AV & AU v Secretary of State for the Home Department [2008] EWHC 1895 (Admin)

[2008] EWHC 1895 (Admin)Case No PTA/21/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF PROCEEDINGS UNDER THE
PREVENTION OF TERRORISM ACT 2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2008
Before
MR JUSTICE MITTING
Between
AV and AUAppellantsSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr RAZA HUSSAIN (instructed by Tyndallwoods Solicitors in respect of AV and instructed by Birnberg Peirce & Partners in respect of AU) appeared for Appellant.MISS KATHERINE OLLEY (instructed by the Treasury Solicitor) appeared for Secretary of StateMISS CLARE BROWN (instructed by the Special Advocates’ Support Office in respect of AV) and MR MARTIN CHAMBERLAIN (instructed by the Special Advocates’ Support Office in respect of AU) appeared for Special Advocates.Hearing Hearing dates: 16th July 2008
JUDGMENTMR JUSTICE MITTING :Jurisdiction
[1]AV and AU were each served with a non-derogating control order on 4th April 2008. The order was made with the permission of the Court under Section 3(1)(a) of the Prevention of Terrorism Act 2005. In each case, the Court has given directions for a hearing pursuant to Section 3(2)(c) – in AV’s case, between 10th and 14th November 2008 and in AU’s case, between 9th and 15th December 2008. Meanwhile, each applied to the Secretary of State to modify certain of the obligations in the order. The Secretary of State agreed to some modifications, but not others. Each appeals under Section 10(3)(b) against her decision to refuse to modify such obligations. Neither AV nor AU asserted that any change in circumstances affecting the control order had occurred when they made their requests for modifications. The issue of principle in each case is whether or not they are entitled to appeal under Section 10(3) without first making that assertion.[2]Miss Olley, for the Secretary of State, contends that it is a precondition of an appeal under Section 10(3) that the controlled person must first consider that there has been a change of circumstances. Mr Hussain, for AV and AU submits that there is no such precondition. Their submissions require the statutory scheme to be considered.[3]When the Secretary of State seeks the permission of the Court to make a non-derogating control order under Section 3(1)(a), the Court’s options are those set out in subsection 3(2):
“a)…to consider whether the Secretary of State’s decision that there are grounds to make that order is obviously flawed… c) if it gives permission,…(to)...give directions for a hearing in relation to the order as soon as reasonably practicable after it is made.”
The Court is neither required nor empowered to review the detailed terms of the order. Subsection 3(7) provides that directions given under subsection 3(2)(c) “must include arrangements” for the controlled person to make representations about, “a) the directions already given; and b) the making of further directions.” There is no express statutory prohibition on the controlled person inviting the Court to consider the detailed obligations, but subsection 3(12) suggests that the Court cannot or should not entertain such an application under subsection 3(7), because it provides for the exercise of the power to give directions for the modification of the obligations imposed by a control order, “on a hearing in pursuance of directions under subsection 2(c)” – i.e. the full hearing ordered when permission is given to the Secretary of State to make the order. The statutory scheme under Section 3 is, in my view, clear: the Court’s powers at the permission stage are limited to refusing to give permission and, if permission is given, the giving of directions for a full hearing. The controlled person may make representations about directions for that hearing. Only after it has occurred can the Court give directions to the Secretary of State for the modification of obligations. There is no prior opportunity under Section 3 for the controlled person to raise with the Court modifications to the obligations or for the Court to rule upon them.[4]Section 7 provides:
“(1) If while a non-derogating control order is in force the controlled person considers that there has been a change of circumstances affecting the order, he may make an application to the Secretary of State for - … b) the modification of an obligation imposed by the order; and it shall be the duty of the Secretary of State to consider the application. (2) The Secretary of State may, at any time (whether or not in response to an application by the controlled person) - … b) relax or remove an obligation imposed by such an order.”
Section 7 does not prohibit the controlled person from applying to the Secretary of State for a modification unless he considers that circumstances have changed. It provides for two situations in which the Secretary of State can consider modifying obligations under a control[5]Subsection 10(3) provides, “(3) where an application is made by the controlled person to the Secretary of State for - … b) the modification of an obligation imposed by such an order, that person may appeal to the Court against any decision by the Secretary of State on the application” The right of appeal encompasses both the terms of a modification made and a refusal to make a modification. It is not confined by the statutory language only to those cases in which the Secretary of State refuses to make a modification for which the controlled person has applied under Section 7(1). Given the potentially significant effect of the order on the controlled person, express words would, in my view, be required to limit the right of appeal against a decision to refuse to modify to that circumstance only. b) the modification of an obligation imposed by such an order,[6]Further, the Court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998: subsection 11(2). If the refusal to modify arguably results in a breach of a Convention right, the controlled person is entitled to bring proceedings in the appropriate Court or Tribunal under section 7. Mr Hussain contends, and Miss Olley concedes, that judicial review would, in theory, be available to challenge the Secretary of State’s refusal to modify an obligation when no change in circumstances was said to have occurred; but such proceedings would have disadvantages not attendant upon an appeal under subsection (10)(3). The opportunity for the Court to receive closed evidence would be uncertain, yet without it, the Secretary of State’s concerns for national security could not be adequately considered. By contrast, all proceedings under the 2005 Act are governed by CPR Part 76 which, read down to accommodate Article 6 rights, provides a fair and adequate means of resolving all questions relating to control orders. If, therefore, the Court is the appropriate Court to deal with claims that Convention rights are infringed by the detailed terms of a control order, and it can do so without doing violence to the statutory language, it should. It can do so under subsection 10(3). It would not need to exercise that power before the full hearing under subsection 3(10), if that hearing occurred soon after the making of the order, but many steps need to be taken before such a hearing can take place, as is illustrated by the timetable in each of these cases. If there is no right of appeal under subsection 10(3), except when the controlled person considers that there has been a change of circumstances, obligations could be imposed for quite long periods which breached the controlled person’s Convention rights, in particular, his and his family’s rights under Article 8. He would have no opportunity to bring proceedings before the appropriate Court to challenge to imposition of such obligations. There is nothing in the statutory language or any other good reason which prevents the Court from discharging its function under Section 7 of the 1998 Act in such circumstances, before the full hearing.[7]Subsection 10(5)(b) sets strict limits on the function of the Court on an appeal against a refusal to modify an obligation: it is, “To determine whether the following decision of the Secretary of State was flawed - … (b) …his decision that the obligation continues to be necessary for (purposes connected with preventing or restricting involvement by the controlled person in terrorism related activity)… ” The Court’s powers are limited to giving directions to the Secretary of State for the modification of the obligations imposed: subsection 10(7)(c). The Court is required to give intense scrutiny for the necessity for each of the obligations imposed, while giving appropriate deference to the decisions taken by the Secretary of State as to the measures necessary to protect the public against the activities of a terrorist suspect: Secretary of State for the Home Department v MB [2007] QB 415 paragraph 64 and 65. Although the Court of Appeal was concerned with a ruling under subsection 3(10), its words in paragraph 65 are apt to include appeals relating to the obligations imposed by a control order under subsection 10(3):
“the exercise has something in common with the familiar one of fixing conditions of bail”
. Mr Hussain accepts that the task of the Court is as I have stated and that subsection 10(3) does not require or permit the Court to question the grounds for suspecting that an individual has been involved in terrorism-related activity or that it is necessary, for purposes connected with protecting the public from a risk of terrorism, to make the control order. He is right to make those concessions. (b) …his decision that the obligation continues to be necessary for (purposes connected with preventing or restricting involvement by the controlled person in terrorism related activity)… ”[8]In determining the issue under subsection 10(5)(b), the Court must apply the principles applicable on an application for judicial review: subsection 10(6). If, as will normally be the case, the obligations under scrutiny affect Convention rights, the applicable principle is proportionality: MB paragraph 63. AU[9]AU is a Libyan national. He arrived in the United Kingdom on 5th November 1994 and was granted indefinite leave to remain as a refugee on 3rd November 1999. On 21st November 2002, he was arrested under Section 41 of the Terrorism Act 2000 and on 23rd November 2002, detained under Section 21 of the Anti-Terrorism, Crime and Security Act 2001. On 8th March 2004 the Special Immigration Appeals Commission (SIAC) allowed his appeal against his detention under Section 21 on the basis that the Secretary of State had failed to establish a reasonable suspicion that he and his associates were linked to Al-Qaida (AQ). He was released from detention. On 3rd October 2005, he was detained under Section 3(5) of the Immigration Act 1971 pending deportation to Libya on the ground that it was conducive to the public good for reasons of national security. He appealed to SIAC. On 12th December 2005 he was charged with three terrorism related offences and detained. On 11th June 2007, he pleaded guilty to entering into or being concerned in an arrangement to make property available to another, knowing or having reasonable cause to suspect that it will or may be used for the purposes of terrorism, contrary to Section 17 of the Terrorism Act 2000. He was sentenced to three years nine months imprisonment. The custodial period expired on 27th October 2007 and he was released into immigration detention. On 13th November 2007, he was granted bail by SIAC. The conditions of bail included a sixteen hour curfew and a condition that he reside in an address in Hackney and not at his family home in Edgware. On 19th December 2007 the non-curfew hours for Monday to Thursday were split into two. Shortly before the Judgment of the Court of Appeal in the two lead Libyan SIAC cases, ASandDD [2008] EWCA Civ. 289, was handed down, a control order was made in his case and his SIAC bail order was discharged. The obligations imposed by the control order are, in one respect which are the subject of this appeal, more restrictive than those imposed by the SIAC bail[10]Mr Hussain submits that the Secretary of State must justify the longer curfew imposed by the control order by comparison with that imposed by SIAC bail orders on other Libyan appellants. The Secretary of State’s position is that she wishes to impose upon AU the longest curfew period compatible with his right not to be deprived of his liberty, because of his position in the LIFG and because he resumed activity after his release from detention on 18th March 2004. The reason for the difference in the curfew hours is, as Mr Hussain accepts, a change in the legal background against which each order was made. Soon after the SIAC Judgment in the lead Libyan cases of AS and DD was handed down on 27th April 2007, SIAC ordered the release on bail of all Libyan SIAC appellants, pending the (unsuccessful) appeal of the Secretary of State against the decision of SIAC to allow the appeals of AS and DD on the ground that is was not safe to return them to Libya. A curfew of twelve hours was imposed because that was thought to be the longest curfew which could safely be imposed without depriving an appellant of liberty, following the Judgment of Ouseley J in AF v Secretary of State for the Home Department on 30th March 2007 [2007] EWHC 651 (Admin). Longer curfews imposed on Libyan appellants who had been granted bail were also reduced to twelve hours. Ouseley J’s decision was reversed by the House of Lords in a decision handed down on 31st October 2007 (Secretary of State for the Home Department v MB & AF [2008] 1AC 440). That history provides sufficient explanation of the discrepancy in the length of the curfew by comparison with that imposed on other Libyan appellants; but it remains to be scrutinized under subsection 10(5)(b) on the individual facts of the case, to which I now turn.[11]AU is married to a British Citizen of Libyan origin, who first came to the United Kingdom in 1982, aged three. They have three children, aged eleven, eight and six. His wife is now four months pregnant. Since March 2003, their family home has been in Edgware. His wife’s mother lives alone in Acton. Until now, all three children have attended school in Acton. The oldest daughter will move to her secondary school in Mill Hill at the beginning of next term. AU, is pursuant to condition 2 of his control order, required to reside in a basement flat in Hackney. The family is entirely dependant on state benefits. His wife and children visit him at his flat and sometimes stay overnight in evidently cramped conditions. During school term, AU’s wife has had the sole burden of taking them to and from school: AU is not permitted to leave an area with its western edge in Shoreditch and Stoke Newington. Unsurprisingly, she speaks of the great and increasing strain that these circumstances are imposing upon her. It will clearly become unmanageable by the time that the oldest daughter begins to attend school in Mill Hill, by which time AU’s wife will be six months pregnant. The Secretary of State has been asked by AU’s representatives to find accommodation for AU in West London, nearer to the youngest childrens’ primary school. The Secretary of State does not assert that such relocation would necessarily be inconsistent with the need to protect the public from terrorism related activity by AU. I am satisfied that conscientious efforts have been made, so far unsuccessfully, to identify suitable accommodation. Mr Hussain accepts that, on an appeal under subsection 10(3), I have no power to give directions to the Secretary of State requiring her to locate suitable accommodation within or near to Acton. He is right to do so. Nevertheless, it is clear that the key to resolving this family’s difficulties is the finding of accommodation near to the school, accessible to AU’s family, before the new term begins. If such accommodation is found, AU will be able to play a substantial part, even while subject to a sixteen hour curfew, in the practical arrangements needed to sustain family life.[12]There are five challenges to the Secretary of State’s refusal to modify the obligations imposed by the control[13]I deal with the first three challenges for the immediate future only. If AU is relocated to or near Acton, the difficulties created by the restrictions will be substantially resolved. I am satisfied that the Secretary of State’s decision in relation to each of the three challenges is not flawed and that she has demonstrated that each restriction is necessary for purposes connected with preventing or restricting involvement by AU in terrorism related activity. Applying a structured proportionality test, the objective of restricting such activity on the part of AU is sufficiently important to justify maintaining the restrictions. They are rationally connected with the objective. They are no more than are necessary to accomplish the objective. On the premise, which Mr Hussain does not challenge for present purposes, that AU is a senior member of the LIFG and has in the relatively recent past resumed activity as such when at liberty, I regard a curfew of the maximum length which can lawfully be imposed without depriving him of liberty as reasonably necessary to restrict his activities and the risk that he poses to public security, despite the very great restrictions which it imposes upon his and his wife and children’s ability to enjoy family life. (I do not decide that the 16 hour curfew imposed on AU does not deprive him of liberty – merely that a control order including that term is not obviously flawed). For similar reasons, I do not regard the Secretary of State’s decision to continue to confine AU within his existing geographic boundary as flawed or disproportionate. In any event, the need to make school trips will cease during the school holidays. For the same reasons (position and activity within the LIFG), I am satisfied that the decision of the Secretary of State to uphold the prohibition on unapproved visitors and pre-arranged meetings outside his residence, is not flawed and is proportionate. These restrictions do not depend upon the location of his accommodation.[14]For the reasons stated, which are supported by those given in the closed Judgment, I reject this appeal. AV[15]AV is a Libyan national. He arrived in the United Kingdom on 15th September 2002. He was granted indefinite leave to remain as a refugee on 6th September 2004. He was detained on 3rd October 2005 under immigration powers and notice of intention to deport him on the grounds that it was conducive to the public good on the grounds of national security was served on him. He appealed to SIAC and was granted SIAC bail on stringent conditions. A police search of his property revealed extremist materials on his computer, including terrorist training manuals and recipes for explosives. He was arrested on 27th March 2006 and charged on 30th March 2006 with possession of property intending that it should be used or having reasonable cause to suspect that it may be used for the purposes of terrorism, contrary to Section 16 of the Terrorism Act 2000. He pleaded guilty to two offences and was sentenced to four years imprisonment. The custodial element expired on 1st April 2008. He was readmitted to SIAC bail on a sixteen hour curfew. The control order was served upon him three days later.[16]The principal ground upon which the control order was made in AV’s case is that he was and is a senior member of the LIFG. Further, on 7th February 2006, his name was added to the list of those identified by the United Nations 1263 Committee upon whom member states are obliged to implement an assets freeze and travel ban. In consequence, he has been designated in the United Kingdom under the Al-Qaida and Taliban (United Nations Measures) Order 2006.[17]On 2nd April 1999 AV married a woman of Palestinian extraction and Jordanian nationality. They lived together for about two years in Turkey and arrived together in the United Kingdom. They have three children, aged seven, five and three. They live at a rented house in Acock’s Green, Birmingham. His wife suffers from back pain, headaches and sleeplessness, for each of which she is prescribed medication. He asserts, though without the support of medical evidence, that shopping causes her to become exhausted. She has a hospital appointment on 13th January 2009 for an unspecified medical condition. He complains that much of the area from which he must not depart without permission is uncongenial to him and does not include that part of Sparkhill which is bounded by Warwick Road and Stratford Road – a triangular area of land adjoining Acock’s Green. He wishes to have access to it principally so that he can help his wife carry halal meat and groceries back from the shops which cluster there. He complains that the produce sold at the only halal shop within his boundary is both poor and expensive.[18]There are three live challenges to the Secretary of State’s refusal to modify the obligations imposed by the control[19]I apply the same proportionality tests as I have done in the case of AU. I am satisfied that the Secretary of State’s refusal to modify the curfew is not flawed, but is proportionate. On the premise which Mr Hussain does not challenge for present purposes, that AV is a senior member of the LIFG and is well placed to assist other members, I regard a curfew of the maximum length which can lawfully be imposed without depriving him of liberty as reasonably necessary to restrict his activities and the risk that he poses to public security. The restrictions imposed upon him are not, in their effect, as great as those imposed upon AU because he is residing at his family home with his family. For the same reasons, which are amplified in the closed Judgment, I am satisfied that the Secretary of State’s refusal to modify the geographical boundary, so as to permit him access to Sparkhill is also not flawed, but proportionate. I have considered a more limited modification, to permit him to accompany his wife to Sparkhill on two shopping trips per week, but, for reasons which are set out in the closed Judgment, am satisfied that the Secretary of State’s refusal to accept even this modification is not flawed and is proportionate. I am satisfied that it is also necessary and proportionate to forbid the presence of digital electronic data storage devices in his home, because of the uses to which they could be put. The order as currently drafted is modestly too wide; it includes electronic storage devices which are not digital, such as VHS tapes. The Secretary of State should consider (although I do not direct) amending paragraph 9.1c to add the word “digital” to the sub clause. Even if that is done, there will remain problems of definition. These can only be practicably resolved in the way that the Secretary of State suggests: by AV submitting a list of devices which he wishes to have in his home for her to decide upon.

order

in response to an application by a controlled person, he must consider an application to modify when the controlled person considers that there has been a change of circumstances under subsection 7(1); he may modify the obligations at any time, in response to an application by the controlled person, under subsection 7(2)(b). In either case, the Secretary of State will make a decision, to modify or not. b) the modification of an obligation imposed by the order; b) relax or remove an obligation imposed by such an order.” order: advance approval of visitors (other than a limited list of individuals including his wife and children and legal representatives) to his residence is required prior to the first visit by such an individual. The principal open ground upon which the control order was made is that AU was and is a senior member of the Libyan Islamic Fighting Group (LIFG), an organisation proscribed on 14th October 2005 under the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2005, which on 3rd November 2007 announced a formal merger with AQ. The Security Service’s open assessment is that AU resumed this activity following his release from detention on 18th March 2004 and quickly re-established himself as a prominent figure within the LIFG. He was described by Ouseley J in AS and DD as “a very significant LIFG figure in the UK”. In his sentencing remarks, McKay J stated that payments exceeding £20,000 a year had been made by AU and two others to islamist activists or their dependants who were interested in the wider islamic jihad and recommended his deportation. order: i) To reduce the curfew from sixteen hours to fourteen ii) To permit AU to drive twice daily from Hackney to the school in Acton and back iii) To permit AU to drive from Hackney to the Arabic Cultural School in Cricklewood and back on Saturdays iv) To permit visitors to visit his flat without prior approval v) To permit him to attend pre-arranged meetings with individuals or groups outside his residence. order: i) To reduce the curfew from sixteen hours to twelve ii) To allow him access to Sparkhill iii) To clarify the definition of “electronic data storage devices” in paragraph 9.1c of the order

Cited in 8 later judgments