facilities and use of a monitored landline...[the appellant's] employment prospects are hindered by the control order and his ability to earn is... restricted..."
[97]As Mr. Ahmad accepted, that request has nothing to do with the continued need for the obligations under this control order. It has nothing to do with national security. It is not a matter for an appeal such as this, as the Secretary of State made clear in his response to the request and the amended open statement. I need say no more about it. Conclusion[98]I would in the circumstances be prepared to direct the modifications I have referred to. I will hear submissions before making any orders.

Cited in 4 later judgments