Secretary of State for the Home Department v Rideh [2007] EWHC 804 (Admin)

[2007] EWHC 804 (Admin)

Case No PTA 1/2005

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 4 April 2007

Before

THE HONOURABLE MR JUSTICE BEATSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTApplicant

MAHMOUD ABU RIDEHRespondent

JInterested Party

Mr Robin Tam Q.C. and Mr Andrew O'Connor (instructed by Treasury Solicitor) for Applicant

Mr Raza Husain and Mr Danny Friedman (instructed by Messrs. Birnberg Peirce) for Respondent Mahmoud Abu Rideh

Mr Nicholas Blake Q.C. and Mr Keiron Beal (instructed by the Special Advocates Support Office) appeared as Special Advocates

Mr Rabinder Singh Q.C. and Mr Hugh Southey (instructed by Messrs. Birnberg Peirce) for Interested Party J

Hearing Hearing dates: 8th to 11th January 2007

Judgment

BEATSON J :

1-Introduction:

[1]The terrorist threat to the United Kingdom since 2001 has led the government and Parliament to conclude that a preventive regime is needed for those suspected of involvement in terrorism but who cannot be prosecuted in the criminal courts. These proceedings concern a control order made by the Applicant, the Home Secretary, pursuant to powers in the Prevention of Terrorism Act 2005 (the “PTA”). It was made on 11 March 2005, served on the following day, and renewed on 12 March 2006. It subjects the Respondent, Mahmoud Abu Rideh, to residence restrictions, a twelve hour curfew, prohibitions on unauthorised visitors to his house or prearranged meetings elsewhere, and other restrictions.

[2]The PTA and its provision for control orders that place obligations and restrictions on those suspected of involvement in terrorism replaced the provisions in the Anti-Terrorist Crime and Security Act 2001 (the “2001 Act”) enabling the detention of non-British nationals certified under it. On 17 December 2001 the Respondent was detained under the 2001 Act. His case was one of those considered in A and others v Secretary of State for the Home Department

[2004] UKHL 56

[2005] 2 AC 68

when the House of Lords held that the provisions of the 2001Act authorising such detention were incompatible with Articles 5 and 14 of the European Convention on Human Rights (“the Convention”). Control orders were also made against nine other persons detained under the 2001 Act. The control orders of eight of them were revoked in August 2005 and they are now either detained pending deportation, on bail pending deportation or have left the country. The orders in respect of the Respondent and E, the other former detainee, were renewed in March 2006. The two cases were originally to be heard sequentially in November 2006. However, the Respondent’s case was adjourned to January 2007 It was agreed that the Applicant’s closing submissions and the Respondent’s reply should be in writing. These were served on 19 and 26 January 2007. The Applicant’s closed closing submissions and the special advocates’ reply were served on 26 January and 2 February. because of a partial failure by him to comply with an order for the disclosure of his medical notes made by his doctors.

[3]E’s case, in which the restrictions were, with one exception, identical to those to which the Respondent is subject, was heard first, and judgment has been given: see Secretary of State for the Home Department v E

[2007] EWHC 233 (Admin)

. It was held that, in the light of the Strasbourg jurisprudence and the decision of the Court of Appeal in Secretary of State for the Home Department v JJ and others

[2006] 3 WLR 866

(under appeal to the House of Lords), the cumulative effect of the restrictions in E’s control order deprived him of his liberty under

Article 5 of the Convention

. E’s control order was quashed under the power contained in section 3(12)(a) of the PTA. Leave to appeal to the Court of Appeal has been granted. The legal issues in this case are very similar to those in E’s case. For this reason it is unnecessary fully to repeat here matters set out in the judgment in that case, in particular the legislative scheme of the PTA (

[2007] EWHC 233 (Admin)

at [14] to [48]), the evidence concerning the making of control orders in general and the consideration given in January and March 2005 to the possibility of prosecuting those detained under the 2001 Act who were to have control orders made against them (ibid., at [97] to [124]), and the Strasbourg and domestic authorities on

Article 5 of the Convention

( ibid., at [193] to [242]).

[4]As far as the legislative scheme is concerned it suffices to say that the PTA distinguishes between “derogating” and “non-derogating” control orders. The former impose obligations which are incompatible with the right to liberty under

Article 5 of the Convention

. They may only be made by the Court, and only if the specified conditions, one of which is that there is a public emergency in respect of which the United Kingdom has made a designated derogation from the whole or a part of Article 5, are satisfied. As there is no such designated derogation from Article 5 at present there is no power to make a derogating order. Non-derogating orders are made by the Home Secretary with the permission of the court (except in cases of urgency) and are subject to the supervision by the court pursuant to section 3 of the PTA. Section 10 of the PTA makes provision for appeals by a controlled person against the renewal, modification, refusal to revoke, and refusal to modify a control order.

[5]The control order imposed on the Respondent purports to be a non-derogating order. Section 3(2)(c) of the PTA requires that the substantive hearing at which the court is to supervise a control order is to be “as soon as reasonably practicable after it is made”. It took twenty-two months for the matter to come before the court, so that the proceedings before me are both the supervisory hearing under section 3 of the PTA in respect of the order made in March 2005, and the Respondent’s appeal pursuant to section 10 against the renewal of the order in March 2006. The reasons for the delay (set out in paragraphs [5-7] of the judgment in E’s case) were the need to await the ruling of the House of Lords in A & others (No. 2) v Secretary of State for the Home Department

[2006] 2 AC 221

, and problems with the availability of counsel.

[6]The hearing also concerned the case of J, the Respondent’s wife. She launched judicial review proceedings against the Home Secretary on 10 June 2005 and also applied to be joined as a party to the PTA proceedings concerning the control order. At the outset I gave permission for J to be joined to the PTA proceedings and indicated that, in those circumstances, it was not appropriate to grant permission to her to apply for judicial review. The basis of the court’s jurisdiction to hear proceedings brought by a third party such as J is set out in paragraphs [46] to [47] of the judgment in E’s case. 2 – The Respondent’s history

[7]The Respondent was born on 7 November 1971 in the Jarash refugee camp in Jordan and was brought up in Gaza. He married J in Jordan on 13 August 1993. They have five children, aged between 6 and 12 years old. He is a stateless Palestinian. His wife and children have British passports. At some stage the Respondent went to Pakistan and spent some time there. In a statement dated 18 October 2002 made in connection with his appeal to the Special Immigration Appeals Commission (“SIAC”) against certification under the 2001 Act he stated that he and his family came to the United Kingdom from Pakistan where his wife worked as a teacher and he helped refugees in camps along the border of Pakistan and Afghanistan. The evidence before the court was that he claimed asylum on 30 December 1994. In its judgment dismissing his appeal however, SIAC stated that he arrived in the United Kingdom in January 1995 and that when he arrived he had a Jordanian passport. His asylum claim was refused on 19 February 1997 but in November 1998 he was granted indefinite leave to remain in the United Kingdom.

[8]In 1999 the Respondent sought professional help from the Traumatic Stress Service at St George’s Hospital and was seen by Professor Ian Robbins a consultant clinical psychologist and head of the Traumatic Stress Service. I am at present not concerned with the different diagnoses of his condition by Professor Robbins and psychiatrists and psychologists who have seen the Respondent. I deal with those and with the circumstances in which he was discharged from Broadmoor Special Hospital when considering the evidence: see paragraphs [74] to [76] and [120] to [126] below. For present purposes it suffices to say that the Respondent told Professor Robbins that he felt his problems started when he was about twelve and an Israeli army jeep ran over a young boy in front of him. He also told Professor Robbins that he was imprisoned by the Israelis on many occasions and was tortured while in prison.

[9]I have referred to the Respondent’s detention on 17 December 2001 under the 2001 Act. He was detained in HMP Belmarsh and while detained his health deteriorated. Between 17 and 21 February 2002 the European Committee on Torture visited him and others detained under the 2001 Act in HMP Belmarsh and found that the psychiatric care provided for them was “organised in a rather haphazard fashion”.

[10]On 24 July 2002, on the direction of the Applicant pursuant to sections 48 and 49 of the Mental Health Act 1983, the Respondent was transferred from HMP Belmarsh to Broadmoor Special Hospital. He remained in Broadmoor until 11 March 2005. On 29 October 2003 his appeal against his certification under the 2001 Act was dismissed by SIAC. There were differences of opinion as to whether he was suffering from a mental disease of a nature and degree which made it appropriate for him to be detained for medical treatment but on 9 January 2004 the Mental Health Tribunal found that it was appropriate for him to be detained in Broadmoor.

[11]The European Committee on Torture visited the Respondent and two others in Broadmoor between 14 and 19 March 2004. The Committee’s report states that the mental state of one of people they saw at Broadmoor, who was identified at the hearing as the Respondent, “appeared to have deteriorated seriously, risking permanent damage”. The report sought his transfer to a more suitable location. SIAC reviewed his certification under the 2001 Act on 2 July and 15 December 2004 and determined that the certificate was properly maintained. The Respondent made no submissions for the purposes of those reviews, the second of which was concluded the day before the House of Lords gave its decision in A and others v Secretary of State for the Home Department.

[12]On 28 January 2005 SIAC granted the Respondent bail “in principle”. Its judgment states that a further hearing was necessary to determine the bail conditions and to address how medical treatment would be provided. In the light of this, on 15 February a community care assessment pursuant to section 117 of the Mental Health Act 1983 was carried out. A review meeting on 16 February considered the assessment and agreed a care plan. The review meeting was attended by those who were caring for the Respondent while he was in Broadmoor, and those who would be doing so when he was released on bail. The Respondent declined to attend the meeting. On his release a control order was made subjecting him to restrictions. 3 - The terms of the Respondent’s control order

[13]Originally the obligations to which the Respondent was subjected included a requirement to wear an electronic monitoring tag. On 8 April 2005 his solicitors wrote to the Control Order Contact Officer asking for the decision to impose the control order and the obligations in it to be reconsidered in the light of his mental health and his distress at the presence of the tag on him and about the curfew. They wrote again on 26 April 2005, stating that since his release he had been admitted to Charing Cross Hospital as a psychiatric patient on four occasions, twice after self-harming. He was admitted on 19 March and discharged on 21 March, and informally admitted on 12 April after cutting his arms at Field House where SIAC hearings are held. It was agreed that the obligation to wear the tag could be suspended while he was in hospital. He discharged himself on 26 April, presented himself at Fulham police station, and told a police officer that he did not want to put the tag on. He was charged with breaching the conditions of his control order, refused bail, and remanded in HMP Brixton. On 3 May 2005 the Home Secretary refused to revoke the control order or to relax its conditions and the Respondent’s solicitors served a notice of appeal. Following a hearing before Ouseley J on 11 May 2005, in the light of psychiatric evidence, the requirement to wear a tag was replaced by a requirement to telephone the monitoring company twice during the night. The Respondent and the Home Office agreed the time of the early morning telephone call to take into account of when he needed to awaken for the purpose of his early morning prayers. Ouseley J commented that as the time of those prayers changed the time of the telephone call would need to be altered. The proceedings for breaching the order were subsequently discontinued.

[14]The obligations to which the Respondent was subject at the date of the hearing before me were:- “(1) Residence and curfew: You shall reside at [specified address](“the residence”), and shall remain in the residence at all times save for a period of 12 hours between 7am and 7pm or as specified in the directions given in writing referred to at (8) below. “Residence”, in the case of a flat, encompasses only that flat and, in particular, does not include any communal area either inside or outside to which any person not within the residence would have unrestricted access. “Residence”, in the case of a house, encompasses only the house and does not include any outside space associated with it. (2) Reporting: Each day, you must report to the monitoring company by telephone:(a) on the first occasion you leave the residence

(b) on the last occasion that you return to it

(d) once between 20.30 & 21.20 every evening (a) on the first occasion you leave the residence (b) on the last occasion that you return to it (c) once between 04.45 & 05.15 every morning, and (d) once between 20.30 & 21.20 every evening (3). Visitors to the residence: You shall not permit any person to enter the residence, save for: (a). your wife and children (b). your nominated legal representative as notified to the Home 18. Office 19. (c ) in an emergency, members of the emergency services or health 20. care or social work professionals; (d). any person aged 16 and under; and

(e) any person required to be given access under the tenancy agreement for the residence, a copy of which shall be supplied to the Home Office. You shall not permit any other individual to enter the residence except with the prior agreement of the Home Office. In relation to those other individuals, you must supply the name, address, date of birth and photographic identity of the individual. The prior agreement of the Home Office shall not be required for subsequent visits by an agreed individual, but this does not prevent the Home Office withdrawing that agreement at any time. (4). Pre-arranged meetings outside the residence: You shall not, outside of the residence: (a) meet any person by prior arrangement, other than: (i) that person referred to in (4)(a) above, or (ii) for health or welfare purposes at an establishment on a list provided to and agreed by the Home Office before your first visit; or (iii) for educational purposes, at an establishment identified to and agreed by the Home Office before your first attendance; or (b) attend any pre-arranged meetings or gatherings (other than attending group prayers at a mosque), save with the prior agreement of the Home Office. For the avoidance of doubt, a meeting shall be deemed to take place outside of the residence if one or more parties to it are outside of the residence. (5). Police searches: You must permit entry to police officers and persons authorised by the Secretary of State or by the monitoring company, on production of identification, at any time to verify your presence at the residence and/or to ensure that you can comply and/or are complying with the obligations imposed by this control order. Such monitoring may include but is not limited to:- (a). a search of the residence; (b) removal of any item; (c) inspection/modification or removal for inspection/modification of any article to ensure that it does not breach the obligations imposed by this control order; (d) permitting the installation of such equipment as may be considered necessary to ensure compliance with the obligations imposed by this control order; (e) the taking of your photograph. (6). Authority to impose temporary prohibitions and restrictions: In order to secure compliance with the obligations imposed by the control order, you shall comply with such other prohibitions or restrictions on your movement as may be required by directions given in writing at the time of service of the control order by a police officer or other person authorised by the Secretary of State. Such prohibitions or restrictions shall cease 24 hours after the giving of such directions, or on earlier direction. (7). Communications equipment (modified 25 May 2005): You shall not:- (a) bring or permit into the residence, or (b) use or keep (whether in or outside the residence) any communications equipment or equipment capable of connecting to the Internet or components thereof (including but not limited to mobile phones, fax machines, pagers, and public telephone and/or internet facilities), other than:- (i) one fixed telephone line in the residence; and (ii) one or more computers in the residence. Any computer permitted into the residence must be disabled from connecting to the Internet and shall not have installed any commercial, third party or bespoke encryption software programmes or packages. The telephone and any computer must be delivered up to a person authorised by the Secretary of State for inspection and removal prior to it being permitted into or to remain in the residence. It shall not be a breach of this obligation to permit:- (aa) any person specified in (4)(a) to (e) above; (bb) an individual who is allowed to enter the residence under (4) above by reason of the prior agreement of the Home Office, to bring into the residence a mobile phone, provided that any such mobile phone shall remain switched off at all times whilst you are in the residence. For the avoidance of doubt:- (cc) you may not use, nor may you permit whilst you are in the residence any other person to use, any mobile phone in the residence; and (dd) you may not connect to or use the internet at any time. (8). Notification of international departure and arrival: You must notify the Home Office of any intended departure from the UK and notify it of the port of embarkation and disembarkation. You must also notify the Home Office if and when you intend to return to the UK and to report to the Home Office immediately upon arrival that you are or were subject to this control order. The requirement to report on arrival shall continue to apply whether or not this control order remains in force at the time of your return to the UK. (9). Bank account: You shall not maintain more than one account. Such account must be held with a bank or other approved financial institution within the UK. Details of this account must be provided to a person authorised by the Secretary of State within 14 days from the date of service of this control order or the opening of the account whichever is sooner. You must obtain statements of the account on a monthly basis and provide such statements to the person authorised by the Secretary of State within 7 days of receipt. (10). Transfer of money/sending documents or goods: You shall not transfer 30. any money, or send any documents or goods to a destination outside the 31. UK (whether yourself or through an intermediary) without the prior 32. agreement of the Home Office.”

[15]The control order was renewed on 12 March 2006 and was due to be renewed when it expired on 11 March 2007. In the light of the decision in E’s case, however, in early March, the Secretary of State decided instead to revoke the control order containing the restrictions set out above and to make a new order which he considers to be compatible with the decision in E’s case. The Respondent’s new control order does not require prior authority for pre-arranged meetings outside the residence but requires prior authority for any employment and that details of other activities for which the Respondent is remunerated be provided to the Home Office. 4 - The issues

[16]As in E’s case, logically the first of the issues raised on behalf of the Respondent is whether the power conferred by section 1(3) of the PTA, when read together with section 2(9) renders the scheme of the PTA incompatible with the requirement under the Convention for legal certainty. The submission that there is a justifiable complaint of “uncertainty” in the PTA provisions empowering the making of control orders was rejected in E’s case and I reject it in the present case for the reasons given in E’s case: see

[2007] EWHC 233 (Admin)

at [181] to [192]. Since this issue is not fact specific, I do not consider it further.

[17]The second issue is whether the cumulative effect of the obligations imposed by the control order are so severe that they amount to deprivation of the Respondent’s liberty contrary to Article 5, so that the order and one which the Applicant had no power to make. I have noted that the obligations are, with one exception, identical to those in E’s case. I deal with that difference and the differences in the mental health of the Respondent and E, and in the evidence as to the effect of the restrictions on them, in paragraphs [148] – [149] below but the reasons which led me to conclude that the effect of the obligations deprived E of his liberty apply in the present case.

[18]The third issue arises if the order does not amount to a deprivation of liberty. It concerns the exercise by the court of its supervisory and appellate functions under sections 3 and 10 of the PTA. These require the court to consider whether any of the decisions of the Secretary of State in relation to the making and renewing of the control order and its contents is flawed.

[19]The power to make a non-derogating control order is contained in section 2 of the PTA. Subsection (1) provides that:

"The Secretary of State may make a control order against an individual if he: (a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity [defined in section 1(9)]; 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."

[20]By section 1(3) the obligations that may be imposed by a non- derogating control order are: “… any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism activity.” 21. Section 3 deals with the role and powers of the court. I have referred to the requirement in section 3(2)(c) that there be a hearing, which I have described as a supervisory hearing, as soon as reasonably practicable after a control order is made. Section 3(10) of the PTA provides that at that hearing: “… the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

(b) his decisions on the imposition of each of the obligations imposed by the order”.

[22]Section 3(11) provides that in determining what constitutes a flawed decision the court must apply the principles applicable on an application for judicial review. The court is required to apply the principles applicable on an application for judicial review on the broad basis laid down by the Court of Appeal in Secretary of State for the Home Department v MB

[2006] 3 WLR 839

. Leave to appeal to the House of Lords has been granted.

[23]Section 3(12) provides that if the court determines that a decision of the Secretary of State was flawed, its powers are(a) to quash the order,

(b) to quash one or more obligations imposed by the order; and

(c) to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. By section 3(13), in every other case the court must decide that the control order is to continue in force.

[24]The function of the court and the scope of its powers are similar when considering appeals against the decision to modify or to renew an order, or not to revoke it: see sections 10(4) to 10(7).

[25]In the present case the decisions in question are whether the Applicant has reasonable grounds for suspecting that the Respondent is or has been involved in terrorist related activity, that it is necessary to make a control order imposing obligations on him, and that the particular obligations imposed on him are necessary. On behalf of the Respondent it is denied that he has engaged in any conduct at any time that would permit the making of a control order. It is also argued that the Applicant’s continuing decisions to make, and to maintain in force, the control order for this length of time are flawed and should be quashed on the grounds that:-(a) the obligations imposed amount to inhuman or degrading treatment and thus breach

Article 3 of the Convention

;

(b) the obligations imposed are disproportionate to the severe interferences caused with protected rights under

Article 8 of the Convention

;

(d) the Applicant is in breach of common law and Article 6 obligations of procedural fairness.

[26]A joint skeleton argument dated 15 November 2006 submitted on behalf of the Respondent and E reserved their positions on two matters on which it was accepted that I am bound by the decision of the Court of Appeal in MB’s case. These are whether proceedings under the PTA are a determination of a criminal charge for the purposes of Article 6 and whether proceedings under the PTA are compatible with the requirements of Article 6 in civil proceedings. On the Friday before the Monday when the hearing in the Respondent’s case was to begin, those representing him sought to revive the first point. I rejected Mr Husain’s application to do so because the point is not open before me and also because the application was too late. Mr Husain also sought to argue that interference with the Respondent’s rights was not in accordance the law because the control order was served before the PTA was published. In the light of evidence given by the civil servant who collected ten copies of the PTA certified by the Clerk of Parliament as a true copy of the Act that was sent to the Queen’s Printer and stated that a copy of the Act was sent with the control orders to those subjected to the restrictions in them, this point was abandoned.

[27]It is argued by Mr Singh QC that the rights of J and the children under Articles 3, 8 and 10 of the Convention have been violated. With regard to Article 8, he submitted that there was an unfair failure to consult about the consequences of the control order on the family, which failure also constitutes unfairness at common law, and that the restrictions in the order are a disproportionate interference with their right to private and family life. With regard to Article 3, he submitted that the control order is having such a significant impact on the mental health of the children that the threshold required for Article 3 has been met. Mr Singh also argued that the restrictions on the communications equipment that can be brought into their home disproportionately interfered with the Article 10 rights of J and the children. The joint skeleton argument also raised an argument based on Article 10, but this was not pursued by Mr Husain. 5 - The Special Procedure in proceedings under the PTA

[28]In exercising its supervisory function under sections 3 and 10 of the PTA the court is required to follow a special procedure, involving closed material not revealed to the controlled person: see paragraph 4(3) of the Schedule to the PTA. The procedure is contained in CPR Part 76. One of the grounds for not disclosing material to the controlled person is that it would be contrary to the interests of national security. Where an application to withhold material is made, a special advocate is appointed. The function of a special advocate is (see CPR Rule 76.24) to represent the interests of the controlled person by cross-examining witnesses and making oral and written submissions at any closed hearing. CPR Rule 76.29 enables the special advocate to challenge the need to withhold material and, in the absence of agreement, requires the court to determine whether it should be withheld. Where the court gives permission to withhold closed material CPR Rule 76.29(6) requires it to consider whether to direct that a summary of that material be served on the controlled person or his legal representative, and that any potentially exculpatory material is put before the court and, where possible, the controlled person and his legal representative.

[29]Where, as in this case, closed evidence is relied on, the controlled person who does not know the details of the case against him is clearly prejudiced. The Court of Appeal in Secretary of State for the Home Department v MB

[2006] 3 WLR 839

, at [70] and [86] stated that it is the special advocate system providing safeguards against such prejudice that enables the proceedings to comply with the requirements of

Article 6 of the Convention

. If the way the process has worked in a particular case is unsatisfactory, the adequacy of the safeguards, including the Rule 76.29 process, will be put into question. In such a case, the court would be entitled to conclude that, in the particular circumstances, the requirements of Article 6 have not been satisfied. Neither this case nor E’s case are cases in which the process was unsatisfactory, and indeed in E’s case, it was crucial in bringing material into the open evidence, inter alia the Belgian judgments which became the core of the open national security case against E. Nevertheless, in the light of the way the process worked in the two cases I make three observations. The first concerns the late submission of closed material. The second concerns submissions that it is not open to the special advocate to take a point. The third concerns CPR 76.33.

[30]In both cases the Applicant submitted some closed material at a late stage, either just before the hearing or during the hearing. One reason for this was the timing of the review by the Applicant of closed information not before the court for potentially exculpatory material. The process of this exculpatory review is undoubtedly a burdensome one. It became clear at a directions hearing in October 2006 that the Applicant was proceeding on the basis that, in order to avoid duplication, there was no need for it to undertake the exculpatory review until shortly before the hearing. It is true that if the review is done too early in the process, it might not identify documents that fall to be disclosed in the light of issues that emerge subsequently, and clearly whatever system is used, it is possible that additional material will only be seen to be relevant shortly before the hearing.

[31]If, however exculpatory review is left too late, it is likely that there will be other difficulties, in particular in affording the special advocates a reasonable opportunity to consider the material, and for the Rule 76.29 process. This will delay the identification of matters which can be properly be deployed in the open case earlier with the possible consequences of reducing the opportunity for the controlled person to respond, on which see the decision of SIAC in MK v Secretary of State for the Home Department 5 September 2006 (SC/29/2004), per Newman J. It may also lead to an application by the special advocates for an adjournment. I do not consider that it is correct to defer the exculpatory review exercise until shortly before the hearing. The directions given under section 3(2)(c) of the PTA can set a timetable for the identification of the issues and should require the exculpatory review to take place after the issues have been identified and leaving adequate time to deal with any additional material served before the hearing. A similar point can be made about material considered to be inculpatory which is only made available shortly before or during the hearing, see for example the letter referred to in paragraphs [63] and [66] below.

[32]Where an argument is evident from the open evidence, there is nothing in the closed evidence which could be said to give any additional support to it, and the controlled person’s legal representatives do not make it, it will normally be inappropriate for special advocates to take the point. But where, although it is possible to make the argument on the basis of the open material, its strength comes from or gains force from closed material special advocates should take the point. Since it is only the special advocate procedure which makes proceedings under the PTA involving closed evidence comply with Article 6, the court must take a broad view of what matters are appropriate for submissions by special advocates.

[33]My third observation concerns CPR 76.33. CPR 76.33(1) and (2) provide that where the court proposes to serve notice on a relevant party of any order, direction or judgment, before it does so it must first serve notice on “the Secretary of State” of its intention to do so. By paragraph 11 of the schedule to the PTA and CPR 76.1 (3) (i), “relevant party” means “any party to the proceedings other than the Secretary of State”, that is including the special advocate. CPR 76.33 (3) empowers the Secretary of State, within 5 days of being served with notice, to apply to the court to reconsider the terms of the proposed order, direction or judgment if he considers that the notification to the relevant party of any matter contained in it would cause information to be disclosed contrary to the public interest. CPR 76.33(4) requires a copy of any application under CPR 76.33(3) to be served on the special advocate, if one has been appointed. In both this case and in E’s case applications under CPR 76.33(3) were made. The application in this case was served on the court after it was served on the special advocates. It was not served in accordance with directions given by the court. No satisfactory reason has been given for the failure either to do so or to inform the court in advance of what was perceived to be a problem. My observation, however, does not concern this regrettable failure on the part of those acting on behalf of the Applicant. It concerns the interpretation of CPR 76.33.

[34]CPR 76.33(6) prohibits the court from serving notice on any relevant party, including the special advocate, until the time for an application under CPR 76.33(3) has expired. Moreover, while CPR 76.33(4) requires a copy of any application under CPR 76.33(3) to be served on the special advocate, if one has been appointed, no provision is made for service of a copy of the order, direction or judgment on the special advocate. In E’s case the Applicant did not serve a copy of the proposed judgment on the special advocates with its application under CPR 76.33(3). The requirement that the special advocate be served with an application under CPR 76.33(3), however, suggests that the intention of the rules is to afford the special advocate an opportunity to make submissions about it. However, unless the order, direction or judgment is so served, the special advocate will either be unable to make such submissions or to do so effectively. In E’s case, in the light of the nature of the application it was possible for the court to resolve the consequent difficulties informally. But what happened suggests either excessive literalism on the part of the Applicant or (see the next paragraph) the dangers of practice not reflecting the rules. In the light of the function CPR 76.24 specifies for a special advocate (see paragraph [28] above), the requirement of service in CPR 76.33(4) should be construed as including a requirement to serve the order, direction or proposed judgment on the special advocate. It would, however, be preferable for the rules to be amended to make this clear.

[35]If CPR 76.33 is amended, consideration should be given to another matter. The practice is that an order, direction or judgment served by the court on “the Secretary of State” under Rule 76.33(1) and (2) is not read by counsel, Treasury Solicitors, or those instructing them but is sent unread to the Security Service, whose legal adviser makes the application under Rule 76.33(3). This is neither expressly nor impliedly required by Rule 76.33. It appears to be a voluntary self-denial on the part of the Secretary of State, reflecting the practice in SIAC cases, a practice Mr Tam said was based on an unwritten protocol. There should not be such a mismatch between the contents of the rules and practice. If it was the intention of the rulemaker that only the Security Service should see the draft order, direction or judgment, this should be reflected in the terms of CPR Rule 76.33. 6 - The Evidence

[36]The Applicant served open and closed evidence. In March 2005 a submission by the Security Service to the Home Secretary in support of the control order setting out the grounds for his decision to make a control order against the Respondent and the evidence relied on in support of those grounds was filed and served. A submission in support of the renewal of the control order was served in March 2006, and in September 2006 a statement that the Security Service continued to consider that unless the Respondent's movements, contacts and/or activities continue to be prevented or restricted, he will re-engage in terrorism-related activity was served.

[37]The March 2005 submission was amended in October 2006 when further documents were served. In November 2006 a second control order statement was served. The Applicant served a brief updating statement in December 2006 which dealt with a televised appeal made by the Respondent for the release of hostages in Iraq in December 2005. In January 2007 the Applicant updated the first control order statement and the renewal submission following the process under CPR Rule 76.29. The amendment to the first statement was a minor one stating that the reason the Secretary of State had refused the Respondent political asylum in 1997, prior to his being granted indefinite leave to remain in the United Kingdom as a refugee in 1998, was that he had fabricated details of his claim. The amendment to the renewal submission dealt with material relied on by the Security Service to show that senior members of Al-Qaida remain in contact with the Respondent and still consider him to be a viable associate. The control order statements setting out the national security case are supported by a statement dated 7 November 2006 by witness “I”, a member of the Security Service, who gave evidence at the hearing.

[38]The other evidence on behalf of the Applicant was given by Catherine Byrne, Deputy Director of the Division in the Home Office containing the team dealing with control orders. Her statement is dated 7 December 2006 and she gave evidence at the hearing. Robert Whalley who, in April 2005, was the Director of that Division, made a statement dated 8 April 2005 dealing in a generic way with the ten control orders imposed on individuals detained under the 2001 Act on 11 March 2005. The court had before it a report dated 20 November 2006 by Dr Christopher Jarman, formerly consultant psychiatrist and honorary senior lecturer at the St. George’s and Springfield University Hospitals. Dr Jarman gave evidence at the hearing.

[39]The evidence on behalf of the Respondent and his wife J consists of a statement by him dated 18 October 2006; two statements by her dated 4 May 2005 and 18 October 2006, statements by their solicitor Mrs Gareth Peirce dated 10 June 2005 and 18 October 2006, and medical evidence. The medical evidence consists of four psychological reports by Professor Ian Robbins, a consultant clinical psychologist and head of service at the traumatic stress service at the South West London and St. George’s Health Services NHS Trust. Professor Robbins gave evidence at the hearing.

[40]The material before the court also contained six letters from Professor Robbins written in the period 28 June 2005 to 12 June 2006. There is a report dated 1 April 2002 from Dr. Mackeith, Emeritus Consultant Forensic Psychiatrist at the South London and Maudsley Hospital NHS Trust who saw the Respondent at the request of his solicitors while he was in HMP Belmarsh. There are two reports dater 4 October 2004 and 25 February 2005 by Dr A Payne, a Consultant Forensic Psychiatrist at Broadmoor Hospital, a report dated 3 May 2005 and a letter dated 22 March 2005 from Dr Frank Kelly a Consultant Psychiatrist working in the Hammersmith and Fulham Mental Health Services and responsible for the Respondent after his release. There is also a copy of a community care assessment report dated 15 February 2005 by Mr Tim Gorvett a senior social worker who saw the Respondent and his wife at Broadmoor and who consulted with Dr Payne and others involved in the Respondent's care. The other reports contain references to reports by Dr Cumming, Head of Health Care at HMP Belmarsh, and Dr Parrott, a psychiatrist instructed by the Home Office. Finally there is a report dated 19 October 2006 from Renée Cohen, a psychoanalytical psychotherapist and independent social worker who considered the impact of the control order on J and the children.

[41]Mr Husain also relied on the reports which had been relied on by the Respondent in E's case. These are "the psychiatric problems of detainees under the 2001 Anti-Terrorism Crime and Security Act" published in December 2004, a broadly supportive statement issued at the same time by the Royal College of Psychiatrists about detainee's psychiatric problems, and the reports by the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment dated 12 February 2003, 23 July 2004, 9 July 2005, and 10 August 2006. The first of these appeared over the names of 8 psychiatrists and psychologists who have provided care and assessment for detainees but Professor Robbins said that he had done much of the writing.

[42]In view of the similarity of the issues in this case and E’s case it was agreed during the hearing that evidence concerning the process of making control orders in general given by Christopher Jones, the team leader of the Home Office civil servants dealing with control orders, in E’s case could and should be considered in the Respondent’s case. It was also agreed that evidence given by Professor Robbins about the report on the psychiatric problems of detainees under the 2001 Act, could and should be considered in E’s case. 7 - The national security case:

[43]The Applicant must satisfy the court of three matters in order to establish his national security case against the Respondent. The first, contained in section 2 (1)(a) of the PTA, is whether there are reasonable grounds for suspecting that the Respondent is or has been involved in terrorism-related activity as defined in section 1 (9) of the PTA. The Respondent denies any conduct at any time such as would permit the making of a control order. The second requirement, contained in section 2 (1)(b) of the PTA, is whether the Applicant has established that the control order remains necessary. The third, contained in section 1(3) of the PTA, is whether the Applicant has established that each of the individual obligations imposed by the control is necessary. The submissions made on behalf of the Respondent and by the special advocate focused on the second and third of these questions. Although the third question is part of the national security case, I summarise the Applicant’s justifications for the individual obligations in paragraphs [138] to [146] after considering the process for making the control order and its impact. Since the challenge to individual obligations relies on the Respondent’s mental health, I deal with that in paragraphs [165] to [176] after setting out the evidence and my findings about his mental health and the effect of the control order on him and his family.

[44]Much of the significant and particularised evidence concerning the Respondent’s past activities and the risk he is assessed to pose is closed evidence. I have referred to the manifest potential for unfairness to a person who is denied the right to know the details of what is said against him: see paragraph [29]. The more of the case that remains undisclosed, the greater is this potential: see the discussion of Secretary of State for the Home Department v AF

[2007] EWHC 651 (Admin)

at [146] ff. In the light of the potential for prejudice, and bearing in mind the standard of proof and the continuing risk to the Respondent that he will be prosecuted, I have drawn no adverse inferences from his failure to give evidence on national security issues.

[45]In the light of the totality of the evidence, the special advocates did not argue that the Applicant’s decision that the requirements of sections 2(1)(a) and 2(1)(b) of the PTA were met was flawed. The system of special advocates provides undoubted safeguards, and has done in this case. It is, however, important for a Court considering closed material to scrutinise it very carefully, to examine its weaknesses and gaps, and to distinguish evidence based assessments from those based on speculation. I have done so and have had regard in particular to material obtained by technical means.

[46]It will be seen from my reasons that I have not relied on the decisions of SIAC concerning the Respondent. SIAC took into account material that, in the light of A & others (No. 2) v Secretary of State for the Home Department

[2006] 2 AC 221

is inadmissible, and there is significantly more exculpatory material before me than there was before SIAC. Since I have been able to reach a clear conclusion on the evidence before me, it was not necessary to consider if it is possible to disentangle conclusions of SIAC that were in part based on inadmissible evidence and those that were not, and, if so, how to do so.

[47]Grounds for suspecting involvement with terrorist-related groups and individuals:The Security Service’s case that the Respondent has been closely involved with senior Islamist extremists and associates of Usama Bin Laden both in the UK and overseas. The amended First Control Order Statement says his activities include the raising and distribution of funds, the procurement of false documents and helping to facilitate the movement of jihad volunteers to training camps in Afghanistan: see paragraphs 2, 20 and 21.

[48]Fundraising and financial support: The following open evidence is relied on in support of the case that the Respondent fundraised and provided financial support for terrorism-related activities. First, a police investigation into his financial affairs showed that, between 1997 and 2001, when his only known legal source of income was state benefits totalling approximately £11,330, his personal bank accounts had received credits of £147,058-96: (First Control Order Statement paragraph 11). During this period he was paying sums of up to £20,000 into the accounts and transferring the money to international destinations within a few days.

[49]Secondly, there is a statement dated 18 October 2002 for his appeal against certification under the 2001 Act and in a document dictated to his solicitors shortly before his release from Broadmoor Special Hospital, and handed by the Respondent to a police officer on 21 March 2005. In this, the Respondent claimed that the funds were collected and transferred for humanitarian purposes. He said these were an Arab school in Kabul, wells and food for Afghani people, and relief for widows, which included the provision of clothes. Shipping receipts dated 30 November 2001 for 5000 kilos of second hand-clothing were found in a police search of the Respondent’s home address: see the Second Control Order Statement, paragraph 6. In his October 2002 statement the Respondent said that he was aware that a number of the parents of children at the school have been stated to be amongst the world’s most wanted men but that his contact with the school and with some of these individuals had nothing to do with any activities of theirs which might be illegal. He said he knew nothing about those activities. In the more recent document the Respondent stated that the school was for the children of parents who moved around between locations such as Afghanistan, Russia, Sudan and Yemen. He referred to a parent who was in Afghanistan after fighting in Russia.

[50]The Applicant accepts that some of the Respondent’s fundraising and the transfers of money were for humanitarian causes, but does not accept that all of it was. Witness “I” stated that the Security Service’s assessment is that some of the transfers were for terrorism-related purposes. Paragraph 7 of the Second Control Order Statement states that the Security Service assesses that individuals leading nomadic lifestyles and travelling between such locations are likely to be mujahidin fighters, and that the majority of support the Respondent offered to school projects in Afghanistan was linked to families of jihadis. The Security Service does not accept the Respondent’s claim that he knew nothing of any illegal activities by the parents of children at the school and that his contact with them had nothing to do with such activities: see paragraph 13 of the Applicant’s Amended First Statement made in October 2006. The Security Service also assesses that those who support terrorist activity view their involvement in humanitarian and educational projects that benefit the Mujahedin and their families as part of their overall support for the Islamic cause: see paragraph 9 of the Second Control Order Statement. There is clear and substantial support for these assessments in the closed evidence. In particular, there is evidence as to the identity of the recipients of funds transferred by the Respondent.

[51]Secondly, reliance is placed on the fact that the Respondent’s statement for his appeal against certification under the 2001 Act says that before he came to England he worked with the Islamic Services Bureau in Pakistan. In that statement he said that the primary function of the Bureau was to provide relief for refugees from Afghanistan. Paragraph 14 of the Applicant’s Amended First Statement states that this Bureau is probably identical with Maktab Al-Khitmet, a body on the UN list of entities associated with Al Qaida. The reason given for this assessment, that the literal translation of Maktab Al-Khitmet is “Office of Services” or “Services Bureau”, is a reasonable one. Although Mr Husain asked witness “I” whether Maktab Al-Khitmet still existed, he did not challenge the assessment that it was the entity for which the Respondent worked in Pakistan.

[52]Operational support, provision of false documents and facilitation of travel for Islamic extremists: The evidence on these issues is all closed. I have scrutinised it carefully on the basis I have set out in paragraph [45] above and am satisfied that it supports the assessment that there are reasonable grounds for suspecting that the Respondent was involved in these activities.

[53]Association with key extremist figures: The only associations relied on in the open evidence are with Abu Hamza, with whom the Respondent is said to be “heavily involved”, and Abu Zubeida, a senior member of Al Qaida, with whom he is said to be “well-acquainted”. The Respondent’s statement for his appeal against certification under the 2001 Act says that he was considered to have a strong link with Abu Hamza because when he spoke to people in Afghanistan, where Abu Hamza was thought to be too extreme and cause problems worldwide, he said Abu Hamza was not so bad and was trying his best. The closed evidence provides support for the assessment that the Respondent’s involvement with Abu Hamza included the dissemination of extremist literature. The closed evidence also shows that, notwithstanding what the Respondent has said about the association, it was not innocent. Since the control order was imposed Abu Hamza has been convicted of soliciting to murder, stirring up racial hatred and possessing a terrorist encyclopaedia. The Respondent’s association with Abu Hamza was clearly a matter the Security Service was entitled to take into account and supports the assessment that the Respondent was involved in terrorism related activities. There is also closed evidence of association with other extremist Islamists who are associated with Al Qaida.

[54]Dissemination of extremist literature: Paragraph 18 of the Applicant’s Amended First Statement made in October 2006 states that it is assessed that the Respondent was involved in 1997 in the dissemination of extremist literature, including Al-Ansar, a publication of the Armed Islamic Group, the “GIA”, an organisation which aims to overthrow the government of Algeria and replace it with an Islamic state, has been responsible for a number of terrorist acts, and is now proscribed under the Terrorism Act 2000. Witness I stated that 1997, the year when the Respondent was disseminating GIA propaganda, was the bloodiest year in Algeria. I have referred to the statement that the Respondent’s involvement with Abu Hamza included dissemination of extremist literature.

[55]The test of “reasonable grounds” is not a high hurdle: see O’Hara v Chief Constable of the Royal Ulster Constabulary

[1997] AC 286

,298 (Lord Hope); R ( S) (Sexual Abuse Allegations) v Swindon BC and Wiltshire CC

[2001] EWCA 334

; S v Home Secretary, SIAC, 27 July 2004, paragraph 41. It is clearly satisfied in this case. For the reasons given above, a wealth of closed evidence supports the assessment that the Respondent has been involved in terrorism related activity, a significant international terrorist with extensive extremist contacts, and undertook a wide variety of terrorist support activity. The Applicant’s decision that there are reasonable grounds for suspecting the Respondent of such involvement is not flawed.

[56]The continuing necessity for the control

[57]The factors to be taken into account in considering whether a control order is necessary require an assessment of the risk to national security. Such an assessment involves a value judgment. Guidance as to the approach to be taken on this issue is given in the decision of the Court of Appeal in MB’s case:

[2006] 3 WLR 839

, at [63]. Accordingly, I have had regard to what is sometimes termed the relative institutional competence of the courts and the executive branch of government, a matter which at one time was discussed in terms of the relative justiciability of an issue: see for example Council of Civil Service Unions v Minister for the Civil Service

[1985] AC 374

, at 405 per Lord Scarman and Galligan, Discretionary Powers (1986) at 241. Whether couched in terms of “relative institutional competence”, “relative justiciability” or “deference” (a term which may have inappropriate constitutional implications), the approach is a reflection of the perception that in many cases the court will not be in a position to substitute its opinion for the opinion of those responsible for national security. The Secretary of State has the benefit of the advice of the Security Service, the Police and other bodies in assessing the measures necessary to protect the public against the activities of a terrorist suspect. As was stated in MB’s case, he is better placed than the court to decide the measures that are necessary to protect the public. The factors to be taken into account in determining the restrictions that it is necessary to impose include the nature of the suspected involvement, the resources available to the Secretary of State, and the arrangements that are, or can be, put in place for surveillance. However, I also have regard to the statement in MB’s case at paragraph [65] that there is scope for what was described as “intense scrutiny” of the necessity of the individual obligations imposed. Such scrutiny will depend in part upon the evidence before the court.

[58]There is undoubted force in Mr Husain’s submission that the lapse of time and the effect of the Respondent’s detention and of the control order on him and of his mental state must be taken into account in assessing whether it remains necessary for him to be subject to a control order. But the impact of this factor depends on the evidence, and in particular the evidence since the imposition of the control order in March 2005: see

[2007] EWHC 233 (Admin)

at [90].

[59]At the time the control order was imposed and at the time it was renewed the Applicant stated that it was necessary to prevent or restrict his resumption of terrorism related activity. He was assessed to have been involved in terrorism related activity, and a significant international terrorist with extensive extremist contacts who undertook a wide variety of terrorist support activity. Paragraph 5 of the Open Renewal Statement made in March 2006 and amended in January 2007 also said that the Security Service considered that the Respondent has not wholly complied with his control order and that he continues to engage in terrorism-related activities. The Applicant has relied in part upon the decisions of SIAC in July 2004 and January 2005. For the reasons given in paragraph [46] I have not relied on those decisions.

[60]The first factor in considering whether the control order remains necessary is the potential harm that could result if the Respondent re-engages in terrorism related activity. The case against him is that he provided financial and logistical support for terrorist and terrorist support networks. It is clear that those who do this pose an enormous danger to the public around the world.

[61]The second factor is the Respondent’s capacity and willingness to re-engage. The Security Service assessment is that, despite his period in detention and the detention or disruption of many of his associates, the Respondent still possesses the capacity, the contacts and the knowledge to provide essential support to a terrorist cell. Although some of his contacts have been imprisoned and some are dead, the range of his contacts was so extensive in terms of ethnicities and Islamic groups that it would be easy for him to re-engage. Asked whether others would not be reluctant to re-engage with him because he would be under surveillance, witness “I” said this was logically possible but where people were motivated by ideology decision-making may not be rational (in the sense of personal benefit rather than advancing the ideological cause). “I” said that at the present time the national security case did not put a lot of weight on the Respondent’s support for Algerian groups, but said his support for them is indicative of the variety of groups he has been involved with. “I” agreed that, at present, “support” meant as a sympathiser; the Security Service do not assess activities at the present time.

[62]The Security Service considers that since his acknowledged mental health problems did not impede his capacity to undertake these activities before his detention it will not do so now. Witness “I” stated that although during the period of his detention others would have had to fill the Respondent’s role, because extremist networks evolve, splinter and new networks emerge, there was a continuing need for the Respondent’s fundraising and facilitation skills and he would continue to be of use to new networks and associates. Witness “I” accepted that the Respondent’s skills were likely to be rusty when he was released but said they would improve as time passed and he had contact with associates. The witness was more specific when giving evidence in the closed hearing.

[63]As far as willingness is concerned, the Security Service assess that the Respondent has the intent to re-engage. This assessment is based on his level of commitment and the range of his activities and associates before his detention in 2001. It is also based on his continued associations since the control order was imposed with Islamist extremists and on the assessment about his activities since then. There are two open matters concerning associations; a letter sent in the summer of 2005 by Al Zawahiri for Al Zarqawi referring to a book, The Knight under the banner of the Prophet, he had passed to the Respondent for publication, and contact in July 2006 with Mustapha Melki, an Algerian extremist who had been detained under the 2001 Act. Apart from this the evidence in support of the assessment is closed evidence. The Al Zawahiri letter, served as closed evidence on 18 December 2006, was added to the open evidence during the hearing after it emerged that it had been put on the internet by the Iraqi authorities. The closed evidence supports these assessments.

[64]Asked how the control order’s obligations have impacted on the risk, “I” said the Respondent’s understanding of the conditions lead him to limit certain behaviour, for example going out to meet people. “I” said that one consequence of the obligations is that he will modify his behaviour and this will make it less likely that he will offend, so that the control order is a significant limiting factor. While accepting that the threat the Respondent poses has been reduced, “I” said the major factor in such reduction is the control order and the restrictions contained in it. “I” did not accept that if the Respondent is warned about his activities he would modify them, but was only able to be more specific when giving evidence in the closed hearing.

[65]The evidence that there are new extremist networks and as to the way that networks evolve supports the assessment that there is a continuing need by such networks for the terrorism-related fundraising and facilitation skills the Respondent is assessed to have. I have concluded that the Respondent has the capacity to engage in such activity. I do so because of the evidence of his level of commitment and the range of his associates and former activities. The evidence in both this case and in E’s caseis that those whose activities are disrupted by official action often engage in their previous activities once they are able to. Paragraph [89] of the judgment in E’s case refers to the support for the assessments provided by the first instance judgment in the Belgian cases that the degree of indoctrination of those at the heart of the radical Islamic movement as rendering them highly prone to recidivism, and I have also had regard to this. As for his mental health problems, before his detention these did not mean others were not willing to involve him in terrorism-related activities and did not prevent his activities. The assessment that, despite his detention, they will not do so now is not flawed.

[66]I have also concluded that the Respondent is willing to engage in such activity. Almost all the evidence in support of the Security Service’s assessment is closed. Al Zawahiri’s letter, one of the two items of open evidence, does not in fact support the assessment of continued association with extremists since the control order. Since Al Zawahiri asks Al Zarqawi whether he is in contact with Abu Ramsi, who it is accepted is the Respondent, the letter does not provide evidence that Al Zawahiri was in contact with the Respondent in June 2005 or at any time after the Respondent was released from detention. Moreover, in the light of Mr Friedman’s submissions based on the evidence considered at the trial of Yasser Al Sirri inter alia for attempting to publish the book, in which he appeared, I accept that the reference to Al Zawahiri giving the Respondent a copy of the book is probably to something which occurred before the Respondent’s detention. The use made of this document was unfortunate. It was originally served as closed evidence because of a link with another item of closed evidence but, since it had been posted on the internet by the Iraqi authorities, it should not have been so served. Moreover, in the light of Al Sirri’s prosecution the authorities should have been aware of when it was likely that the book was given to the Respondent. Using the letter as evidence of contact in 2005 suggests either insufficient analysis or carelessness, perhaps because the letter and its implications were only considered shortly before the adjourned hearing.

[67]The closed evidence does, however, support the Security Service’s assessment that since the control order was imposed the Respondent has associated with significant Islamist extremists and has engaged in conduct which legitimately gives rise to concern. It also shows that he has engaged in conduct the Security Service is entitled to regard as security measures and covert activity. I accept the Applicant’s submission that this evidence confirms the earlier assessments that the Respondent was likely to re-engage in terrorism-related activity. It is, however, particularly significant that the Applicant’s case that it remains necessary to subject the Respondent to a control order is not solely based on the historical evidence.

[68]Paragraph 4 of the December 2006 Open Control Order Update states that the Security Service assesses that a televised appeal by the Respondent in December 2005 for the release of Norman Kember and his colleagues, who had been taken hostage in Iraq, was likely to have been prompted by tactical considerations as an attempt to further his own cause rather than by moral or ideological considerations. A press statement containing an appeal by the Respondent during 2004 for the release of Kenneth Bigley is also assessed as prompted by tactical considerations: see paragraph 11 of the Second Control Order Statement. These assessments are matters to which the court must have regard, particularly since there is no other evidence (for example from the Respondent) about the broadcast and the press statement. But they are of less significance than the other evidence relied on by the Applicant, and potentially speculative. For instance, witness “I” agreed that it was conceivable that the Respondent might have wished to express solidarity with someone he thought was an innocent victim although not a Muslim. I have not relied on the assessments in reaching my conclusion.

[69]The Applicant also relies on breaches of the control order. There are three in the open evidence. The first, to which I have referred, is breach of the requirement to wear the tag on 26 April 2005 while the Respondent was medically aroused. A prosecution for that was discontinued. The second is apparently having a mobile phone switched on in the residence on 1 June 2005. The third is failing to contact the monitoring company at the correct time at night on 26 June 2005. After that, he was warned that if he missed another call it would be a breach. Witness “I” stated that the police reports he read showed that real efforts have been made to make the obligations clear to the Respondent but the control order statements do not refer to him being warned about breaches since the one on 26 June 2005. There is evidence in the closed material to support the assessment of the Security Service that the Respondent has shown a disregard for the conditions of the control order and that he is prepared to breach the restrictions imposed on him. 8 - The Process for making the control order:

[70]The evidence given in both this case and in E’s case about the process for considering whether to make a control order in general, including extracts from the minutes of the meetings on 7 and 8 March 2005 to discuss control orders for ten detainees under the 2001 Act, is set out in paragraphs [97] to [106] of the judgment in E’s case. It is not necessary to set it out again. It suffices to repeat the summary of the evidence on generic points contained in paragraph [106]. In substance this is:- 1. The decision to make a control order is made by the Home Secretary on the basis of a detailed intelligence assessment by the Security Service containing closed and open evidence and proposed obligations. 2. When considering what obligations are to be imposed upon an individual, advice is taken from the Security Service, the Police, legal advisers, and from any other relevant body. 3. In the case of the Police, the officer consulted by the Home Office is DAC Peter Clarke, the National Co-ordinator for Terrorist Investigations. 4. The Applicant does not accept that he is required to provide an opportunity to make representations before making or renewing a control order. 5. Meetings on 7 and March 2005, which considered the cases of the Respondent and nine other people detained under the 2001 Act, were attended by the Home Secretary, Home Office civil servants and legal advisers, counsel, DAC Clarke, and members of the Security Service and their legal advisers.a. The meeting on 7 March had before it submissions by officials as to the individual cases and those present explained the background to the cases and why they recommended the chosen controls to the Home Secretary.

b. The Home Office officials had information about the individuals available from the bail applications in SIAC proceedings, including information about their mental health and about their families. Paragraphs 4 and 28 of the Minutes of the meeting on 7 March record that the Home Secretary asked to what extent other members of the household would be inhibited from carrying out their lawful activity and that Sir John Gieve, the Permanent Secretary asked whether the impact of the family had been considered, and was told that this had been considered and this was reflected in a submission.

c. The meetings considered the mental health of the individuals in Broadmoor, including the fact that some had suicidal tendencies. Mr Whalley confirmed that the mental health care of those being released was being considered.

d. The Home Secretary asked about the effect of the control orders on the families.

e. The Home Office was aware that a control order would have a substantial effect on the family of the controlled person and family circumstances were considered.

f. There had been no dialogue with those under consideration or their legal representatives because the Bill which became the PTA was still before Parliament.

g. The control orders made as a result of the meetings on 7 and 8 March 2005 had a common framework but despite substantial similarities, the obligations were not identical. 6. In May 2006 the Control Order Review Group (“CORG”) was established to bring together the Police, the Security Service and the Home Office on a quarterly basis, inter alia to review the orders, to ensure the obligations are still the right ones and to advise the Home Secretary on his quarterly report to Parliament. Before that there was a more informal but similar method of reviewing control orders. a. As well as Home Office officials, including controlled persons’ caseworkers, the Metropolitan Police, SO12, SO13, the Security Service and legal advisers attend CORG. b. The controlled persons’ caseworkers can, and have, raised matters concerning families which were discussed at meetings of CORG. c. Agencies concerned with the health or welfare of children are not represented and CORG does not take active steps to investigate the position of the family.

[71]I turn to the evidence concerning the Respondent. Miss Byrne was asked about consulting him and his family about the impact of imposing a control order on him. She said that before making the control order there was a need for urgency because the Bill that became the PTA was only passed on Friday 11 March 2005 and the legal basis for detaining those detained under the 2001 Act, including the Respondent, would disappear if that Act was not renewed on Monday 14 March 2005. Additionally, the Home Office did not wish to alert the Respondent lest he went to ground.

[72]Witness “I” said the focus of the Security Service when recommending a package of restrictions is the control of risks posed by the individual in the context of the PTA. The obligations are chosen to limit the risk in the national security context. “I” said the Security Service was aware that the Respondent’s experience in prison had an adverse effect on his health but it is not the function of the Security Service to consider the impact of the restrictions on the mental health of the controlled person or his family. That is more a question for the Home Office, but in this and other cases the Security Service took some account of the impact on the family in balancing the risks. “I” first read the medical reports in November when preparing for the hearing.

[73]Miss Byrne said the process of deciding whether to make a control order involved balancing the national security concerns with the impact of the restrictions on the mental health of the controlled person and on his family and to establish what was strictly necessary and what was proportionate in all the circumstances. She said the Home Secretary and the Permanent Secretary were concerned to know about the way in which the Respondent’s family would be affected.

[74]Miss Byrne said the Home Office knew about the medical material concerning the Respondent before the bail hearing at SIAC on 28 January 2005 and officials were in touch with Broadmoor during the period to ensure there was a care plan. On 15 February 2005 Mr Tim Gorvett, a senior social worker, carried out a community care assessment pursuant to section 117 of the Mental Health Act 1983. This was considered at a review meeting at Broadmoor on 16 February attended by Dr Payne, the consultant psychiatrist responsible for the Respondent in Broadmoor, Dr Kelly, a consultant psychiatrist at the Hammersmith and Fulham Community Mental Health Trust, which would be providing psychiatric follow-up on the Respondent’s release from Broadmoor, and Professor Robbins, who it was planned would see him for psychological therapy. No one from the Home Office was present at these meetings but Miss Byrne said she was aware of the steps taken regarding the mental health care the Respondent would receive after his release. She said the care plan drawn up at the review meeting was made with a view to his care on bail and thereafter while he was subject to a control order, and in the knowledge of the likely conditions.

[75]Mr Gorvett’s assessment states that he considered the Respondent’s discharge posed a considerable risk because, although he would no longer be subject to the pressures and stress triggers of Broadmoor, he would also lose the support that setting afforded. The section 117 report said that at the time of his assessment, the Respondent was “struggling with the prospect of return to the community and to the role of husband and father, together with the prospect of being subject to significant restrictions”. The minutes of the meeting, which Professor Robbins said reflected the views of all those present, identified three things as important. First, that any restrictions do not impact on Mr Abu Rideh’s wife and children because this would be likely to exacerbate the difficulties in the relationship with his wife and affect his ability to re-adjust to living in the community. Secondly, in order to regulate Mr Abu Rideh’s emotional state it is important he has the opportunity to remove himself from stressful domestic situations by removing himself from the house. Thirdly, that he continues to have social contact with members of his family and the Muslim community, including access to a telephone and permission to attend a local mosque. In a letter dated 28 February 2005 to the Mental Health Review Tribunal at Broadmoor Professor Robbins said that it would be helpful if the conditions under which Mr Abu Rideh was to be released allowed him to go out whenever necessary because in the past he found leaving home and walking one of the most successful strategies for dissipating high levels of arousal and that this acted as a safety mechanism. He also stated that he felt “any draconian conditions around [Mr Abu Rideh’s] release in terms of freedom of movement etc. would be damaging”.

[76]Miss Byrne said that the issue and the details of the Respondent’s mental health condition were considered by officials and brought to the attention of the Home Secretary prior to the making of the control order. Other factors, including the effect of the control order obligations on his family were also considered. In his statement Mr Whalley, then the Director of the Division, deals with the position of the ten detainees generically and states that account was taken of the known personal circumstances of each individual including mental health. Mr Whalley's response dated 3rd May 2005 to the request that the decision to make a control order and the obligations imposed on the Respondent be reviewed states that, notwithstanding his mental health, it was considered that the decision to make the order and the obligations imposed were appropriate and proportionate. Mr Whalley states that the Home Secretary “has not seen any mental health assessment that indicates an inability to comply with the control order obligations due to Mr Rideh's mental state”. Miss Byrne did not know whether the Home Secretary saw the community care assessment or whether Mr Whalley read it. She was not aware of any discussion of the report of the European Committee for the Prevention of Torture about those detained in Broadmoor but the Respondent’s mental history was discussed.

[77]I have referred to the Minutes of the meeting of 7 March 2005. Paragraph 7 states:- “In relation to the three detainees in Broadmoor the Home Secretary asked whether it was the Security Service’s view that they would seek to recoup or would re-engage in their previous activities. Although [he] had not seen the medical advice [Redacted name] was of the view that all would re-engage. Bob Whalley highlighted the additional risk that some of them had reported suicidal tendencies. In response to a question from Sir John Gieve, Bob Whalley confirmed that mental health care of those released was being considered.”

[78]Miss Byrne said she believed the person who said that he or she did not see the medical advice was from a security background. Paragraphs 18- 20 of the minutes concern the Respondent. They state:- “18. [redacted name] explained the case against Ridehand his family circumstances as per [redaction] submission of 7 March 2005. 19. The Home Secretary asked for further detail on Rideh’s mental health. [Redacted name] explained that there had been mental health issues before he had been certified and SIAC had recognised that these did not affect his ability to engage in terrorist activity. 20 [redacted]”

[79]Paragraph 2 of the Minutes of the follow-up meeting of 8 March 2005 concerns the Respondent. This states:- “[Redacted name] provided a copy of SIAC’s recent judgment in relation to granting bail “in principle” which provided the additional material on Rideh’smental health that the Home Secretary had requested.”

[80]Miss Byrne said the Home Secretary knew of the Respondent’s mental health problems and was anxious to assure himself that he would have access to appropriate medical care. The nature of that care was for his medical practitioners and the control order obligations would permit him to obtain it. She referred to a report dated 3 May 2005 by Dr Kelly, the psychiatrist who was responsible for the Respondent’s care after his release. This states that the care plan was quickly implemented upon his release from Broadmoor. Miss Byrne said that as far as she knew no member of the team had any training in psychiatry or psychology. The Home Office had commissioned medical reports on him during his detention under the 2001 Act. However, apart from Dr Jarman’s report for the present proceedings and evidence in relation to a claim by the Respondent in the European Court of Human Rights, she said that, since then, the Home Office has not commissioned any medical assessment of the Respondent.

[81]The Respondent’s case was reviewed in the light of the application by his solicitors on 3 July 2006 that in the light of his mental health and the view of Professor Robbins, the psychologist treating him, and the effect of the control order on the family, it be revoked or that individual obligations be removed or relaxed. The letter asked that the curfew requirement be reduced to night time hours only with latitude to attend evening and early morning prayers, the night-time telephoning requirement and the prohibition on unauthorised visitors and pre-arranged meetings be removed, and the prohibition on internet access modified to permit access by members of the household apart from the Respondent. The application to remove the requirement for night-time calls was based on the effect of this requirement on the Respondent’s mental health and behavioural difficulties which were said to be exacerbated by lack of sleep. On 18 August 2006, no reply having been received, a Notice of Appeal pursuant to section 10(3) of the PTA was lodged in respect of the application. The Home Office responded in a letter dated 8 September 2006. This refused the application in its entirety.

[82]The letter gives the following reasons for refusing the application to remove the night-time telephoning requirement. Ouseley J required this in substitution for the requirement that the Respondent wear a tag. The timing of the calls were agreed mutually by the Applicant and the Respondent’s solicitors and "were designed to coincide with [his] specific health needs as well as his religious requirements, in particular that the timing of his first early morning call did not interfere with his morning prayers". No appeal was made against this decision. Moreover, although one of the medical reports relied on is dated July 2005, the issue was not raised in September 2005 when at the request of the Respondent's solicitors the reporting time was moved forward to reflect seasonal changes. The letter also states that the assertion that the Respondent's mental health and behavioural difficulties are exacerbated by lack of sleep appeared at odds with the request made in the context of relaxation of the curfew to enable him to attend 3am prayers. The letter states that in the absence of wearing a tag, the telephoning obligation is a means of monitoring compliance with the curfew.

[83]The application to modify the terms of the curfew was refused on the ground that the curfew reduced the Respondent's ability to re-engage in terrorism-related activity. The letter states that the Secretary of State has been flexible in relation to the requirement by varying it during Ramadan but that the security case justified a 12 hour curfew. The application to remove the prohibition on unauthorised visitors and prearranged meetings was refused on the ground that these reduced the risk that the Respondent posed to national security and because the Applicant considered that his case was different from that of the controlled persons in the JJ cases.

[84]The application to modify the prohibition on internet access within the residence was rejected on the ground that the Respondent's family was not prevented from using internet facilities outside the residence and because the suggestion that the purpose of this obligation could and should be served equally well by monitoring and retrospective analysis of computer equipment was not accepted.

[85]Miss Byrne was asked why there was no dialogue with the Respondent or his solicitors after the PTA was passed. She said that the Respondent was told of the obligations imposed by the control order and that thereafter there was correspondence with Birnbergs. A complete set of the correspondence is exhibited to her statement.

[86]Paragraph 23 of Miss Byrne’ statement says that the Home Office “has taken steps to encourage those subject to control orders to make any proposals they wish to make for variations (either temporary or permanent) of the obligations that they are under, so that these proposals can be properly considered”. Her evidence is that the covering letter to a control order indicates that questions about its content or the obligations can be put to the Control Order Contact Officer, whose contact details are provided, and there is also a specific Police Liaison Officer appointed for each controlled individual. Mr Jones’s evidence in E’s case was identical to Miss Byrne’s. While their evidence may reflect more recent practice, the document sent to E did not invite representations about the obligations or indicate that they could be made to the Control Order Contact Officer. It only dealt with the position where E was “required to seek agreement from, notify or otherwise contact the Home Office for the purposes of any of the obligations imposed by the order”:

[2007] EWHC Admin 233

at [50] and [302]. There is no copy of the covering document sent to the Respondent in the papers before me. It is unlikely that it was in different terms to the document sent to E on the same day.

[87]In December 2006 a letter invited the Respondent to make representations about matters he wished the Secretary of State to take into account when considering the renewal of his control order. Miss Byrne said this was the first time the Home Office initiated contact but it had been open to representations throughout the period of the control order. She said the letter was part of the preliminary work and no decision about renewing the order had been taken. The letter was written because the Home Office always invited controlled persons to make representations about their conditions which would be taken into account during the life of the order. She also said that in the course of preparing for the control order hearings in the cases of E and the Respondent the Home Office thought it sensible to give the Respondent the opportunity to make specific representations so that the Home Office had those representations before the time when it would decide whether to renew the order. She said that this was a new procedure bearing in mind what the Home Office had learned through the process. It seemed a good way of ensuring that the controlled person could raise matters which could be considered by the Home Secretary. Asked about the reference to “control order contact officer”, she said this was a function. Three or four of the seven in relevant team are control order contact officers. Miss Byrne said that the Home Office did not write inviting representations from J, as they had written to the Respondent, but that they would welcome representations from her.

[88]Miss Byrne was aware of the letter before action dated 26 May 2005 sent on J’s behalf. She said that representations made on behalf of the families of controlled persons sent to the Home Office were considered. The Home Office did not have systems in place to take active steps to acquire information about J and the children but when making the control order and thereafter they took into account what the police knew of the circumstances of the family and representations received about the family. The Home Office, the police and the Security Service were the principal departments represented at CORG. Miss Byrne was not aware that any organisation responsible for the welfare of children attended CORG meetings.

[89]Asked about the training and in particular the welfare training provided to police contact officers, Miss Byrne said that standard police training includes training in welfare issues and that a controlled person’s police contact officer receives a full briefing on the order and any issues that could reasonably be anticipated to arise in the particular case. Special Branch co-ordinates the work of police contact officers and the Home Office team dealing with control orders, which operates a twenty-four hour on call system, is in constant contact with Special Branch. If concerns are raised with contact officers they will either tell the controlled person to contact the Home Office or are communicated to the Home Office via Special Branch. Concerns held by contact officers are communicated in the same way. In the case of important concerns, a written record is made. Miss Byrne did not know whether police contact officers attend CORG meetings but said they feed information into the discussions at CORG.

[90]Summary of the evidence about the Respondent’s case: The evidence shows:- 1. The Respondent’s medical records from his detention were available to and considered by the Home Office officials. 2. Home Office officials were in touch with Broadmoor during the period to ensure there was a care plan for the Respondent. It was not considered that his case was one in which the need to take into account the medical evidence outweighed the need to make a control order. 3. The Respondent’s family circumstances were explained to the meeting on 7 March 2005. 4. The Respondent’s case was reviewed in the light of the representations in his solicitors’ letter dated 8 April 2005, which were considered by the Home Secretary personally 5. The Home Office has considered the representations made on behalf of the Respondent concerning particular obligations 6. The Respondent’s case was reviewed early in 2006 when the renewal of the order was under consideration and in the light of the judgments in the cases of JJ and others. 7. The Respondent’s case was reviewed on 10 May, 16 August and 17 November 2006 by CORG. The view at each of the meetings was that the security case in relation to him still stood and that the obligations remained necessary and proportionate. 8. The minutes of the CORG meeting on 10 May 2006 state that The Respondent’s state of mental health continued to be an issue. It is stated that he was known to self-harm, had been admitted to hospital during his control orders in connection with his mental health problems and his behaviour remained unstable. The minutes refer to the replacement of the obligation to wear a tag with additional reporting obligations and that, at that time, no other variations or modifications had been requested. It is stated that “close attention should continue to be paid to Rideh’s access to appropriate medical assistance”. 9 The Respondent’s case was reviewed in the light of the application by his solicitors on 3 July 2006 but in a letter dated 8 September 2006 the Applicant refused the application in its entirety.

[91]Summary of evidence concerning J and the children: The evidence shows:- 1. There was no consultation with J before the control order was made or before it was renewed. 2. The Home Office agreed that it was important to know the impact on the family of a control order both when making it and when renewing it and the Home Office was aware that orders had substantial impact on families. 3. There is no system for the regular review of the impact of the control order on J or the children. 4. The Home Office were furnished with information about the position of J and the children in the letter before action dated 26 May 2005, Mrs Peirce’s statement dated 10 June 2005, and her letter dated 3 July 2006. 9 - Consideration of the possibility of prosecuting the Respondent:

[92]The generic evidence given in this case and in E’s case on the consideration of the possibility of prosecution of the detainees under the 2001 Act who were subjected to control orders is set out in paragraphs [107] to [124] of the judgment in E’s case. It is not necessary to repeat what is stated there. Paragraph [124] summarises the evidence about the possibility of prosecution of the detainees under the 2001 Act who were subjected to control orders as follows: 1. There was an exchange of correspondence between the Home Office and the Police in 2004 about prosecuting those detained under the 2001 Act and the circumstances in which the Police would and would not consult the CPS. 2. On 11 January 2005 the Home Office asked the Police and the CPS to consider whether there was sufficient evidence to mount a prosecution of any of those detained under the 2001 Act. 3. Miss Hemming, Head of the Crown Prosecution Service’s Counter Terrorism Division, and a Detective Superintendent visited Thames House on 18 January 2005 and considered the case against 13 detainees with a view to whether there would be any prosecution of them.a. The review was carried out by considering the full (i.e. closed as well as open) statements prepared by the Home Secretary for the proceedings under the 2001 Act but without reading all of the primary material against each detainee.

b. The statements were “substantial documents summarising the main case against each person and identifying where the information came from”. They were similar to the statements of the Secretary of State’s case for making the control order; that is with footnotes identifying the source and nature of the evidence.

c. The majority of the information relied upon in the hearings under the 2001 Act comes from sources that could not be relied upon in a criminal case. This is because it comes from intelligence sources or agents and could not be revealed publicly, from material that is legally incapable of use, or from material that would be ruled inadmissible.

d. Any material potentially admissible had already been considered and rejected or had been the subject of a criminal prosecution. It is stated that one case (No 7) had previously been reviewed by SO13 and the CPS, and that in another (No 11) that there had been a full review of all admissible evidence.

e. In the only case (No 5) where the primary material had not been considered by either the Police or the CPS (AG), Miss Hemming and the Detective Superintendent considered it and concluded that it was incapable of amounting to an offence.

f. In the case of one of the detainees (No 7) Miss Hemming records that she had asked for an enquiry to be made with the authorities in an EC country to see if they have anything to assist with regard to prosecution.

g. Subject to the outstanding inquiry referred to about case No 7, there was no identifiable material that was capable of further criminal investigation in any of the cases. 4. At the meetings on 7 and 8 March 2005 reliance was placed on the conclusion in Miss Hemming’s letter of 19 January 2005 that prosecution was not possible in any of the cases. 5. The Home Office request leading to the letter of 19 January 2005 was the only occasion on which the CPS was asked to consider the possibility of prosecuting the detainees under the 2001 Act, including E and the Respondent, about whom Birnberg Peirce had inquired on 6 April 2003 and 21 November 2006. 6. The Police would only refer a case to the CPS if they believed that sufficient admissible evidence was identified to support a prosecution. 7. The Security Service made the case against an individual in a similar way to the case before the Court, but without supporting documents. The Police would have had much of the documentary evidence because of ongoing consultation with them by the Security Service during its investigation. 8. If material came to light indicating the possibility that an offence might have been committed the Security Service would consult the Police. Ad hoc consultations by the Security Service with the Police occur frequently. 9. At CORG meetings Mr Jones, from the chair, asked questions including those updating information relevant to prosecution. The Home Office considered it was for the Police to respond and to raise matters updating the position about the potential for prosecution at the meeting. Mr Jones said that updating evidence about prosecution for the underlying offences is also brought to the meeting by the Security Service. 10. CORG’s quarterly reviews only considered activity in the particular quarter and not the whole case.

[93]The exchange of correspondence in 2004 referred to in paragraph [92(1)] is an enquiry in May by an official in the Home Office’s Crime Reduction and Community Safety group about the consideration of prosecution and the reply, dated 22 September 2004, from DAC Clarke. The reply stated that in the case of those detained under the 2001 Act any examination of the case by the police focused on whether or not there was sufficient admissible evidence to support a prosecution. Where such evidence was identified, the cases were submitted to the Crown Prosecution Service. Where there was not, the cases were not submitted to the Crown Prosecution Service and it is not police practice to seek the advice of the CPS where the lack of admissible evidence is clear. Miss Byrne said that if prosecution was possible it was always the preferred option; this was the standard and continuous policy. She said that she knew of two cases in which prosecutions were brought after certification under the 2001 Act.

[94]The letter dated 11 January 2005 referred to in paragraph [92(2)] was from Miss Byrne to Assistant Commissioner Sir David Veness. It concerned a government review of the options available to it in the light of the decision in A and others v Secretary of State forthe Home Department

[2005] 2 AC 68

. It states that the Home Secretary wished the cases of those detained under the 2001 Act to be reviewed by the Police and the CPS “with a view to your determining whether there is yet sufficient evidence to mount a prosecution in any of their cases”. The letter also refers to discussions about this in 2004, states that the Home Secretary wanted to be able to update colleagues and Parliament, and asks for a response “next week”.

[95]Miss Hemming’s letter of 19 January 2005 is set out in full in paragraph [110] of the judgment in E’s case. Each detainee is identified by initials and is dealt with in a short paragraph.It says of the Respondent, identified as “MR”, that:- “MR was detained on [date]. He was the subject of a financial investigation from 1997 to 1999 but there was insufficient evidence to prosecute him for any criminal offences. Most of the material against him comes from closed or inadmissible sources that could never be relied on in a criminal prosecution.”

[96]Miss Byrne said that she saw Miss Hemming’s letter before the meeting on 7 March 2005. It is clear that its purpose was to assist the Police with their reply to the Home Office. The minutes of the meeting on 7 March state the Home Secretary was advised by Mr Whalley that consideration had been given to prosecution of each of the ten under consideration but the Crown Prosecution Service had confirmed in the letter dated 19 January 2005 that prosecution was not possible. The minutes of the follow-up meeting on 8 March also refer to the letter. Miss Byrne said that the “advice” referred to in the control order statements was that contained in the letter of 19 January but there was also some discussion at the meeting on 7 March. It was her understanding that the possibility of prosecution was discussed in front of DAC Clarke who did not demur from Mr Whalley’s statement that the CPS had advised that prosecution was not possible.

[97]Section 8(2) of the PTA provides that, before making a control order, “the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism”. When first consulted the chief officer is required to consult the relevant prosecuting authority: section 8(5) of the PTA. Thereafter, the chief officer is required to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect, and the chief officer is only required to consult the relevant prosecuting authority if he considers it appropriate to do so: sections 8(4) and (5) of the PTA.

[98]The position in this case in relation to consideration of the possibility of prosecution before the control order was imposed in March 2005 is virtually identical to that in E’s case. For the reasons set out in

[2007] EWHC 233 (Admin)

at [244] to [266] I concluded that the Applicant did not breach his duty under section 8(2) of the PTA to consult the relevant chief officer of police and the chief officer did not breach his duty to consult the relevant prosecuting authority. It follows that, for the same reasons, I do not consider that there has been a breach of section 8(2) in the present case.

[99]In relation to the assessment of the prospects of prosecuting the detainees by Miss Hemming and the Detective Superintendent on 18 January 2005, Mr Husain relied on comments by SIAC in its decision in MK v Secretary of State for the Home Department SC/29/2004, 5 September 2006about the nature of the Security Service’s statements and their supporting documents. It was said that SIAC’s task is to consider the factual basis for the Secretary of State’s opinion and that, as the Security Service’s assessments do not in themselves provide a factual basis, counsel for the Secretary of State should assist SIAC by formulating the allegations and then marshalling the material by reference to each allegation. What it was suggested counsel should do, however, is similar to what Miss Hemming did. She considered, by reference to criminal offences (in particular sections 57 and 58 of the Terrorism Act 2000), whether the material in the statements she considered came from sources which could be relied upon in a criminal prosecution. The statements identified the source and nature of the information, and in case of doubt, the supporting documents were available. I do not consider that what was said by SIAC puts into question the reasons given in E’s case

[2007] EWHC 233 (Admin)

at [259] to [264] for rejecting the submission that what Miss Hemming and her colleague did was insufficient and inadequate.

[100]I turn to the question whether the prospects of prosecuting the Respondent were kept under review during the currency of the control order. The only evidence put before the court by the Applicant is that in paragraph 9 of Miss Byrne’s statement. She says she is aware that “the Police ensure that the investigation of the Respondent’s conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect”. No particulars are given and there was no open or closed evidence before the court as to how this was done, what material was considered, or whether any material other than that available in January 2005 had been considered. Paragraph 8 of Miss Byrne’s statement says that when the Respondent’s control order was renewed in March 2006 consultation similar to that which occurred when the order was first made took place with the Metropolitan Police. The response is from Deputy Assistant Commissioner Peter Clarke in a letter dated 23 February 2006 to an official in Home Office’s Terrorism and Protection Unit. This states that the purpose of the letter is to confirm the police position in relation to the potential for prosecuting the Respondent. The letter continues:

“Based upon the evidence and intelligence which is currently available, I am satisfied that there is insufficient evidence to support a prosecution of this person for an offence relating to terrorism.”

[101]DAC Clarke’s letter does not indicate what material was considered and whether any material not previously considered had been, and gives no reasons for his conclusion. Since that letter was written, the government has accepted a recommendation by Lord Carlile QC that clear reasons be given in such letters. The Secretary of State is under a continuing duty to keep the decision to impose and maintain a control order under review: see MB’s case

[2006] 3 WLR 839

at [44]. Since it is inappropriate to make a control order if there is evidence that justifies the bringing of a criminal charge (see MB’s case at [53]), the Secretary of State’s duty includes keeping the matter of prosecution under review: see E’s case

[2007] EWHC Admin 233

at [281] to [284], and [286]. It is for the Secretary of State to demonstrate to the court that this has been done, and has been done in more than a perfunctory manner.

[102]Any confidence that a letter such as that written by DAC Clarke shows that all relevant material has been considered has, unfortunately, been put into question by what emerged in E’s case:

[2007] EWHC Admin 233

at [287] to [293]. In that case DAC Clarke wrote an almost identical letter, also dated 23 February 2006, to the same official in the Home Office’s Terrorism and Protection Unit. It is to be recalled that, in November 2005 and January 2006, before the renewal of the control order, the Home Office had received judgments of Belgian courts containing many references to E and to evidence in those proceedings identifying him with terrorist activity. DAC Clarke’s letter was relied on. There was no indication on either the Security Service files or the papers held by the Home Office that the Belgian judgments had been sent to the police or the CPS so that the prospects of prosecution could be reviewed in the light of them. No evidence was put before the court to show that the Belgian judgments had been question of prosecution was reviewed in the light of the Belgian judgments, either before the order was renewed or afterwards, and the national security witness believed that there had not been any such review.

[103]At CORG meetings Mr Jones asked questions, including those updating information relevant to prosecution. He said it was for the Police to respond and to raise matters updating the position about the potential for prosecution. The minutes of CORG meetings during 2006 do not state that there was any consideration of the prospects of prosecuting the Respondent in relation to terrorism-related offences. The present case is clearly different to E’s, in that neither the open nor the closed evidence contains anything indicating that material which might produce evidence concerning the Respondent has come to light since Miss Hemming’s visit to Thames House on 18 January 2005. In the light of what emerged in E’s case, it is surprising that the Applicant’s case remained so general and unparticularised at the commencement of the hearing of this case six weeks later.

[104]In view of my conclusion on Article 5 (see paragraphs [147] to [149] below), it is not necessary for me to decide whether, on the material before me, the decision to renew the control order is a flawed decision within section 3(10) of the PTA, and, if so, the consequences. Unlike E’s case there is no evidence showing that a potentially importance source of evidence has not been considered. But the proceedings are brought by the Applicant and it is for the Applicant to show that proper consideration has been given to this question. To leave the court in the dark about what material was considered, whether any new material was considered, and briefly what the reasons were for the conclusion that there remains no prospect of prosecution is unsatisfactory. 10 - The impact of the control order on the Respondent and his family

[105]Evidence about the impact of the restrictions on the Respondent, J and their children was given by Professor Robbins, Dr Jarman, and Renée Cohen, and in statements by the Respondent and J. Renée Cohen’s expertise is as a psychoanalytic psycho-therapist and social worker. I deal with her evidence in this section and with the psychiatric and psychological evidence in the next one.

[106]Weight to be given to the evidence of the Respondent and J: I am only able to give the account given by the Respondent and J in their statements about the impact of the obligations on them limited weight because neither was made available for cross-examination by the Applicant: see S v Secretary of State for the Home Department 27 July 2004 (SIAC) at [31], and Secretary of State for the Home Department v E

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, at [80] and [131]. Some of what is in their statements is contradicted or put into question by other evidence, in particular that given by Miss Byrne, who was cross-examined by Mr Friedman and Mr Singh.

[107]Both the Respondent and J refer to their two eldest daughters now staying with their grandmother in Jordan. They say this is a result of the effect of the restrictions in the control order on the family and them. J said that their daughters could not keep up with schoolwork because they could not use the internet at home. She said the children were embarrassed about the restrictions, such as their inability to have friends around because the friends’ parents were not allowed in without authorisation. Renée Cohen said J told her that the oldest daughter had been badly affected by the Respondent’s detention and then his release subject to the control order. Her schoolwork had deteriorated and she had become angry and argumentative and it was to see if living elsewhere would help that the family decided she should live with J’s mother.

[108]The Respondent says he is very lonely during the day because no one comes to visit and he is not able to go and see people. He says they cannot go on holiday as a family and cannot do any of the normal things families do together if it means applying for him to visit other people first or other people applying to visit them. He says that no one is willing to do this, presumably a reference to them furnishing the particulars to be authorised to visit the Respondent. He says that it is even lonely in the mosque because people are afraid of him and do not want to be associated with him for fear that something will happen to them as a result. J’s first statement also refers to this. The Respondent says that he likes to work, to be busy, and to help people but no one wants to have him to work with them if it means having to be checked by the police. During the period he was seeing Professor Robbins before he was detained in 2001 he was, however, not working and Professor Robbins recorded that he had few contacts.

[109]In her first statement J says that she was under a lot of pressure after her husband was released from Broadmoor. His behaviour was very unpredictable and she could not understand his moods and sometimes what he said. He found the noise of the children and from the street disturbing, and told the children to be quiet and to go upstairs which they found stressful. He was very anxious when she was out for longer than she said she would be. She said she found the curfew and the need to obtain authorisation for visitors the most difficult conditions. She found it embarrassing and humiliating to ask friends for their personal details and says that they would not want their details sent to the Home Office. She says that a friend she used to spend a lot of time with does not want to supply her details and that she did not see her at all after he was released, but saw her when he was on remand in HMP Brixton because he would not wear the tag. She also said that while he was in Charing Cross Hospital in May 2005 friends came to visit her and life had returned in a way to the way it was before his release.

[110]The Respondent says that his sleep and that of his wife and children is disturbed by the telephone calls he has to make in the middle of the night since the requirement to wear a tag was removed. In her first statement made before the Respondent’s obligation to wear a tag was removed, J said she was woken up by the noise he makes trying to phone the company or when staying up late to watch television. In her second statement made on 18 October 2006 she says that she and the children are woken up and get up every night and worry if he does not make the phone call on time. I have referred to the evidence given by Miss Byrne that the timing of the calls was, in the light of the observations of Ouseley J, agreed by the Respondent and the Home Office, and was designed to meet the Respondent’s health and religious requirements, in particular so that the early morning call did not interfere with his morning prayers.

[111]The Respondent states that on the day of his statement, 18 October 2006, it took him 20 minutes to get through to the monitoring company and that it regularly takes him that long to get through. The difficulties that have arisen appear to be caused by the voice verification procedure that the Respondent is required to go through. J’s second statement, made on the same day, states that the voice verification that her husband has to do takes twenty minutes. Miss Byrne said that those tagged were not generally required to go through the voice verification procedure.

[112]It is, however, clear that their accounts of the time regularly taken to complete the calls statements are untrue, as is the Respondent’s specific statement about the time taken on 18 October. Miss Byrne said that this matter had not previously been brought to the attention of the Home Office either by the Respondent’s solicitors or by the monitoring company and, in the light of what the Respondent and J said, she asked Serco, the monitoring company, to review the logs which are made of all calls for the period between June and December 2006.

[113]Miss Byrne described the process in making a call to the monitoring company and the voice verification procedure. The Respondent is required to dial a free-phone number from the dedicated phone in his house. All calls, save 999 calls, are barred from that phone. The connection is to an automatic answering system with five incoming lines. This takes the caller through a series of actions. The first is an eight-digit identification number. The next stage is that the caller is given four digits to repeat back. The caller is given two attempts to do this. If he is successful he is give a word to repeat back. If the voice recognition software recognises the voice the caller is told that the call is complete. If it does not the caller is automatically asked to ring back. If the caller fails on his second attempt, an operator is alerted and listens to what was said and compares it with the caller’s voiceprint. If as a result of that the operator is satisfied about the identity of the caller the call is marked as a successful call. If the operator is not satisfied, he or she rings the caller and asks him to try again. Where there is a pattern of missed calls the operating company alerts the police. Miss Byrne said the calls each take about three minutes and so, with five incoming lines, the system has capacity for about 100 calls an hour. Only eight other people apart from the Respondent are required to call the monitoring company in the period between 0445 and 0515 am; and nine other people are required to call between 0830 and 9.20 pm.

[114]The review by the monitoring company of the logs between June and December 2006 showed that in approximately one in three of his calls, the Respondent took more than three attempts to make a successful call and that the longest time taken by him to make a successful call was 13 minutes. Most of his calls were, however, completed within three minutes. Miss Byrne referred to three occasions on which it took the Respondent particularly long to make a successful call; on 7 September when it took nine attempts and thirteen minutes to get through, and on 30 September and 11 October he took 6 and six and a half minutes in seven and nine attempts respectively. The three longest times taken to make a successful call during this period were thirteen minutes, eleven minutes, and ten minutes. Serco reviewed the voice files and they show background noise on the line and suggest that the Respondent was perhaps speaking too close to the telephone. With respect to the Respondent’s statement that on 18 October 2006 it took him 20 minutes to get through to the monitoring company, Miss Byrne said the records showed that there were two calls on that day. The logs show that in both cases the Respondent made successful calls within one and a half minutes of initiating the call.

[115]The Respondent and J also refer to the impact of the prohibition on internet access in the residence. The Respondent refers to J being unable to do the homework on her childcare course because she cannot use the internet at home where she needs to be to help look after the children. J’s second statement says that it is difficult for her to keep up with her course because she is not allowed to use the internet at home and that it is difficult for her to study at College because she has children to look after. They both refer to their inability to have people at the house to break the Ramadan fast for the Ifta. He states that, while his curfew hours were amended during Ramadan to enable him to attend the evening prayer, the altered times meant he could not take his children to school and thus cannot spend time with them in the morning as he normally does.

[116]The Respondent says that he is unable to leave the house when he feels anxious at night to walk around as he used to do and feels trapped. He said he would like a break but when he applied to go to Ireland and to go to Haj, after a delay he was told that the Home Office could not guarantee that he would be allowed back into the country.

[117]He also said that the unannounced monthly police searches affect their lives. In her first statement J said that A, their eldest daughter, often woke up when the police came. In her second statement she said that the children were still very scared of the police and the regular searches of their possessions make the children feel as if they are accused of committing crimes. She also said her husband was only really able to cope with life if he is very busy and not trapped at home. The conditions had put a strain on the marriage and they got angry and frustrated with each other. Miss Byrne said that if the Respondent’s marriage broke up, the Home Office would consider the impact of that on the control order obligations in consultation with the Security Service and make a decision. She said that the Home Office was not aware that the marriage was in such a state that break up was imminent. Asked about the possibility of the Respondent living somewhere near the family rather than in the same residence, something Dr Jarman had mentioned when he saw him, Miss Byrne said the Home Office had not been told this was what the Respondent wanted. Miss Byrne said she was aware of the Respondent going to Fulham police station before Christmas 2006 and saying that he did not want to stay at home. She understood that he had an argument with his wife and left home at about 7.30 pm and was in breach of his curfew. She understood that he became emotional and produced a razor. The police obtained medical assistance and he was admitted to Charing Cross hospital. It was suggested to her that, following this incident, the Respondent’s police contact officer told him that he could leave his residence during curfew hours to get respite but subsequently retracted this. In her second statement Miss Byrne states that the officer denies this and states that he advised the Respondent to contact the Home Office if he was having any difficulties with the conditions of his control order.

[118]Miss Byrne was asked in the time taken to respond to the application dated 3 July 2006 that the Respondent’s obligations be relaxed or removed. She said it was regrettable no response was given until 8 September 2006 but that the application was sent to the Treasury Solicitors, who only forwarded it to the Home Office in early August. She said that the application had been made in the light of the judgment of Sullivan J in JJ and others and the Home Office then took counsel’s advice on the implications of that case.

[119]Renée Cohen’s evidence about the impact on the children states that one of the children told her of her worry that her father would not wake up in time to make the call so that the police would come to the house, and of the intrusiveness of the police searches. Another child said that it is a major embarrassment at school that they are unable complete homework tasks involving looking things up on the internet. J has not told the school about the Respondent’s position and so this put the children in a difficult position. Renée Cohen also states that the children have become increasingly socially isolated, and are clearly living with an extremely high level of anxiety and that in the long term this is likely to have a damaging impact on their mental health. She states that J has told her that the restrictions have placed an inordinate strain on her relationship with the Respondent, that the children’s relationships with him have also become strained, and there is a distance between him and his youngest son who was eighteen months old when he was detained under the 2001 Act. The difficulties the family would experience were anticipated in Mr Gorvett’s community care assessment in February 2005 and the care plan, and Professor Robbins stated that the restrictions were having a damaging effect on the family. 11 - The psychiatric and psychological evidence about the Respondent

[120]Diagnosis:Evidence was given by Professor Robbins and Dr Jarman. Professor Robbins has been treating the Respondent since March 1999 and Dr Jarman saw him on behalf of the Applicant in November 2006. The reports and letters referred to in paragraph [40] above show that the doctors who have examined the Respondent have found his to be a difficult case and there has been no agreement about his diagnosis. Some have said that he suffers from post-traumatic stress disorder (“PTSD”) and depression, some that he has a personality disorder, and some reports refer to the possibility of a psychotic illness.

[121]Professor Robbins’ diagnosis is that the Respondent has PTSD and depression, In April 2002, while the Respondent was detained in HMP Belmarsh, Dr Payne, a consultant psychiatrist at Broadmoor, stated he did not diagnose PTSD because of inconsistencies in the Respondent’s account and his histrionic behaviour. In July 2002, shortly before the Respondent was transferred to Broadmoor Special Hospital, Dr Cumming, head of health care at HMP Belmarsh, agreed with Professor Robbins’ diagnosis, but also referred to the possibility of a psychotic illness. In November 2002 Dr Payne informed the Home Office that he considered that the Respondent’s symptoms no longer amounted to a mental disease or disorder warranting his detention under the Mental Health Act and advising the Home Secretary to discharge him from Broadmoor. His diagnosis was of personality disorder. The Home Office commissioned a report from another psychiatrist, Dr Parrott, who was of the opinion that the Respondent was suffering from a schizo-affecive disorder and was appropriately placed in a psychiatric hospital. The Home Secretary preferred Dr Parrott’s opinion and did not discharge the Respondent from his detention in Broadmoor. In June 2003 Dr Parrot’s diagnosis was of a schizo-affective disorder or a mixed affective disorder and PTSD, and that of Dr Mahwood, also instructed by the Home Office, was of paranoid schizophrenia and PTSD. Dr El-Fadl, who saw The Respondent at Dr Payne’s request in October 2003, said he had recurring depressive symptoms, probably precipitated in reaction to stressful situations and coloured by his histrionic and dependent personality. The Mental Health Review Tribunal which considered The Respondent’s case in January 2004 (see paragraph [10] above) preferred Dr Parrot’s diagnosis to Dr Payne’s.

[122]In his evidence in these proceedings Professor Robbins said that the Respondent has a complex history and presentation. Initially he was unsure whether he was suffering from a psychotic disorder as well as PTSD, but by December 2001 he was fairly sure that he did not. His most recent report (19 October 2006) states that the Respondent is suffering from chronic PRTSD and a moderately severe depression. His mental state has undoubtedly improved since his time in Belmarsh but it remains fragile and his mood and mental state fluctuate markedly in response to events, especially those concerning the control order and over which he has no control. He has thoughts of self-harm, talks in a resigned and despairing way about his situation and his state of hopelessness and despair brings an increased risk of self-harm. Professor Robbins said that while he was optimistic about the prospects of treating the Respondent’s mental state, he had reservations because of the Respondent’s continuing traumas about his situation, and the achievability of his goals.

[123]Professor Robbins agreed that PTSD and personality disorder shared common features. Answering Mr Tam he said that he considered the Respondent has PTSD with elements of personality disorder, but he did not consider Dr Payne’s diagnosis of personality disorder with some PTSD symptoms unreasonable. Professor Robbins thought the difference might be that Dr Payne’s experience is with criminals whereas his was with people with trauma who may be criminal. Professor Robbins said the debate was not only about labels because the diagnosis affected treatment.

[124]Dr Jarman’s diagnosis is that the Respondent has a personality disorder. He said he did not find persuasive evidence of other diagnoses, and the Respondent’s clinical picture is not dissimilar to how it has been in the past, before his detention. His primary reason was similar to Dr Payne’s, that the diagnosis rested on the Respondent’s uncorroborated account of witnessing a boy killed by Israeli soldiers, and that the account varied, but Dr Jarman gave other reasons for doubting the diagnosis. The Respondent’s claims for avoidance of reminders of his claimed experience in the Middle East had to be set against his watching and listening to broadcasts about it. Secondly, the Respondent’s claims to have flashbacks were at best morbid ruminations. Dr Murray, a forensic psychiatrist who was asked to give an opinion about the Respondent’s refusal to eat and drink while in HMP Belmarsh, stated that he had reported these only on going to sleep or waking up which is not a characteristic of flashbacks.

[125]Asked about these matters, Professor Robbins said unreliability in relation to some of the detail of an account and evasiveness were not uncommon with those who had been political detainees Professor Robbins said the details are not important for the purposes of treatment. In the Respondent’s case he looked for and found a pattern of things, congruence between events described, and the emotions shown when describing them. When he first saw him, the Respondent displayed high levels of arousal and distress which was difficult to fake, and also showed some but brief dissociation; that is mental absence from the room. Professor Robbins considered that the Respondent was too chaotic and insufficiently trained to mislead him as to his PTSD. He described the Respondent as being very distressed in the aftermath of the London bombings, saying that he found it difficult to travel on the tube, and doing so without a jacket and bag. Professor Robbins said he felt the Respondent was sincere.

[126]The background and condition before the Respondent was detained:The evidence of the Respondent ’s background and condition before his detention was that his father and brother had psychological problems, and before he came to the United Kingdom he had been prescribed melloril in Pakistan. Dr Jarman said that melloril is used either for serious psychotic mental illnesses or to control agitation levels, but Professor Robbins said that, he couldn’t say that its use in Pakistan meant that the Respondent ’s problems were not trivial. He said in developing countries the choice of drug depends on what is available and on cost. Professor Robbins’ first report states that when seen in 1999 one of the Respondent ’s problems was that his aggression resulted in many of his friends becoming alienated. There are also references in the documents to reports by J that since she had known her husband, and in particular since the family had been in the UK, i.e. before his detention, he had angry outbursts in which he would shout, damage property, self-harm and tear his clothes, and to him spending time at home sitting in a darkened room. He left half way through Professor Robbins’ first assessment in July 1999, thereafter attended only sporadically and was discharged in December 2000. Professor Robbins said that non-compliance and ceasing treatment was common.

[127]Effect of detention:Professor Robbins said the Respondent’s detention exacerbated his mental health problems and he had been concerned as to whether he would recover. He referred to the Respondent’s loss of weight from 90 kilograms to 62.5 kilograms between December 2001 and 10 July. While Dr Jarman considered there was an element of manipulation in the Respondent’s conduct, he accepted this was a big drop in weight. Although in 2002 Professor Robbins thought the Respondent should be transferred to hospital he did not think that his condition justified compulsory admission to Broadmoor. To Professor Robbins’s surprise, however, the Respondent derived benefit from his time there. He trusted his psychiatrist, learned English, and became more settled. Dr Jarman did not dispute that the Respondent has an abnormal extreme reaction to stress but doubted whether his detention seriously aggravated his personality disorder. He said that people with personality disorders like his are more easily and more severely aggravated if put in any situation they consider provocative. He pointed to a report by Dr Dewsnap about an incident in a shop where after an argument about some milk, Mr Abu Rideh hit his head on the window and ran away and to the accounts of him tearing up clothes. Asked about Dr Payne’s report that in the twelve months before July 2003 there were 32 episodes of self-harm by the Respondent, 8 episodes which required seclusion, Dr Jarman said that people with personality disorders do this sort of thing.

[128]Effect of the control

[129]After his tag was removed, the Respondent ’s behaviour fluctuated. He sometimes showed increased hope, and was more relaxed but was sometimes angry, irritable and concerned at what he saw as an injustice to him. Professor Robbins said he wrote to Mrs Peirce on 14 February , 12 April and 12 June 2006 because of his concern about the Respondent ’s mental state, and the fact that he was becoming increasingly hopeless about the possibility of a resolution to his current state, and thinking he will be better off dead than going through years of this. The fact that he cannot leave the residence and walk when he is agitated in the evening has increased the pressure on family relationships. I have noted that affording him the ability to remove himself from stressful domestic situations by leaving the house was one of the factors which those who formulated the care plan for the Respondent prior to his release considered important: see paragraph [75] above. Professor Robbins was also concerned about the impact on the family, and said that the Respondent is afraid that J and the children would decide to move to Jordan permanently.

[130]Dr Jarman said that the Respondent is no worse and is arguably better now than he was before his detention. He, however, agreed that in the light of his personality, the obligations in the control order would handicap him in dealing with the other stresses on him, including getting away from the residence by walking during the curfew. Professor Robbins did not agree that the Respondent is no worse and is arguably better now than he was before his detention. The Respondent was not as histrionic and uncontrolled but he has an increasing sense of despair and hopelessness about which Professor Robbins was very concerned. Professor Robbins was worried about self-harm because the Respondent’s conversation moved to “passive” suicide, for example by being in the way of a truck and accidentally killed without violating the precepts of his religion. He would be worried if the Respondent left the family home because he would be almost completely isolated. Dr Jarman said that he did not consider there is a risk of a serious completed suicide attempt by the Respondent, but there is a larger risk of self-harm by cutting or other means if he lived alone.

[131]Manipulation: Professor Robbins agreed that in August 2000 he had written to Dr Dewsnap saying that the Respondent failed to attend an appointment, only appeared to attend when there is an issue to do with housing of some kind, and that, as he had helped him with his housing problems, he might not see the Respondent again. Professor Robbins said the letter was badly phrased. A couple of the sessions were dominated by Mr Abu Rideh’s housing problems and he was fairly jaded at the time, but that the housing issues were real issues and the Respondent was not being manipulative at the time.

[132]Dr Jarman said that the circumstances of the Respondent’s great loss of weight raised the question of manipulation by him because he had said that he would eat if he was moved from the health care centre in the prison to another location.

[133]Professor Robbins said of the Respondent’s claim that when he put a screw into his tag he could pick up the BBC that he could imagine a more capricious act and this was possibly an example of the Respondent behaving outrageously but it could potentially be psychotic. Asked whether this was manipulative behaviour Professor Robbins said that was one way of viewing the behaviour but it could also be a desperate attempt by the Respondent to show the degree of distress he was experiencing. He said that after his tag was removed the Respondent’s behaviour fluctuated.

[134]Findings: The majority of the doctors who have seen the Respondent since 1999 diagnosed him as having PTSD whereas Dr Payne and Dr Jarman only diagnose a personality disorder. I, however, accept Mr Tam’s submission that this difference in the medical opinions matters little for the purposes of this case. Professor Robbins considers that Dr Payne’s diagnosis of personality disorder with some PTSD symptoms is reasonable and accepts that some symptoms of the two conditions are similar. Professor Robbins said the difference of diagnosis was more than a labelling exercise because the treatment is different. However, both he and Dr Payne agreed with what was said in the care plan as to the Respondent’s treatment in the community and about conditions to which he might be subjected on release from Broadmoor. It thus appears that the diagnosis did not affect the medical view as to what conditions would be undesirable in the community for a person with the Respondent’s symptoms. It was common ground between Professor Robbins and Dr Jarman that the Respondent’s condition makes him vulnerable and that he has abnormal extreme reaction to stress.

[135]Dr Jarman appeared to doubt that the Respondent’s detention aggravated his condition but accepted that a person such as the Respondent was more easily aggravated if put in a situation they consider provocative. This is contrary to all the contemporary medical evidence, to SIAC’s judgments in his certification appeal and when considering bail, and to the implication from the need, as judged by the Home Secretary, to transfer him to Broadmoor. Although before his detention he displayed many of the reactions I have described, thereafter he displayed them in a more extreme form and more frequently. It is clear that the Respondent’s detention aggravated his condition.

[136]I turn to the evidence about the effect of the control order and the effect on the Respondent of removing or relaxing some of the obligations in it. Professor Robbins undoubtedly has had concerns throughout 2006. He considers there is an increased risk of self-harm. In terms of the effect of the restrictions in the control order, Professor Robbins is primarily concerned about the fact that the Respondent cannot leave the residence during the curfew hours. This is a problem which comes from the pressures on him of not being able to get away from domestic pressures. Other matters to which Professor Robbins refers, for instance the Respondent’s feeling that most people in his community do not want to have contact with him, are not new or the result of the control order. I have referred to Professor Robbins’ first report which states that when he saw the Respondent in 1999 one of his problems was that his aggression resulted in many of his friends becoming alienated and that he had few social contacts.

[137]In assessing the problems caused by individual restrictions, in particular not being able to get out during the curfew, on which see paragraphs [165] to [177], it is relevant to take into account the Respondent’s capacity for manipulative behaviour. It was agreed by Mr Husain that the Respondent’s history of self-harm, while partly to show extreme distress, was also in part manipulative. The Respondent’s capacity for manipulative behaviour, however, goes beyond that. Professor Robbins appeared to take this view of the Respondent’s attendance at his clinic in August 2000, a period during which he only appeared at the clinic sporadically, and only four months before he was discharged because he had not engaged with his therapy. I prefer Professor Robbins’ contemporary explanation in a letter written to a professional colleague to the explanation given at the hearing over six years later. The Respondent’s capacity for manipulative behaviour is also shown by what he said in his statement and has told others about the time taken to complete his telephone calls to the monitoring company. The evidence on this is summarised in paragraphs [111] to [114]. Although Professor Robbins appeared to regard the Respondent’s behaviour with the tag as a desperate attempt to show the degree of distress he was experiencing, he agreed that another way of viewing it was that it was manipulative behaviour, and that the Respondent’s behaviour improved after the tag was removed. If, as Mr Husain said of the Respondent’s outburst in court when he brandished something and asked whether he should kill himself, what he was brandishing was not a blade of any type, that behaviour may also have had a manipulative aspect. 12 - The justification for the individual obligations in the control order

[138]Section 3(11) of the PTA requires the Court to determine whether the Applicant’s decisions on the imposition of each of the individual obligations imposed by the control is flawed. Section 1(3) of the PTA only empowers the Applicant to impose obligations he considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorist activity. Accordingly, the Applicant must establish that the individual obligations in the control order were and remain necessary. The obligations are set out in paragraph [14] above. The Applicant’s justifications for the individual obligations are set out at paragraphs 29-39 of the Security Service's March 2005 submission in support of the control order and paragraphs 22-32 of the March 2006 submission in support of the renewal of the order. These deal with the specific obligations in groups.

[139]The first group concerns the curfew and the obligations to support it. It includes the obligations to reside at the specified address and remain within it between 7pm and 7am, to report to the monitoring company at the specified time, and to permit entry at any time by the Police and to representatives of the Secretary of State and the monitoring company inter alia to search the premises. Witness "I" said that, while these obligations cannot entirely prevent the Respondent from re-engaging in terrorism-related activities, they reduce his ability to do so without detection. Paragraph 22 of the renewal submission states that the less time that he is able to be outside the home and therefore able to re-engage in those activities, the greater the reduction in the risk which he poses. It also states that the fact that he is restricted to one location for particular periods makes his movements easier to monitor so that breach of any other obligation will be more easily detected.

[140]The prohibitions on pre-arranged meetings or gatherings other than group prayers, and on him permitting anyone other than the specified persons to enter his residence except with prior approval are considered necessary to restrict his capacity to contact associates who are themselves involved in the same or other terrorism-related activity. Such restrictions on his ability to contact them or share his expertise and contacts reduce the risk that he will involve himself again in those activities.

[141]The restriction to one fixed telephone line and the prohibition of internet use is in order to limit the Respondent's ability to communicate with extremist associates. The requirements that he only have one bank account and is prohibited from transferring money, documents and goods abroad reflect in particular his fundraising and facilitation activities described in the statements.

[142]The justifications for the particular restrictions placed on the Respondent recognise that they cannot entirely prevent him from engaging in terrorism-related activities, or seeing people who are of security concern, but state that they reduce his ability to do so without detection. The position here is as it was in E's case: see

[2007] EWHC 233 (Admin)

at [95]. It is not legitimate to argue that because, for example a twelve-hour curfew leaves sufficient time outside the house to permit terrorism-related activity, the Secretary of State's assessment that the twelve-hour curfew is necessary is flawed. In considering whether an obligation can be relaxed because any risk can be addressed in another way, account must also be taken of the resource implications of such relaxation. For example some forms of monitoring, in particular surveillance, have significant resource implications. The resource implications and the other demands on those resources are, as the Court of Appeal recognised in MB’s case, relevant considerations in the assessment of whether a particular obligation is necessary. 13 - Has the Respondent been subjected to treatment contrary to Article 3?

[143]Notwithstanding the Respondent's vulnerability and his abnormally extreme reaction to stress, the evidence before me does not cross the high threshold that is required for what is done to be “inhuman or degrading treatment” and thus a breach of Article 3. For it to so qualify it must be such as to be humiliating and debasing and possibly breaking his moral resistance.

[144]Professor Robbins’ concern, including his concern about what he described as the Respondent's increasing hopelessness about the possibility of a resolution to his current state, is primarily linked to the fact that the Respondent cannot leave the residence during curfew hours and cannot therefore relieve the pressures from domestic stresses during the curfew. This aspect of the Respondent’s situation, however, comes nowhere near the threshold set out in cases such as Pretty v United Kingdom

(2002) 35 EHRR 1

, at [52].

[145]Moreover, while the suffering which flows from a naturally occurring mental illness may be covered by Article 3 where it is, or risks being, exacerbated by treatment for which the authorities can be held responsible (Pretty v United Kingdom at [52]), for treatment to be “inhuman” or “degrading” the suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment: see V v United Kingdom

(1999) 30 EHRR 121

at [71]. The fact that the Respondent is not able to choose what he does has a greater effect on him than on others because of his abnormally extreme reaction to stress. The absence of choice to a greater or lesser degree, however, is an inevitable element of the control order regime.

[146]It is clear that the purpose of the restrictions in the control order is not to humiliate or debase the Respondent but to address the risk he is assessed to pose to national security. Miss Byrne’s evidence is that the Home Secretary was anxious to assure himself that the Respondent would have access to appropriate medical care when he was considering whether to subject him to a control order. That this concern continued during the currency of the control order is seen, for example, from the minutes of the CORG meeting on 10 May 2006 which state that “close attention should continue to be paid to Rideh’s access to appropriate medical assistance”. Although the fact that the purpose of the treatment is not to humiliate or debase does not conclusively rule out a finding of a violation of Article 3, it is a factor to be taken into account: see Raninen v Finland

(1998) 26 EHRR 563

at [55]. The Applicant’s knowledge that a care plan had been agreed before the Respondent was discharged from Broadmoor and the concern to pay “close attention” to his access to appropriate medical care is also important in this context. Unlike the mentally ill prisoner in Keenan v United Kingdom

[2001] 33 EHRR 913

, the Respondent is not in prison or deprived of access to appropriate medical attention. He was indeed receiving such treatment. 14 - Is there a breach to the Respondent’s right to liberty under Article 5?

[147]I have noted that with one exception the obligations to which the Respondent is subjected are the same as those to which E was subjected. I concluded in that case that the cumulative effect of the restrictions deprived E of his liberty in breach of Article 5. The judgment in that case considers the Strasbourg authorities and the judgments of Sullivan J and the Court of Appeal in JJ and others

[2006] EWHC 1623 (Admin)

, and EWCA Civ. 1141: see

[2007] EWHC 233 (Admin)

at [201] to [209], [211] to [216] and [226] to [242]. It is not necessary to do so again. It suffices to say that the basic distinction drawn between the deprivation of liberty and “mere restrictions on liberty of movement” in the Strasbourg jurisprudence means that there are coercive measures which substantially restrict the choice or freedom of an individual but which do not deprive that individual of liberty within the meaning of Article 5. Secondly, the duration of restrictions is relevant in the determination of whether there has been a deprivation of liberty but is not definitive and the objective of the restrictions is more important. So, the Strasbourg cases considered in JJ and others and in E's case show that a person can be subject to controls for over four years, as was the case in Ciancimino v Italy (1991) 70 D and R 103, without being held to being deprived of liberty. Thirdly, in JJ and others the Court of Appeal held that the cumulative effect of the restrictions had to be considered. It stated (at [19]) that where restrictions such as the ability to admit visitors, to communicate by mobile telephone, and to meet any person of one’s choosing are features of a regime at the heart of which is physical confinement, they are relevant in considering whether the restrictions cross the boundary between restriction on the freedom of movement and deprivation of liberty. Finally, in none of the Strasbourg cases considered did the authorities have any special power of entry during the curfew hours and the individuals subject to restrictions were entitled to have any visitors they wished save that in some cases they were prohibited from associating with criminals: see

[2007] EWHC 233 (Admin)

at [214 (4)] and [242]. For these reasons I have concluded that the cumulative effect of the restrictions imposed on the Respondent deprives him of his liberty in breach of Article 5.

[148]The one difference between the obligations to which the Respondent is subjected and those to which E was subjected (apart from the address of the residence) is that whereas E was required to wear a tag, the Respondent is required to make the two night-time telephone calls. This difference is, however, not relevant to the question whether the restrictions constitute a breach of Article 5. The tagging and telephoning obligations are both designed to ensure the curfew is strictly observed and the Strasbourg cases indicate that such requirements will not convert a restriction of movement resulting from a curfew into a deprivation of liberty: see

[2007] EWHC 233 (Admin)

at [206] to [209] and [235].

[149]I stated in E's case that some, albeit limited, account should be taken of the mental condition of the person subjected to restrictions in determining whether he or she has been deprived of liberty:

[2007] EWHC 233 (Admin)

at [230], [231] and [242]. I considered that this would only be so where a person's mental health affects the extent to which he or she is in fact socially isolated as a result of the restrictions imposed. Professor Robbins reports that one of the Respondent's problems in 1999 was that his aggression resulted in many of his friends becoming alienated, that he had few social contacts, and that he spent time at home sitting in a darkened room. It thus appears that, although the restrictions have had some effect on his social network, his mental health and his abnormally extreme reactions mean that he suffered from a degree of what may be called social isolation before he was subjected to any restrictions. For this reason I have not relied on the subjective effect on the Respondent of the restrictions for the purpose of considering whether cumulatively they have deprived him of his liberty. Additionally, notwithstanding his undoubted difficulties, it is evident that the Respondent goes to the mosque, takes his children to school, and sees people when he is outside the residence. 15 - Are the decisions of the Secretary of State to make, renew and maintain the Respondent's control order flawed?

[150]The control order clearly constitutes a significant interference with the private and family life of the Respondent, J, and their children. It also interferes with their Article 10 rights, although this was only pursued in respect of J and the children. It is not arguable that the prevention of terrorism is not a legitimate and weighty aim for the Applicant to pursue. The issue is whether, in the light of the national security case, the Applicant has established that the interference is proportionate to a legitimate aim.

[151]In the light of my conclusion on Article 5 this issue does not strictly fall for decision but it was fully argued, and I dealt with two aspects of it earlier in this judgment. In paragraphs [97] - [99] I concluded that there was no breach of the Applicant’s duty under section 8 of the PTA to consult about the possibility of prosecuting the Respondent for terrorist offences and paragraphs [100] - [104] deal with the question of whether the prospects of prosecution were kept under review during the currency of the control order. I now turn to the other grounds which it is submitted mean that the Applicant has not demonstrated that the interferences are proportionate.

[152]The Respondent’s mental health: The Respondent's mental health was taken into account by the Applicant at the time the control order was imposed and it appears that it has been considered throughout the period of the control order. Mr Husain, however, submitted that the Applicant's approach to the Respondent's mental health was fundamentally erroneous. He argued that his mental health was in fact taken only taken into account in the context of the national security evidence. He relied on paragraph 19 of the minutes of the meeting on 7 March 2005 (see paragraph [78] above) as suggesting that the Respondent's mental health was only considered in the context of his ability to engage in terrorist activity. He also relied on Mr Whalley's response dated 3 May 2005 to the request to review the decision to impose a control order on the Respondent. That states that the Home Secretary “has not seen any mental health assessment that indicates an inability to comply with control order obligations due to Mr Rideh's mental state”. Mr Husain submitted that this showed a fundamentally erroneous approach to the impact of Mr Rideh's mental condition.

[153]Miss Byrne’s evidence was that, at the time the control order was under consideration and at the meetings on 7 and 8 March 2005, the Applicant considered that, in the light of the national security case, the solution to the Respondent's mental health problems was to ensure that he had access to medical assistance which the control order obligations would permit him to obtain. I accept her evidence about this. It appears that this remained the way the matter was addressed during 2006. The minutes of CORG meetings record that the obligations were considered necessary and proportionate in the light of the security case. The minutes of the meeting on 10 May 2006 state that close attention should continue to be paid to the Respondent's access to appropriate medical assistance.

[154]While the Respondent's mental health was taken into account, and there was concern to ensure that his mental health requirements would be addressed by appropriate medical care, his mental health and the recommendations of those who set his care plan did not feed into the content of the obligations in the control order. The obligations imposed in March 2005 are, for all practical purposes, the same as those in the list of obligations set out in the pro forma in Annexe 2 to Lord Carlile’s first report on the PTA.

[155]Mr Whalley’s statement in his letter of 3 May 2005 that he had not seen any mental health assessment that indicated an inability to comply with control order obligations due to the Respondent’s mental state suggests that he had either not seen, or had not taken into account, the section 117 meeting which drew up the care plan in February 2005. One of the matters concerning any restrictions imposed upon the Respondent which was stated to be important by the medical professionals and others at that meeting was that the Respondent have the opportunity to remove himself from stressful domestic situations by leaving the house. The difficulties of accommodating this factor within a regime with a curfew at its heart are obvious. However, it is a matter in a mental health assessment indicating either an inability or a difficulty that the Respondent would have in dealing with an inherent feature of a curfew requirement. Mr Whalley’s letter does not refer to it. The consequence is that it is not clear whether the Applicant did not take into account the views of those at the section 117 review meeting in determining the content of the obligations, or, if he did, what his reasons were for concluding that notwithstanding the Respondent’s mental health it was not possible to accommodate this aspect of those views.

[156]The proportionality principle requires inter alia that the interference with a Convention right, here Article 8, is no more than is necessary to achieve the objective: see R (Daly) v Secretary of State for the Home Department [2001] 2 AC at 532 per Lord Steyn. It is for the Applicant, who is interfering with the Respondent’s Article 8 right, to establish that this “least intrusive alternative” sub-principle of proportionality has been met. The Applicant has not shown that he has grappled with the recommendation in the care plan that the Respondent should have the opportunity to remove himself from stressful domestic situations by leaving the house, either at the time the order was first made or subsequently, including in Miss Byrne’s evidence in these proceedings. In the language of Lord Steyn,on the material before it in this case, the court’s ability to assess the balance the Applicant has struck, or to ascertain the relative weight accorded to the competing factors, is impaired.

[157]The absence of any explanation by the Applicant as to why the recommendation made at the section 117 meeting could not be reflected in the individual obligations in the light of the assessed risk is an impediment to a finding that the Applicant has convincingly established the necessity of the individual restrictions. There may possibly be cases where, once it has been shown that the issue (here mental health and the need for appropriate treatment) has been taken into account, the position is so clear that the court can reach this conclusion. However, caution must be exercised in doing so. For example, the suggestion was canvassed (see paragraph [170] below) that the Respondent spend the time of his curfew in a residence near to but separate from the family residence. Whether or not this is a less intrusive alternative is initially a matter for the Applicant. The Applicant is the primary decision-maker and it is the Applicant who needs to address the matter appropriately in the first place. In R (X) v Chief Constable of the West Midlands

[2004] 1 WLR 1518

Wall J (as he then was) stated (at [101]) “It is not enough, in my view, for the decision maker simply to say that he has carried out a balancing exercise. He has to identify the factors he has weighed and explain why he has given weight to some and not to others. This is not an arcane or complex exercise.” That case involved a decision by a Chief Constable to provide a prospective employer with information about allegations of indecent exposure made against the claimant, a prospective employee. The approach identified by Wall J is equally applicable to this case.

[158]The fact that the recommendations at the section 117 meeting did not feed into the content of the obligations does not, of course, in itself render the Applicant's decision flawed. The national security case against the Respondent means the justification for subjecting him to a curfew (see paragraph [139]) is strong. In the light of this it might not be difficult to satisfy a court that his need to remove himself from stressful domestic situations could not be accommodated within a regime with a curfew at its heart. Alternatively, in the light of the evidence in this case, a court might conclude that, despite what was said at the section 117 meeting, this need in fact turned out not to be as strong as anticipated. It did not appear to be a concern after the replacement of the obligation to wear a tag with additional reporting obligations. The minutes of the CORG meeting on 10 May 2006 state that no applications for variations of the Respondent’s restrictions had been received since the replacement of the tagging obligation. The application on 3 July 2006, inter alia that the curfew requirement be reduced to night time hours only, does not refer to this need.

[159]The impact and effect on J and the children: The next issue concerning proportionality concerns the impact and effect of the control order on J and the children who are not suspected of terrorism-related activities. It has undoubtedly had a considerable impact on them. The evidence before me is that the children live with a high level of anxiety which in the long-term is likely to damage their mental health. The restrictions have placed a serious strain on J’s relationship with the Respondent and led to her increased social isolation. The inability to access the internet from the residence has caused difficulties with her College course and with the childrens’ schoolwork. The two eldest daughters are living with their grandmother in Jordan as a result of the effect of the restrictions in the control order on the family and in order to live normal lives.

[160]The Applicant has, however, concluded that, notwithstanding the weight of the compassionate factors concerning J and the children, the control order remains necessary. The court must decide whether the Applicant has struck the balance fairly between the competing interests of the rights of J and the children to respect for family and private life and the rights under

Article 10 of the Convention

, and those of the state and the public in the prevention or restriction of involvement in terrorism-related activity. Mr Singh recognised, as he did in E's case, that given the national security case against the Respondent, while the effect on the family has to be taken into account, it is a secondary factor. In the light of that national security case, which I have accepted, and the nature of the risk the Respondent is assessed to pose, the interests of the state and the public in preventing or restricting involvement in terrorism-related activity are particularly weighty. I have concluded that the weight of those interests is such that it justifies the serious interference with the rights of J and the children and that the decision to maintain the control order is not disproportionate on this ground.

[161]I have also concluded that Mr Singh's argument based on Article 3 in respect of the children must be rejected. This is not a case in which the evidence approaches the high threshold required to show a breach of Article 3 even in the case of children who are considered vulnerable.

[162]Fairness: It was submitted that common law and Convention fairness requirements mean that the Respondent should have afforded an opportunity to the Respondent and J to make representations before the decision to make the control order was taken. For the reasons given in E's case (

[2007] EWHC 233 (Admin)

at [299] and [300]) I reject this submission. The terms of the PTA show that Parliament intended to exclude any obligation to afford the individual an opportunity to make representations before the order is made.

[163]The position differs after the order has been made: see

[2007] EWHC 233 (Admin)

at [304] and [305]. It appears from the letter dated 20 December 2006 sent to the Respondent and from Miss Byrne's evidence that the Home Office now agrees that an opportunity to make representations should be given before the renewal of a control order. That opportunity, however, related to the control order that was made in March 2007. No similar invitation was made before the renewal of the order in March 2006. I do not, however, consider that in the particular circumstances of this case, the fact that no such invitation was made necessarily leads to the conclusion that the decision to maintain the control order is one that must be quashed. This is because the Applicant received much information from those representing the Respondent and his family throughout the period of the control order. In the light of that, while I do consider that they should have been afforded an opportunity to make representations when the renewal of the order was being considered, the fact that representations were frequently made both before renewal and thereafter, in particular in the letter dated 3 July 2006, has to be taken into account.

[164]The argument that where the opportunity to make representations would have made no difference, no public law remedy should be given, has now been generally discredited. That is, however, different to the suggestion that where over a prolonged period there is a steady exchange of views between two parties about the matter in hand, here the existence of the control order and the extent of its obligations, a failure specifically to invite further representations before its renewal necessarily means that the subsequent decision must be quashed. As in E's case it is, however, not necessary for me to decide this point.

[165]The necessity of the individual obligations in the control

[166]It was not put to witness “I” or Miss Byrne that any of the individual obligations bore no rational connection to the risk posed by the Respondent. Nor was witness “I” directly cross-examined as to the necessity of any of the individual obligations. However, underlying some of the questions to witnesses and submissions in both the open and closed hearings was the idea that the any risk posed by the Respondent was reduced because of his mental health, or that in view of his mental health his risk should be addressed by relaxing the obligations. For example, witness “I” was asked about the Respondent’s risk of absconding and said that although this had to be taken into account, the case for the curfew was not based on this. This was in the context of the Respondent’s inability to remove himself from stressful family situations during the curfew hours by going out. The necessity for the curfew, the night-time telephone calls, and the requirement that visitors and pre-arranged meetings be authorised had been raised in correspondence, notably the letter from Birnberg Peirce dated 3 July 2006. The reasons given in the Applicant’s letter dated 8 September for refusing the application for the removal or relaxation of individual obligations are summarised in paragraphs [82] to [84] above. Neither witness “I” nor Miss Byrne were questioned about the adequacy of the reasons given in that letter for refusing to remove or relax obligations.

[167]I have referred to closed evidence about breaches of the order. In the closed hearing, witness “I” was asked why the Respondent had not been cautioned or prosecuted for such breaches, and submissions were made about the implications of this for the proportionality of maintaining all the obligations. “I” was also asked why the Respondent could not be provided with a list of persons he is permitted to meet.

[168]Mr Husain and Mr Friedman submitted that, given the period during which the Respondent has been subject to either detention or a control order, the Secretary of State must consider relaxing the restrictions to which he is subjected. As I stated in E’s case (

[2007] EWHC 233 (Admin)

at [129]), the Secretary of State's duty to consider the necessity of the order includes a duty to consider whether any of the obligations can be relaxed in the light of the current circumstances, including the passage of time since the person was first subjected to detention and control. It is for the Applicant to show the obligations are necessary in the light of the contemporary evidence. I have referred to the absence of cross-examination as to the justifications for the individual obligations, and the absence of cross-examination of witness "I" and Miss Byrne as to the effectiveness or the practicability of particular relaxations, or the adequacy of the reasons given by the Applicant in the letter dated 8 September 2006. In view of this, and for the reasons given below, the evidential basis is insufficient for me to conclude that his continuing decision that all the obligations remain necessary is flawed.

[169]The relaxations that were canvassed included a shorter curfew or another provision enabling the Respondent to remove himself from the stress within the family home by going for a walk, as he had done prior to his detention in 2001, removing the need for the telephone calls between 8.30 and 9.20pm and 4.45 and 5.15am, and providing him with a list of persons he is permitted to meet.

[170]It was submitted on the Respondent’s behalf that removal of the curfew or a relaxation is needed because his mental health and personality means that he needs to be able to remove himself from stress within the residence. However, in view of the national security case against him and the strength of the justification for having a curfew, it does not follow that the only way of addressing this problem is by relaxing the curfew. An alternative, which would require consultation with the relevant authorities, including the relevant housing authority as well as the Police and the Security Service, would be for him to spend the time of the curfew in a residence near but separate from the residence of his family. This was not raised with witness “I”. It was raised with Miss Byrne in the context of a perceived need to prevent the breakdown of the Respondent’s marriage but the evidence before me gives no indication as to whether he would like such a change, and if so, whether it is practicable, and whether its disadvantages outweigh its advantages. The Respondent’s need to remove himself from the residence was explored with Dr Jarman and with Professor Robbins. Professor Robbins did not consider it was desirable for him to live alone.

[171]It was also argued that that the need to make the night-time telephone calls led to anxiety and lack of sleep which exacerbated the Respondent’s mental health and behavioural difficulties. The obligation to make these calls was a substitute for the tagging obligation. When considering the application to remove the requirement to wear a tag, Ouseley J stated there was a need to monitor the Respondent’s observance of the curfew. The evidence of breaches by the Respondent of control order restrictions, while not primarily in relation to the curfew, shows his assessment was correct and such monitoring is necessary. The required times were agreed. They were designed to coincide with the Respondent’s health needs, not to interfere with his religious obligations, and to minimise the disruption to his sleep, given that he has to be awake to fulfil those religious obligations. The Applicant’s witnesses were not questioned about this. They were also not questioned about the perceived inconsistency referred to by the Applicant in the letter of 9 September 2006 between the submission in the letter of 3 July 2006 that lack of sleep exacerbated the Respondent’s mental health and behavioural difficulties and the application in that letter for the removal of the curfew to enable the Respondent to attend prayers at 3 am.

[172]On the basis of the evidence about breaches of the control order, including closed evidence, the special advocates submitted that failure to prosecute or to caution the Respondent for these meant that the maintenance of the entire package of restrictions was disproportionate. Mr Blake Q.C. argued that failing to use the powers that exist in an open prosecution with attendant safeguards for procedural fairness undermines the case for maintaining restrictive conditions on secret evidence without such procedural protection for the individual affected. There is force in this submission. Although the statement in Secretary of State for the Home Department v MB

[2006] 3 WLR 839

at [53] that a control order is not appropriate and should not be used where there is evidence that justifies the bringing of a criminal charge was said about evidence of an offence relating to terrorism, the position must in principle be the same in relation to evidence of breach of control order restrictions. There may, however, be legitimate reasons on the facts of a particular case for not prosecuting.

[173]Mr Blake relied on the statement by Lord Bingham in A and others v Secretary of State for the Home Department

[2005] 2 AC 68

at [35] that " strictly enforced" the bail conditions of a detainee, G, which was similar to the Respondent's control order restrictions, " would effectively inhibit terrorist activity". Lord Bingham was not, however, considering the control order regime and it is not legitimate to infer from what he said that he considered a failure "strictly" to enforce restrictions necessarily means that disproportionate to continue to impose them. Mr Blake also relied on paragraph 59 of Lord Carlile's first report on the PTA. That paragraph, however, concerned the underlying terrorist offences rather than breaches of the control order and in any event only stated that continuing investigation "could" provide evidence for criminal prosecution.

[174]I do not accept the submission that, on the material before me, the decision to maintain all the restrictions is flawed by the reason of the failure to prosecute. The Applicant was entitled to ignore trivial breaches or breaches which are arguably the result of the Respondent's mental health problems. Moreover, although I have some concern about the failure to caution or otherwise warn the Respondent about his conduct since June 2005, the nature of the evidence of breaches and the time that evidence was obtained is such that the absence of prosecution to date does not render the decision to maintain all the obligations in the control order flawed.

[175]The special advocates also submitted that the fact that the package of individual restrictions imposed on the Respondent is fundamentally similar to those imposed on others formerly detained under the 2001 Act shows that those imposed on him are flawed. The reason given for this was that account should have been taken of the fact that the Respondent is a stateless person who cannot be removed and that his statelessness puts him in a unique position. This point was not taken by the Respondent's open advocates and in my judgment it is a bad one. The PTA's control order regime applies to citizens of the United Kingdom who cannot be deported. The erroneous statement in the justifications in the control order statements for the requirement that the Respondent notify the Home Office if he wishes to leave the United Kingdom, that he is a Jordanian, is unfortunate because it suggests some lack of care on the part of those preparing the statements. But the argument based on it is unfounded. In March 2005, when the control orders were imposed on the ten people then detained under the 2001 Act, it was not possible to deport any of them. Whatever the citizenship or immigration status of the controlled person, the length of time to which that person is subjected to a control order may require consideration to be given to the relaxation of conditions to which that person is subjected: see Secretary of State for the Home Department v E

[2007] EWHC 233 (Admin)

at [90] and [294-297].

[176]Finally, the special advocates submitted that it can be inferred that the obligations imposed on the Respondent are disproportionate or "flawed" because the obligations are more onerous than those in control orders against British citizens and because others whose association with the Respondent is relied on by the Applicant are not themselves subject to control orders. There is no evidential basis for this submission.

[177]Having concluded that this is not a case in which it can be said that the Secretary of State's decisions in relation to the necessity of the individual obligations is flawed, what of the future? It will remain important for The Secretary of State to demonstrate that careful consideration has been given to the continuing necessity of the individual obligations. the Respondent’s mental health and personality, as well as his capacity for manipulative behaviour and unreliability (see paragraph [137] above), mean that his is a particularly difficult case. The submissions made on his behalf in effect argue that, in the light of his mental health and personality, he should not be subjected to any restrictions because the stress of these or the fact that they prevent him from removing himself from other stressors, exacerbate his condition. While account must be given to his particular mental health problems, they do not trump the national security case against him. That national security case means that it is legitimate for him to be subjected to a control order with consequent restrictions. This also applies to the consideration of individual obligations. While mental health considerations are important and justify the court exercising particularly close scrutiny over the justification for a particular restriction, they need not override a clearly demonstrated justification for that restriction.

[178]The court considering a new control order over the Respondent or a renewal of the present one will need to be satisfied that careful consideration has been given to the continuing necessity of the individual obligations notwithstanding his mental health. It will be entitled to expect reasons for the conclusion that the individual obligations remain necessary and, where they are necessary that consideration has been given to meeting any mental health needs resulting from a particular restriction. These should include reasons for any conclusion that prior authorisation of all meetings outside the residence other than prayer meetings is required even when the meetings are to be only with people who have been authorised to visit the residence, and why an obligation requiring advance notification of the particulars of meetings would not suffice. Such consideration and the demonstration of such consideration is, in my judgment, part of the requirement that the Secretary of State assess carefully whether, particularly in view of the length of time the Respondent has been either detained or subject to a control order, the continuing risk he is assessed to pose might be adequately addressed by such relaxation. 16 - Conclusion

[179]Parliament, in passing the Prevention of Terrorism Act 2005, decided that the Secretary of State should not have power to make a control order that has the effect of depriving a person of his liberty in breach of

Article 5 of the Convention

. In my judgment, the cumulative effect of the control order made against the Respondent deprives him of his liberty. Accordingly, the Applicant had no power to make it, and (see JJ and others

[2006] 3 WLR 866

at [27]) the proper course is to quash the control order under the powers in section 3(12) (a) of the Act.

order

I turn to the second question, whether the Applicant has established that the control order was necessary and remains necessary. This involves consideration of the following matters. The first is the potential harm to the public (see PTA s. 2(2)(b)) that could result if the Respondent does in fact re-engage in terrorism related activity. The second is the Respondent’s capacity and willingness to do so. The third is the extent to which the potential harm can be adequately addressed without a control order. Section 1(4)(d) of the PTA makes it clear that “the public” includes the public outside the United Kingdom. order: Professor Robbins said the Respondent’s experience under the control order has built on his previous experiences and has had a negative effect in creating the sense of hopelessness and stopping him using the coping mechanisms he used before his detention – walking off when disturbed by the noise of his children. He also referred to the Respondent ’s feeling that most people in his community do not want to have contact with him. order: I have stated that it is for the Applicant to show that the individual obligations are necessary and the Applicant seeks to do so with the evidence justifying each obligation in the Control Order Statements (summarised in paragraphs [138] to [142] above) and given by witness “I”.The Court of Appeal in MB’s case stated (

[2006] 3 WLR 839

at [65]) that in considering the necessity of the individual obligations there is scope for “intense scrutiny”. The Court must, however, have material before it upon which to conduct such scrutiny. For example, it might be argued that if the obligations were relaxed the risk posed could be addressed in other ways. In order to assess this argument it is necessary to consider the effectiveness and practicability of the suggested alternative, and the adequacy of the reasons given for refusing to relax a particular obligation. This includes the resource implications which, as the Court of Appeal recognised in MB’s case, are a relevant consideration in the assessment of whether a particular obligation is necessary.

Secretary of State for the Home Department v Rideh [2007] EWHC 804 (Admin)

order

Cited in 3 later judgments