A v Secretary of State for the Home Department [2008] EWHC 1382 (Admin)

[2008] EWHC 1382 (Admin)Case No PTA/27/2008/PTA/14/2008/PTA/15/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
CONTROL ORDER
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23rd June 2008
Before
MR JUSTICE OUSELEY
Between
AAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Ms K Markus (instructed by Birnberg Pierce & Partners) for AppellantMr R Tam, QC (instructed by Treasury Solicitors) for RespondentMr M Khamisa, QC and Mr K Beale (instructed by Special Advocate Support Office of Treasury Solicitors)Hearing Hearing dates: 9 th and 10 th June 2008
JudgmentOuseley J :
[1]Abu Rideh has a long history of mental health problems: before his detention in Belmarsh under ATCSA 2001, during it when he was transferred to Broadmoor, and after his release to Control Order conditions. Abu Rideh has been the subject of Control Orders under the Prevention of Terrorism Act 2005 since March 2005, and of appeals under the PTA before now. Modifications to the Orders have reflected changes in the law and in the circumstances of Abu Rideh. The Control Order was renewed most recently in March 2008. The full appeal under s3.(10) against the renewed Order will be heard in the week commencing 21st July 2008. At that appeal, Abu Rideh will contest the merits of any Control Order being applied to him and the need for all or any of the various restrictions it contains. In the meantime, as he is entitled to do, he has sought modifications to some of the restrictions. The SSHD refused to make them. He appeals to this Court under s10.(3) against those refusals. The first appeals concerned the restriction on internet access which was affecting his children, and the times at which Abu Rideh had to report by his home telephone to the monitoring company and in person to the Police Station. However, those appeals were adjourned on 6th May 2008 because Abu Rideh had harmed himself when reporting to the Police Station on 1st May 2008, in a possible suicide attempt, and had been sectioned under section 3 of the Mental Health Act 1983 to a medium secure unit. 10th June 2008 was then a possible date for a review of his position because there was a Rule 29 hearing fixed in his main appeal.[2]The additional appeals now before me concern first what is said to be an important trigger for such acts of self harm, namely the obligation to report in person to a Police Station, and second the restrictions on visitors, particularly to his wife and children, without clearance from the Home Office. These modifications were sought on 18th May 2008, refused on 19th May 2008 and appealed against on 28th May 2008, at which time Birnberg Pierce says that the medical evidence upon which Abu Rideh relies was served on the SSHD.[3]As Ms Markus recognised on opening the appeals, there is something of an interim nature about them because all the issues will be fully ventilated in the context of the main appeal on 21st July 2008, which will hear evidence in greater detail about the overall justification for a Control Order and for these obligations. Although she relied on various points which will be made at the main appeal to support Abu Rideh’s contentions, she recognised that these appeals were much less well placed to deal with them because of the limited evidence available and being called.[4]Mr Tam QC for the SSHD objected to my relying on the medical evidence upon which Abu Rideh needs to rely if the modifications appeal of greatest importance to him, which concerns the requirement for reporting in person to a Police Station, is to have any prospects of success. This was because the SSHD was intending to obtain her own evidence but had not yet been able to do so, and had not known until last week that the 2 more recent appeals would be heard today. Ms Markus submitted that the SSHD had still had the opportunity to obtain medical evidence. The SSHD will have that evidence when the main appeals are heard in July.[5]It follows that I must be cautious about any conclusions which I reach on that state of the evidence; and that whatever conclusions I do reach can scarcely be regarded as persuasive by whoever hears the later appeals in relation to issues which that judge will be far better placed to decide. So any conclusions favourable to Abu Rideh on these appeals provide in reality no more than interim relief on incomplete evidence.[6]The first justification for hearing modifications appeals when the issues will be dealt with authoritatively in a few weeks time, with all the duplication and incompleteness which that entails, is that there is a short point that will not require any significant duplication or require to be re-examined on different and fuller evidence. The procedure is obviously intended to be able to provide quite a swift remedy. That is not the case here for any of the appeals. The second justification is that urgency requires what is in effect interim relief, without prejudice to the final outcome. That is the position here in part. Although Ms Markus fairly points out that, according to the medical evidence, all the modifications refused have an impact on Abu Rideh and on his family and that the impact on his family has a further impact on him, Abu Rideh’s medical evidence is really quite clear that the only really urgent matter of significance is the requirement of personal daily reporting to a Police Station. I accept that any alteration to that brings in the question of what replaces it if anything, and its timing.[7]As it is my view that a decision on the visitor and internet restrictions are not urgent matters of significance, I shall adjourn those appeals to the main renewal appeal, to avoid duplication, unnecessary chopping and changing in the terms of the Control Order, on what may turn out to be an incompletely considered basis. If Abu Rideh should be released from hospital but require assistance to enter his home because of his physical condition, then for the time being there are sufficient exceptions to the clearance requirement or cleared people to enable him to receive assistance, without any further broad exception of uncertain import at this stage. How that might be affected in the future will require a careful examination of all the evidence, which the main appeal will be far better placed to provide. His wife and children are not subject to restrictions while he is in hospital, and before he is released both his physical and mental health have to improve. The timescale for a sufficient improvement is unknown. It may or may not be close.[8]The internet restriction cannot in reality be lifted for the fairly short time until the main appeal is concluded without rather more investigation. And for the short time remaining of the term, the children will have to continue to manage school work with books, or any internet provision at school, friends or libraries.[9]Although I recognise that some of the points made by Ms Markus about the effect thus far on Abu Rideh of the Control Order and his willingness or ability to engage in terrorist activities may have some force, the extent to which they do can only really be assessed at a full hearing. I do not think it wise to embark upon some partial analysis of the continued justification for the Control Order. I shall therefore approach the two appeals which I am going to consider on the basis that there is a need for the Control Order. I have read the open and closed evidence and I am satisfied that that is the appropriate approach for the moment. By the same token, I am satisfied that I should approach the individual restrictions on the basis that, but for the peculiar features of Abu Rideh’s present circumstances, they are each necessary and that the decision to keep them in place is not flawed. It is therefore the impact of the present circumstances of Abu Rideh which requires to be considered against that background. It provides the only arguably urgent and significant feature which could warrant allowing those appeals at this stage.[10]The issue which requires urgent attention on the medical evidence, to which I shall come, is even narrower. The particular concern relates to the effect of personal reporting at the Police Station, and although telephone reporting can be problematic to Abu Rideh, its effect, on the evidence, is not at all so marked. Having regard to the state of the evidence about the continuing need for the Control Order and for the reporting requirements to cover the day time at a point between the early morning and evening reporting times, the issue in reality for the interim is whether the reporting to the Police Station should be replaced with a telephone call, which would have to be made from his residence.[11]I also have to remember that any alteration could make it more difficult for the judge at the main appeal to reimpose an obligation in the light of the difficulties which Abu Rideh appears to experience with changes and his preference for stability.[12]I turn now to the more recent history. It is to be noted that Abu Rideh is no longer tagged because of the psychological and self-harming reaction he had to it. On 6th July 2007, the Control Order was modified to vary the reporting requirements as follows: Abu Rideh had to telephone 3 times a day : between 04.45 and 05.15, between 14.30 and 15.30 and between 20.30 and 21.20. These times were intended to reflect prayer and medicated sleep times. He had to report to the Police Station between 09.30 and 10.30 daily. This was a reduction in the previous reporting requirements which included calls on first leaving and last returning to the residence. On 26th September 2007 Abu Rideh was arrested and detained in Belmarsh on charges of breaching his Control Order, but was released on 4th December 2007. He was now in a wheelchair as a result of a back injury he received in prison, with a prognosis of perhaps 3 months before he was mobile again. It is not clear that the full extent of his lack of mobility due to back injury is agreed. However, the personal reporting requirement was temporarily suspended, subject to monthly updates, so that he had to report by telephone instead.[13]In March 2008, the Control Order was renewed, after various representations from his solicitors had been considered. The reporting requirements were altered in the renewed Control Order so that telephone phone reporting was reduced to twice a day, between 06.15 and 06.45, and between 22.15 and 22.45. The reporting time at the Police Station was varied to between 14.00 and 15.00 daily. But that requirement remained in suspense because Abu Rideh was still in a wheelchair. Up to this stage no significant question had been raised about the effect on Abu Rideh’s mental state of such a reporting requirement.[14]However, on 29th April 2008 the reporting requirement was reinstated with effect from the previous day. There was some debate about why that had happened but the required updating report to the effect that Abu Rideh remained wheelchair bound was not produced on his behalf, and there may have been a misunderstanding by Abu Rideh’s solicitor as to the date at which that would mean the suspension ended. At all events, Abu Rideh reported to the Police Station as required on 30th April 2008, without incident, being helped there by a friend. But on 1st May 2008, when he reported there, he took an overdose of tablets and lacerated his arms. The drug overdose was treated in the High Dependency Unit of Charing Cross hospital and on the next day he was sectioned to a medium secure unit.[15]On 13th May 2008, when he realised unexpectedly that discharge was imminent, he became extremely agitated, according to his medical evidence, at the prospect of having to live under Control Order obligations on release. The next night, he tried to harm himself again but rang the alarm and was immediately attended to. He explained to one of the unit managers that he feared returning to live under the existing Control Order conditions again.[16]On 16th May 2008, he started to refuse food and drink although he sipped water with his medication. He was admitted to Accident and Emergency on 18th May 2008, because of concerns over the effect of his refusal to drink water on his kidneys, but he refused an intravenous drip, and was returned to the unit. His solicitor described him, after a visit on 20th May 2008, as mentally distressed, deteriorated in mental and physical health, and after a visit on 22nd May as “mentally chaotic”. Abu Rideh spoke daily to his solicitor who described his voice as slurred, monotonous and sounding very weak. Ms Pierce visited him on 29th May and described Abu Rideh as very weak, in despair and hopeless, and the next day as physically much weaker, slumped in his wheelchair, still refusing to take water and food, saying that he would die. It was his steadily worsening condition which led to the most recent application for modifications and to the urgency in the available date for the Rule 29 hearing being used to deal with the appeal.[17]He was again admitted to A&E on 4th June 2008 and was given an intravenous drip to rehydrate him which he has not removed, and the next day he started drinking small amounts. His mood had improved and he appeared more coherent. This regime has continued and he remains in that hospital.[18]Dr Deeley, a consultant psychiatrist at the Royal Bethlem Hospital, but not Abu Rideh’s treating psychiatrist, has provided 3 reports on his condition: 11th March, 5th May and 8th June 2008. I need only refer to the last. He described Abu Rideh as suffering a complex range of mental health and personality problems. He diagnosed Abu Rideh in March as suffering:
“from a recurrent depressive disorder, currently severe and associated with psychotic symptoms; severe symptoms of PTSD; and a mixed personality disorder.”
[19]The incidents of self-harm, and he thought that the overdose which led reportedly to unconsciousness was potentially life threatening, were underlined by threats of self harm including to set fire to himself at a Police Station. These incidents were not intended to harm anyone else. “Rather, it is best understood as a serious escalation of his previously observed pattern of engaging in self-harm as a maladaptive way of communicating distress in situations where he feels aggrieved and powerless. However, if enacted it would also likely result in serious injury or death.”[20]Dr Deeley said this of the Police Station reporting requirement. “ It is clear that Mr Abu Rideh finds attending the police station aversive. In my previous report I stated, In addition to PTSD symptoms, Mr Abu Rideh also presents with symptoms of generalised anxiety disorder. He also presents with anticipatory anxiety about the possibility of being re-arrested, and cognitive and physical symptoms of intense anxiety associated with thoughts of being compelled to sign on at the police station, which are of phobic intensity.” “Consequently, the obligation that he reports to the police station daily is likely to be associated with high levels of anger, anxiety, and distress. Under these conditions, as stated above, Mr Abu Rideh will almost certainly engage in serious acts of deliberate self-harm. Of all of Mr Abu Rideh’s conditions under his control order, the obligation that he attends the police station on a daily basis seems to be having the most deleterious effects on his mental health. In view of this, it is likely that a reduction or cessation of this obligation would be associated with significant reduction in the level of his mental distress and frequency and severity of his self-harming”[21]Dr Deeley however said of the telephone reporting that it had been a significant stressor, it exacerbated his anxiety, and further relaxation would reduce Abu Rideh’s mental distress. It is clear to me that this is much less of a problem for Abu Rideh’s mental health, and requires of itself no urgent changes.[22]Were Abu Rideh to be discharged from hospital with the current Control Order conditions in place, Dr Deeley’s report said that “it is highly likely (almost inevitable), that he will present with further significant self-harm, which may include enacting his threat of setting fire to himself.” There is no date known for his discharge but it could be quite close, although given his overall physical condition, I doubt that it is imminent. While the removal of the Control Order in its entirety was seen by Dr Deeley as likely to have the biggest positive effect on Abu Rideh’s mental state, that is not for decision at this stage. Dr Deeley saw the removal of the Police Station reporting condition as likely to have the next biggest positive effect, “given that he finds this requirement particularly distressing and aversive. Knowledge of any such modifications would likely result in an immediate improvement in his mental health, including while under section, because of the reduction in his state of anticipatory anxiety surrounding the prospects of leaving hospital to be confronted by re-imposition of the conditions of the Control Order.” This would increase the prospects that he could be discharged from section.[23]Dr Deeley then dealt with an issue that has arisen in the past over Abu Rideh’s behaviour and attitude towards another psychiatrist. Was he manipulating them? Certainly this was a view expressed in relation to certain actions of Abu Rideh by Beatson J in his judgment on an earlier modifications appeal in October 2007, EWHC 2237 ( Admin), at paragraphs 35-38. Mr Tam QC submitted that there was evidence that Abu Rideh had told untruths to Dr Deeley about the scale of difficulties he experienced in making reporting telephone calls. It is not necessary at this stage to reach a conclusion on that, though it is something I have to be aware of as a possibility at this stage. There may be quite a difficult line to judge between a genuine belief in something which is not objectively true, and manipulation. There could not really be much doubt about it in the matters relied on by Beatson J though.[24]I am not entirely persuaded that the concern expressed by Abu Rideh over arrest as a reason for his aversion to reporting in person to the Police Station can be taken at face value, given that he reported to the Police Station between July and September 2007, that he was arrested at his home without warning, not at the Police Station, for breaches of his Control Order, that he was released from Belmarsh with the temporary suspension of the requirement for physical reasons without the problem becoming manifest, that the dialogue over the restrictions in the renewed Control Order did not include objections to reporting to the Police Station as a matter of principle. He reported as required on 30th April 2008 and it was not until 1st May 2008 that any sign of problems manifested itself. I can see that the timing of the reimposition of the requirement may have come as a surprise and that he would have found it difficult to comply, but that is not the basis of the concern. It is a particular aversion to reporting at the Police Station at all. There is evidence, about which it is not necessary here to reach a conclusion, that he would welcome the lifting of a daytime reporting restriction for reasons unrelated to his mental health. But these are all matters which full argument and evidence at the main appeal will have to address.[25]Abu Rideh’s treating psychiatrist, Dr Djujic questioned in a report of 13th May 2008 whether if changes to the Control Order were made with hospital input, that might reinforce a belief that the doctors could influence such matters, which in turn would affect the way in which Abu Rideh behaved, including behaving in a way which would lead to further hospital admissions. Dr Deeley in reply in his third report said that these acts of self-harm were an ingrained maladaptive way of communicating distress and anger, where Abu Rideh felt aggrieved and powerless. Recent acts had placed himself at considerable risk and required hospital treatment. The single most effective way of reducing his mental distress would be to alter those conditions which engender the high levels of distress and maladaptive behaviours. He went through a number of factors which he thought told against Dr Djujic’s concern that that would reinforce his tendencies, as a means of influencing the SSHD. He thought it unlikely that the acts were driven by a rational thought process that he could thereby influence the SSHD because of the gravity of the risks which he was taking. He thought that unconscious links between his acts and “rewards”, reinforcing the pattern of behaviour, was also unlikely because Dr Deeley thought that the strength of Abu Rideh’s reaction related to the degree of distress which a particular condition engendered.[26]Mr Tam submitted that, although I can examine evidence which arises after the date of the SSHD’s decision refusing to modify the reporting restrictions, I remain governed by judicial review principles. The section 7 requirement that the Applicant think that there has been a change of circumstances is satisfied. The question is whether, on the material before me, the decision of the SSHD that the Police Station reporting obligation continues to be necessary for preventing or restricting involvement by Abu Rideh in terrorism-related activity is flawed.[27]I have already said that given the extent to which, on this urgent appeal, I can examine and rule on all the underlying evidence about Abu Rideh, I would approach this on the basis that not merely did the Control Order itself remain necessary but that it was only the particular circumstances of Abu Rideh now, in the light of the medical evidence, which could show that this otherwise necessary restriction was not necessary. I also take the view that, in the absence of a full and very careful examination of the evidence, it could not be concluded that Abu Rideh’s mental state would prevent him engaging in terrorism-related activities. In one sense therefore the question would have to be answered “No”, the decision is not flawed.[28]However, the issue cannot end there. In para 65 of its decision in SSHD v MB [2006] EWCA Civ 1140, [2007] QB 415, and not a passage disapproved by the House of Lords in the E, JJ, MB trilogy, the Court of Appeal held that there was scope for the Court to give intense scrutiny to the necessity for each of the obligations, and it must do so. Where an obligation was particularly onerous, the Court should explore alternative means of achieving the same result. In my view, an obligation can be particularly onerous for one person whereas another might find it quite light; the effect on an individual will be very relevant.[29]On the medical evidence before me, it is clear that Abu Rideh at the moment finds the Police Station reporting obligation particularly distressing. It is the major factor, the Control Order itself apart, behind his current poor mental state. It may be that the very fact of it could either keep him sectioned, or if released, sectioned again shortly afterwards because he was harming himself seriously, once more. This reporting restriction, as Mr Tam put it, was part of a package of reporting restrictions which helped to restrict his movements, how far he could go, and what he could do. A telephone call, made from his residence, would achieve most if not all of that same purpose, on the evidence so far as I can tell. I do not rule out that closer examination may show that to be wrong. For some that could be a greater burden because it would mean a return to the house to make the call, but that is not the point being made here.[30]I consider therefore that the decision of the SSHD to refuse the modification was flawed. I am aware that I have relied on medical evidence which the SSHD would wish to challenge; and in so doing I am not saying that it is the SSHD’s fault that she has not got her own evidence in place. Often, perhaps almost always, that would preclude any conclusion being reached at this stage. However, there appears to me to be both an urgency and gravity about the position of Abu Rideh, on what on its face is responsible medical evidence, which means that I should reach a view on it. Indeed, I think that I have no choice but to do so in view of the nature of the risk, the prospect that the obligation in the Control Order could in effect cause Abu Rideh to remain sectioned or cause him to be re-sectioned, and the availability of a reasonable alternative.[31]I do so on an interim basis. That means that wider issues which Ms Markus wished to raise have not been dealt with. I would remind all who read this that I have reached this decision without full evidence and analysis and what I have said is not intended to fetter what the judge hearing the main appeal decides. I have given careful thought to the problem which this decision could create for the judge however because it would mean that Abu Rideh could have his obligations increased through reinstatement of the reporting requirement, and the fact of its suspension could make that more problematic. I am aware of that possibility, but the nature of the evidence and the alternative obligation available persuades me that that is what I should direct at present. It also means that Abu Rideh must know and be made aware that the modification which I direct could come to an end after the main appeal has been heard. This decision contains no promise and creates no expectation for how the main appeal will be decided on this point. All is up for evidence and argument.[32]That extra telephone reporting requirement could be for the same window as for the Police Station reporting. But Abu Rideh seeks an adjustment to the two other call periods, albeit on the basis that he only wants to report by telephone twice daily. Mr Tam points out that there is at present an even spread between the reporting times of 06.15-06.45, 14.00-15.00 and 22.15-22.45. Ms Markus said that too much emphasis was put on that even spread and that it could be varied without losing its purpose. Abu Rideh wanted the first and last times changed so that he could make the first call between 03.00 and 04.00, and the last one between 20.30 and 21.30. This would then change in October 2008. The thinking was that the first set of prayers which he would like to wake for is at about 02.00, and the second at about 04.45. The 06.15-06.45 slot thus comes at time when he is trying to sleep. He likes to take his sleeping and other medication at 21.00-21.30, and so a call at 22.15-22.45 interferes with that pattern. So if an even, or roughly even, spread were to be maintained but those changes allowed for, the pattern would have to be 03.00-04.00, 12.00-13.00 and 20.00-21.00. It is not necessary to deal with how that would change in October 2008 with the changing prayer times. I can see no real drawback to making those changes and a significant advantage for Abu Rideh’s wellbeing since they would fit rather better with the medication and sleep pattern which Abu Rideh has been trying to establish in the secure unit, and wishes to have. I think that a refusal to change those hours is flawed in the light of the material before me including the impact, albeit lesser, which telephone reporting has and the comparative lack of advantage in the specific times, as opposed to the even spread, which the SSHD sees.[33]I accept that my powers are to direct that the Control Order be modified. First, I direct that clause 3.1 be modified by the addition of the words:
“This shall not apply until the judgment on the section 3(10) appeal against the renewed Control Order or earlier decision by the High Court in the course of that appeal in relation to this obligation.”
Second I direct that clause 2 be modified by the alteration of the times and the addition of the third reporting time as set out above, and subject to the same time limit. I adjourn the appeals in respect of the other obligations to the main appeal.[34]My thinking behind that formulation is to make clear the interim nature of the changes. I believe that the main appeal will give jurisdiction to enable further changes to be required. It also enables the Court on the appeal to give effect to any earlier decision it reaches in the appeal on these two matters, where the full and final decision may be some way off. However, I am willing to hear submissions from either party as to the form in which my intentions are effectuated.[35]There is no closed judgment.

Cited in 1 later judgment