Secretary of State for the Home Department v AP [2008] EWHC 2001 (Admin)

[2008] EWHC 2001 (Admin)Case No PTA/2/2008Case No PTA/7/2008Case No PTA/26/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 th August 2008
Before
MR JUSTICE KEITH
Between
Secretary of State for the Home DepartmentApplicantAPRespondent
Mr Robin Tam QC and Mr Steven Kovats (instructed by the Treasury Solicitor) for ApplicantMr Andrew Nicol QC and Mr Duran Seddon (instructed by Wilson & Co) for RespondentMr Neil Garnham QC and Mr Martin Chamberlain (instructed by the Special Advocates Support Office) appeared as special advocates for RespondentHearing Hearing dates: 7-11 and 14 July 2008
JUDGMENT

Introduction

[1]On 10 January 2008, Silber J gave permission for the Secretary of State for the Home Department to make a control order against the respondent, who he directed should be anonymised as AP. The control order was made later that day. This is the court’s open judgment following a hearing at which the court reviewed both the need for the control order itself and the obligations which it imposed on AP. The hearing also addressed AP’s appeals against the Secretary of State’s subsequent refusal to vary some of the obligations imposed on him, and against her subsequent modification of the obligations imposed on him without his consent. This open judgment deals with those appeals as well. All references to sections of an Act in this judgment are references to sections of the Prevention of Terrorism Act 2005 unless otherwise stated. There is a confidential annexe to this judgment which contains information which would have been included in it but for the fact that it would tend to identify AP.

The background facts

[2]AP’s early life. AP was born in Addis Ababa in Ethiopia on 16 May 1978. He is now 30 years old. He is the holder of an Ethiopian passport. His parents came from Christian families, and AP together with his four brothers and sisters were brought up as Christians. However, his parents separated in about 1985. AP is no longer in touch with his father, but following his parents’ separation, his mother converted to Islam because it would be less difficult for her to obtain a divorce. AP claims that her conversion was made easier by the fact that her own mother had, after the birth of AP’s mother, remarried a Muslim man. However, AP’s mother was not a practising Muslim, and according to AP she has only recently begun to practise Islam as a result of the problems which her family has encountered.[3]Following the separation and divorce of his parents, AP and his brothers and sisters lived with their father. He was a diplomat, and in 1987 he was posted to the Ethiopian embassy in Italy. AP and those of his brothers and sisters who were old enough to go to school went to a private Catholic school. However, political turmoil in Ethiopia resulted in AP’s father losing his post, and AP’s mother brought AP and his siblings to the UK where she claimed asylum. They arrived here on 19 December 1992 when AP was 14 years old. He went to a succession of Catholic schools, but did not do well there, and drifted into a life of drugs and petty crime. Eventually, he was sentenced to terms of detention in a young offender institution for offences of robbery and assault occasioning actual bodily harm.[4]AP was released from detention in November 1998. Shortly afterwards he met a British woman who was to become the mother of his son who was born in October 2000. Although they never lived together, their relationship continued until 2001. In the meantime, AP together with his mother and his brothers and sisters had been granted indefinite leave to remain in the UK. That was on 6 October 1999. That leave was given under an amnesty which was in operation at the time, and was granted without his mother’s claim for asylum having been considered on its merits. Following the grant of indefinite leave to remain, AP managed to get a job stacking shelves in Safeways, but he was dismissed in March 2001 for turning up to work under the influence of drugs.[5]AP’s conversion to Islam. It was at about this time that, according to AP, he first became interested in Islam. It started when his mother was fasting for Ramadan. He claims to have been in a state of shock at the time over the circumstances surrounding the birth of his son, which AP had found extremely traumatic. The child had been born two weeks prematurely, there were complications at the time of delivery, and his feet needed to be operated on. More out of a sense of suddenly appreciating everything which his mother had gone through than anything else, AP suggested that he fasted with her. That led to a friend suggesting that they break the fast together, and they went to his mosque in Ladbroke Grove. AP speaks of talking to the Imam there, of being given a copy of an English translation of the Koran, and of experiencing a sense of peace and tranquillity when he went there. After that, he would sometimes go to a mosque in Brixton. All of this coincided with his mother suggesting that he should visit Ethiopia and meet members of his family who were still there. AP claims that he decided to do that in order to get away from the temptations which confronted him in the UK. He was in Ethiopia for a couple of months in the middle of 2001. Apart from visiting his grandmother (his mother’s mother) in Wello, he spent all of his time in Addis Ababa with members of his family. They were devout Muslims who had been told by AP’s mother about the trouble AP had got in, and AP claims that they made a concerted effort to encourage him to change his lifestyle. It was during this trip that AP claims that he embraced Islam. It was for him the end of his life of drugs, casual sex and other aspects of popular culture.[6]Every year for the next few years AP visited his family in Ethiopia. He would be there for a few weeks or a few months at a time. On one of those trips, he met a teacher, who was a devout Muslim and a year or so younger than him, who he married in Addis Ababa in the summer of 2004. During those years, he claims that his interest in Islam developed. He was keen to learn what he could about Islam, and he read both religious texts and books about Islam. He continued to attend Friday prayers at the mosque in Brixton and went to a number of other mosques as well. He acknowledges that he read about jihad because jihad is part of Islam, but he claims that he read nothing which could be considered to be extremist or which invited people to terrorism. Indeed, his developing interest in Islam coincided with efforts he claims he began to make to improve himself. He obtained an A-level in Italian in the summer of 2003, and in the following academic year he took an access course in computing at the City of Westminster College. That paved the way for him to embark on a full-time 3 year foundation course in computing studies at South Bank University in September 2004. For reasons which will become apparent shortly, he was unable to continue with that course after the first year.[7]AP’s beliefs. AP claims to be a committed Muslim and considers himself obliged to continue to study and understand Islam for his faith to grow. He says that he follows the compulsory practices of Islam, such as observance of Ramadan, regular prayer, giving to charity, and the avoidance of things like intoxicants, non-halal food, self-abuse and extra-marital relations. He claims to deplore violence and the killing of innocent people – whether it be what he describes as “the massacres of thousands” at the hands of the US in Afghanistan or in the attacks which occurred in New York on 11 September 2001 and in London on 7 July 2005. He does not believe that the Koran preaches that violence is never justified in the face of oppression, but he believes that violence is rarely an effective tool for change, or so he claims.[8]This paragraph is contained in the confidential annexe[9]AP’s own links to extremists. One such extremist, so it is alleged, was Magan Hashielmi. His connection with AP stems from the fact that they were two of five men arrested on 19 October 2002 for an offence of causing grievous bodily harm arising out of what was claimed to be their eviction of squatters from a property in London SW9. Of the other three men who were arrested, AP admits that he subsequently discovered that two of them – Delroy Bowen (who AP knew as Bilal) and David Jetawo – had connections with Abu Hamza. AP claims that he was merely attending an Islamist social gathering at the property, and it is fair to say that he was quickly released without charge. Another such extremist was Ali Muhiddin, a friend of AP who was subsequently convicted of an offence related to terrorist training. And then there was Ramzi Mohammed. Like Hamdi, he was one of the would-be suicide bombers involved in the attacks which were planned to take place in London on 21 July 2005, and in July 2007 he was sentenced to life imprisonment as well. AP claims that he only got to know Ramzi Mohammed through football: Ramzi Mohammed used to play occasionally in football matches which AP used to play in regularly from 2003 at White City. AP claims that four of the people who he was eventually to travel to Somalia with – a trip which forms an important part of the Secretary of State’s case against him – used to play in those matches: Dawit Semeneh and Joseph Kebide would play regularly, and Nathan Oqubay and Zulgai Popal would play from time to time.[10]The trip to Cumbria. In 2004, a large group of young Muslim men spent the May Day Bank Holiday on a camping weekend in Cumbria. This trip also forms an important part of the Secretary of State’s case against AP, and it will be necessary to examine in some detail the evidence relating to it. For the time being, though, it is sufficient to state that the Secretary of State’s case is that• the camp was designed to prepare those attending it for jihad overseas• the camp was organised by Mohammed Hamid, who AP admits he met through Hamdi, and who was convicted in February 2008 of soliciting to murder and providing terrorist training (including training at camps similar to the one in Cumbria, even though the trip to Cumbria did not form part of the charges against him as the law which criminalises terrorist training had not been enacted by then) and sentenced to terms of imprisonment which meant that he would have to serve 7½ years in custody before he could be considered for parole• in addition to Hamdi and Ramzi Mohammed, two other men who were subsequently convicted of being among the would-be suicide bombers involved in the attacks which were planned to take place in London on 21 July 2005 and were sentenced to life imprisonment – Saeed Muktar Ibrahim and Yassin Omar – attended the camp• others attending the camp included Adel Yahya who pleaded guilty in November 2007 to collecting information useful to a person committing or preparing an act of terrorism (in respect of the attacks planned to take place on 21 July 2005) and was sentenced to 6 years’ and 9 months’ imprisonment, Dawit Semeneh and Joseph Kebide with whom AP travelled to Somalia, Mohammed Al Figari who was convicted in February 2008 of attending terrorist training (though not the camping weekend in Cumbria which AP went on) and possessing information likely to be useful to a terrorist and was sentenced to 4 years’ and 2 months’ imprisonment, and Mousa Brown who was tried for but acquitted of offences relating to terrorist training but who the Security Service nevertheless assesses to be an Islamist extremist.[11]For his part, AP does not dispute that a number of people on the trip were subsequently convicted of offences relating to terrorism, but he denies knowing who organised the trip, and he claims that the weekend was an entirely innocent opportunity for those who went on it to enjoy life in the open air in the countryside. AP admits that both before and after the trip he would sometimes go to Mohammed Hamid’s home for dinner on Friday evenings after prayers. There might be ten or more people there on those occasions, and he went there perhaps five times in all. Indeed, he admits that he saw five of those alleged to have taken part in the plan to mount attacks in London on 21 July 2005 there, though not all on the same occasion. The Secretary of State’s case is that these were not social occasions as AP claims, but that Mohammed Hamid took the opportunity to recruit and radicalise individuals into extremism.[12]The trip to Somalia. In May 2005, AP travelled to Somalia. He admits that the people he went there with were Dawit Semeneh and Joseph Kebide (both of whom were Ethiopian), Nathan Oqubay (who he understood to be a British citizen who had originally come from Eritrea, or so he thought), Zulgai Popal (who had originally come from Afghanistan), Hamdi Dualeh (who was a British citizen who had originally come from Somalia and who should not be confused with Hussain Osman who was also known as Hamdi) and Damian Benjamin (who was of West Indian origin). AP claims that this trip was for religious and spiritual reasons. The plan was to participate in the religious practice of dawah, which would have involved staying in various mosques in Mogadishu, where they would renew their faith and have time for contemplation and reflection, venturing out of the mosques only to remind the faithful of their obligations and encourage them to visit the mosque to pray. The Secretary of State does not accept that. Her case is that it is likely that the group went to Somalia to receive paramilitary and terrorist training from a small jihadist network which was believed to provide jihadist training to local jihadis and foreigners. Indeed, two of AP’s fellow travellers – Dawit Semeneh and Joseph Kebide – were subsequently excluded from the UK on national security grounds.[13]AP’s last trip to Ethiopia. AP claims that he had not been intending to remain in Somalia for longer than two months. He had therefore been intending to return to the UK by the end of July 2005 at the latest. The group had flown to Mogadishu via Dubai, and their return ticket to London from Dubai was open in the sense that it had to be used within 8 weeks. AP claims that as a result of incompetence on the part of the airline on which he was due to fly from Mogadishu to Dubai, he did not leave Mogadishu for Dubai until September 2005, and although he purchased a ticket from Dubai to London on Kuwaiti Airlines, he was not permitted to board the flight at Dubai until the British Embassy had confirmed his identity. Since he could not afford another ticket to London, he decided to fly instead to Addis Ababa to which there was a flight later that day. That would enable him to see his wife and his daughter who had been born shortly after his arrival in Somalia.[14]AP admits that he had heard about the events in London of 7 and 21 July 2005 while he had been in Somalia. He claims that he was told that the police officers investigating the events of 21 July 2005 had been looking for him. Although he claims that his reaction was to return to the UK immediately in order to clear his name and to start the second year of his foundation course, he was persuaded to stay in Ethiopia for the time being. As it turned out, he claims that he remained in Ethiopia for the next 15 months or so, leaving Addis Ababa only to make the occasional trip to Wello to see his grandmother. The full text of this paragraph is contained in the confidential annexe.[15]AP’s return to the UK. AP eventually decided to return to the UK in December 2006. However, he claims that at the airport in Addis Ababa he was stopped at the immigration desk and told that there was a warrant for his arrest. He claims that he was detained for 2 weeks, during which time he was not ill-treated in any way, but questioned by officers from what he thought were the Ethiopian security services about his background, his trip to Somalia and what he knew about the London bombings. He assumed that they had been liaising with the British Security Service. He was eventually released, and a week later he flew to the UK, arriving here on 27 December 2006. In the meantime, he had on 22 December 2006 been excluded from the UK, and it was later to be asserted on behalf of the Secretary of State that she considered AP’s past behaviour and associations to be such that his presence in the UK posed a significant threat to national security. He was accordingly detained on his arrival in the UK. On the following day, he was refused leave to enter the UK on the ground that his presence in the UK would not be conducive to the public good, and his indefinite leave to remain in the UK was cancelled. He was detained thereafter in immigration detention at Belmarsh Prison. While there he was arrested under the Terrorism Act 2000. That was on 5 January 2007, and he was questioned at Paddington Green Police Station. He was released without charge 4 days later, and returned to immigration detention.[16]On 11 January 2007, AP lodged a notice of appeal to the Special Immigration Appeals Commission (“SIAC”) against the decision to exclude him from the UK. On 16 March 2007, SIAC granted him bail subject to stringent conditions, though he was not released from Belmarsh Prison until July 2007 owing to the inability of the National Asylum Support Service to provide him with accommodation acceptable to the Secretary of State. When he was released, he was required to live at an address in Tottenham in North London, and was subject to a number of restrictions, including restrictions on who he was permitted to communicate with. He was still living there on 11 January 2008 when he was notified of the Secretary of State’s decision to grant him indefinite leave to remain in the UK once again, and the control order which had been made the previous day was served on him. The resurrection of his indefinite leave to remain in the UK resulted in the discontinuance of his appeal to SIAC.[17]AP’s obligations under the control order. The control order which the Secretary of State made against AP purported to be a non-derogating control order, i.e. it was one which imposed obligations on AP which were not incompatible with his right to liberty under Art. 5 of the Convention. But they were nevertheless very stringent. He was required to continue to live at the flat in Tottenham. He had to permit it to be searched at any time. He was subject to a curfew from 6.00 pm to 10.00 am, i.e. 16 hours a day. He had to wear an electronic monitoring tag at all times. He was not allowed to leave the local area (which had been delineated on the basis that all the services which AP might need would be within it and covered approximately 25 sq. kms). He had to report to the local police station every day. He had to telephone the monitoring company when he first left the flat at the end of a period of curfew, and when he last returned to it before a period of curfew. Only his mother and one of his brothers were permitted to visit him (save for his lawyers or various professionals in the event of an emergency or anyone required to be given access to the flat under the tenancy agreement for it or someone aged 16 or under), though he could request the Home Office to permit other named individuals to visit him. (He has never made such a request.) He could not arrange to meet anyone outside the flat apart from his mother and that brother (again save for his lawyers or various professionals in the event of an emergency or anyone required to be given access to the flat under the tenancy agreement for it or someone aged 16 or under), or attend any pre-arranged meetings or gatherings (unless they were connected with any work he was doing or with any course of study on which he was engaged or with his health or welfare), though he could request the Home Office to permit him to do so. (Again, he has never made such a request.) He was not permitted to communicate at all with Mogues Bezabih (who was assessed to be an associate of AP and was believed to hold extremist views). He was not to have access to the internet, though he was permitted to have a fixed telephone line in the flat and to use a mobile. The prohibition on his attendance at pre-arranged meetings and gatherings did not prevent him visiting a mosque of his choosing and taking part in prayers, though not leading them, but he could only visit one mosque for which prior approval had to be obtained from the Home Office. He could request the Home Office to permit him to visit another mosque instead, but he has never made such a request. There were other restrictions, but these were the principal ones.[18]These obligations were less onerous than the terms on which AP had been granted bail by SIAC in three respects. First, although the geographical limits of the local area beyond which AP was not permitted to go under the control order were the same as the boundary identified in the bail conditions imposed by SIAC, the control order permitted him to go beyond these limits to visit his solicitors and the local job centre. Secondly, he had not been permitted to use a mobile phone under the bail conditions imposed by SIAC, but the control order permitted him to. Thirdly, his curfew under the SIAC bail conditions had been from 6.00 pm to 11.45 am, i.e. 17¾ hours. On the other hand, there were two obligations under the control order which were more onerous than the terms on which AP had been granted bail by SIAC. First, the bail conditions imposed by SIAC had only prevented him from having pre-arranged meetings at his flat. Under the control order, he was not permitted to attend any pre-arranged meetings or gatherings outside his flat. Indeed, he was not allowed to meet anyone by arrangement. Secondly, the control order restricted him to visiting one mosque only, when under the SIAC bail conditions he could visit any number of them within the geographical limits of the area. The Secretary of State was requested to vary these two obligations. She declined to do so, and AP’s first appeal is against that refusal.[19]On 21 April 2008, AP was notified that he would be moved to a new address on 28 April outside London. On the day of the move, he was told the new address. The control order was modified to reflect that change. AP’s obligations under the modified control order were the same, save, of course, that the geographical limits of the local area beyond which he was not permitted to go had to be changed, though the area was roughly the same size as before. AP’s second appeal is against the modification of the control order which that move entailed.

The legal framework

[20]Two conditions have to be satisfied before the Secretary of State can make a non-derogating control order. First, the Secretary of State must have “reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity”: section 2(1)(a). Secondly, the Secretary of State must consider 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”: section 2(1)(b). Only those obligations which the Secretary of State considers are “necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity” may be imposed: section 1(3).[21]The function of the court is to review the Secretary of State’s decision on these issues and to determine whether any of them were “flawed”: section 3(10). In doing so, the court is required by section 3(11) to apply “the principles applicable on an application for judicial review”. Those provisions were construed by the Court of Appeal in Secretary of State for the Home Department v MB [2007] QB 415 at [46] to require the court to consider whether the decisions of the Secretary of State in relation to the control order are flawed at the time of the court’s determination. Moreover, in determining whether there are reasonable grounds for suspecting that the controlled person is or has been involved in terrorism-related activity as required by section 2(1)(a), the court must decide for itself, as a question of objective fact, whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the controlled person is or has been involved in terrorism-related activity: op. cit. at [60]. However, in deciding whether the Secretary of State considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order as required by section 2(1)(b), the court should recognise that the Secretary of State is better placed than it to decide the measures which are necessary to protect the public against the activities of someone suspected of terrorism-related activity, and will therefore accord a degree of deference to the Secretary of State’s assessment: op. cit. at [64]. That is not to say, however, that the court will not give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so: op. cit. at [65].[22]There is one other matter I should mention at this stage. This is a case on which the Secretary of State relies in part on material which she is unwilling to disclose on grounds of national security. That material was contained in files which AP and his legal team did not see and in evidence which was given in closed sessions in their absence. I had to decide whether any of the closed material needed to be disclosed to AP and his legal team if the hearing was to comply with AP’s right to a fair trial under Art. 6 of the Convention. I heard submissions in open session from Mr Andrew Nicol QC for AP and Mr Robin Tam QC for the Secretary of State about the appropriate test to apply, and I heard submissions in closed session from Mr Neil Garnham QC as special advocate for AP and Mr Tam on how the application of the appropriate test impacted on the closed material which I had considered. In the event, I decided at the conclusion of the evidence that a summary of particular aspects of the closed material had to be disclosed to AP and his legal team, and that if the Secretary of State decided not to do so on grounds of national security, she would no longer be permitted to rely on that material in these proceedings. On Friday 18 July I was informed that the Secretary of State did not propose to disclose this material to AP and his legal team, and I confirm that I have not taken it into account at all.

The Secretary of State’s suspicions

[23]The Secretary of State’s case is that she suspected on 10 January when the control order was made, and no doubt continues to suspect today, that AP has in the past been involved in terrorism-related activity, and that she had then, and presumably continues to have now, reasonable grounds for that suspicion. That suspicion is based on three core features of AP’s activities over the last few years –(i) his attendance at the camp in Cumbria which was assessed to be a terrorist training camp,(ii) his visit to Somalia to undergo paramilitary or terrorist training, and(iii) his connection with people associated with Islamist extremism. If there was any doubt, for example, whether the trip to Cumbria was anything more than an innocent outward bound weekend, or whether the trip to Somalia was anything other than a spiritual journey for AP to renew his commitment to Islam, or whether the extremist profiles of some of the people he had associated with was entirely fortuitous, the important thing was to view them all together. In that way, so it is argued, very real suspicions about AP’s involvement in terrorism-related activity arise. Having said that, it is also the Secretary of State’s case that each of these core features are suspicious in themselves, and accordingly it is to each of them that I now turn.

(i) The trip to Cumbria

[24]The genesis of the trip. AP claims that after becoming a Muslim, his opportunities for social interaction became much more limited than had previously been the case: dating, dancing and going to pubs and clubs were no longer acceptable activities. So when Hamdi suggested that AP should join him, his (Hamdi’s) 5 year old son and some of his (Hamdi’s) Muslim friends with their children on a camping weekend in the Lake District, AP agreed to go. According to Mousa Brown, the idea for the trip had been “put together” at Mohammed Hamid’s house. The bank holiday was being discussed, and Mohammed Hamid suggested camping in Cumbria. AP claims that he was not there on that occasion, and that he did not know whose idea the trip had been. Indeed, the organisation for the trip was minimal: an example of that, he says, was that they did not get to the campsite until late in the evening on the Friday (which would have been 30 April 2004), and they had to pitch their tents in the dark. Having said that, Mohammed Hamid is assessed by the Security Service to have organised this trip. His subsequent conviction relating to other training camps is some support for that, and even though there is no direct evidence (at any rate in open materials) of Mohammed Hamid having organised the trip, Mousa Brown accepts that most of the participants left from Mohammed Hamid’s house, and AP himself said that they “all met” outside Mohammed Hamid’s house. Indeed, AP also said that Mohammed Hamid took the lead in some things – for example suggesting what walk they should go on and telling people when to pack up – though there were others of whom that could be said.[25]What the weekend involved. AP claims that the trip involved normal camping activities: fell walking and trekking on the Saturday and Sunday, eating outdoors, playing cards and sleeping in tents. As they were all Muslims, they also prayed during the weekend. They lined up to pray in the usual Islamist way, some of them spontaneously taking the role of Imam and leading the prayers. After prayers, someone would sometimes address the group in the spirit of bayan, reminding them to behave respectfully and to observe Islamist “manners”. However, AP denies that there was any physical training, let alone any physical training designed to prepare those who went on the trip for terrorist activity, or any extremist discussions, or any attempt to radicalise or indoctrinate participants or recruit them for extremist causes. He points to the fact that he was with Hamdi’s son for the whole trip apart from a couple of hours when he chose a steeper path to the peak they were climbing. Mousa Brown said much the same thing.[26]The police observations. There are reasons to be sceptical about all that even if one puts to one side the profiles of many of the people who went on the trip. A police report dated 3 May 2004 (which would have been the Monday, the last day of the trip) said that about 15 people had been seen at the camp “dressed in what resembles combat fatigues”. A briefing note of the same day described them as “dressed identically in black outward-bound fatigue type clothing”. It went on to say that they appeared to be led by an instructor or leader, and the campsite was described as being in an “isolated” location. However, a more telling picture of some of the group’s activities comes from two statements made by serving police officers, admittedly over 2 years later:• The first statement is dated 10 May 2006. It related to what the officer had seen at about 9.00 am on the Sunday, i.e. on 2 May 2004. The officer was off-duty at the time and walking in the fells. He saw a group of about 10 tents some distance from a campsite which was open to the public, and a group of about 15-20 men in all in the vicinity of the tents. He heard the voice of what he thought was one of them shouting at the rest of them. He could not hear what was being said, but the officer formed the impression that the man was shouting instructions or orders, following which the group seemed to assemble as if they were getting ready to leave.• The second statement is dated 14 June 2006. It related to what that officer had seen on the morning of the Monday, i.e. on 3 May 2004. He had counted about 23 men, and he had seen the camp being “packed up”. Once that had been done, they had congregated at one end of a field, and one of them, who appeared to be the leader of the group, had spoken to them. This man had “gestured and controlled the movements of the group”, and the officer added that he could occasionally hear a shouted voice. I acknowledge, of course, that combat fatigues are an entirely appropriate form of clothing for an outward-bound weekend, and that with a large group of people, it is desirable for there to be someone in nominal charge to ensure, for example, that people are ready when the time comes to leave. But crucially the manner of the person who was identified as giving instructions to the group as well as the group’s reaction to those instructions was more appropriate to an occasion which called for discipline than a purely social event.[27]There are two other things which should be mentioned. First, the officer who made the statement of 10 May 2006 referred to a similar sighting four weeks later on Sunday 30 May 2004. That morning he saw a group of similar tents pitched in the same location as before, and nearby a group of 5-10 men dressed in dark clothing, most of whom appeared to him to be Asian and were in the same age bracket as the men he had seen four weeks earlier. He watched them for a few minutes, during which time he saw them doing forward rolls down the slope until they went out of his view, apparently under the command of one of their number who could have been giving them instructions. Certainly the officer heard someone shouting, but he could not see who that was. The officer also noticed that some of them appeared to be carrying sticks or branches in their hands as if they were practicing carrying a rifle.[28]It is important to emphasise that it is not part of the Secretary of State’s case that AP went on this later camping trip to Cumbria. But the location of the tents and the fact that the group consisted of men who were mainly Asian and in the same age bracket as the earlier group raises the possibility at least that this was another camping trip of the same kind which AP went on.What the officer saw on this second occasion is more suggestive of military manoeuvres than an outdoor activity weekend.[29]Secondly, the officer who made the statement of 14 June 2006 also described something which happened later that morning. He saw about 10 of the group heading towards a hut heavily laden with rucksacks and bags. After they got to the hut, they went into the woods and disappeared from view. More than quarter of an hour later, the officer saw them again walking towards the hut, and again disappearing from view. This time, though, they were strung out as the route was quite arduous, and some of them appeared to be struggling. AP thinks that what the officer saw (indeed, he says that he has seen footage of the incident on television) was some members of the group being “punished” for being late in getting their possessions together and for having been caught smoking on the trip. The punishment consisted of them having to run up and down the slope with their rucksacks on their back. It was, he says, no more than a “light-hearted reprimand” which lasted less than five minutes and involved them running no further than the distance of half a football pitch and back while the rest of the group were laughing and joking. This version does not tally with the length of time during which the officer said this was going on, and if there had been obvious general merriment on the part of the other members of the group, the officer is unlikely not to have seen that. Anyone would, I think, be entitled to be sceptical about AP’s version of this incident – especially as Mousa Brown claims to have had no recollection of the incident, though he suggests that that may have been because he had already left the site by then.[30]There are some legitimate comments which can be made on behalf of AP about the statements of these two police officers. For example, AP disputes the description of the camp as being isolated. He claims that it could be seen by passers-by and cars travelling on the nearby public road. The tents were pitched high up (to avoid flooding, so AP claims) and could be seen for miles around. Again, neither of the officers referred to the children who both AP and Mousa Brown claim were on the trip, and although some of the people who were there were subsequently proved to have links with some form of terrorism-related activity, many of the people who were there were not. At least one mistake is said to have crept into the statement of the officer who observed the group on the Sunday. He described the group he saw as including one white man and one black man. AP claims that there was no white man there, and more than one black man there. Finally, one of the officers who interviewed AP at Paddington Green Police Station did not regard the trip to Cumbria which AP went on as sinister. The transcript of the interview records the following exchange:
“This man, Mohammed Hamid has, well, he’s currently in prison. He’s been charged as the main ringleader of running terrorist training camps. That’s why he’s in prison and there’s a lot of evidence. Not about what you’ve done with him, I’m not talking about the camping trip that you went on [AP] Okay. I’m talking about other camping trips that he has organised and run that were run in a military style fashion, yeah.”
[31]Some of these points are more telling than others, but I do not regard what the officer who interviewed AP at Paddington Green Police Station said to him as significant. The officer may simply have been encouraging AP to think that there was not thought to be anything sinister about the trip he had gone on so that he might be more inclined to say incriminating things about other camping trips which Mohammed Hamid had organised. Alternatively, he may simply have been acknowledging that at the time of AP’s trip to Cumbria, the law did not criminalise terrorist training. But none of these points really undermine the features of what the two officers saw which were more consistent with the trip being the occasion for physical manoeuvres in a disciplined environment than a purely social outing. I acknowledge, of course, that a trip to the Lake District by a group of friends over a bank holiday to enjoy life in the open air would not in normal circumstances be regarded as unusual, but there was enough in what the officers claimed they saw to raise the possibility that the trip was not as innocent as AP claims.[32]The other campers. The trip becomes all the more suspicious when one factors into the equation the profiles of many of the people who AP admits were on it. They included:• Mohammed Hamid who (if he did not organise the trip) at least suggested it, and has subsequently been convicted of providing terrorist training at other camps• Hamdi, Ramzi Mohammed, Saeed Muktar Ibrahim and Yassin Omar, who were subsequently convicted of being among the would-be suicide bombers involved in the attacks which were planned to take place in London on 21 July 2005• Adel Yahya who was subsequently convicted of collecting information useful to a person committing or preparing an act of terrorism, namely the attacks planned for 21 July 2005• Mohammed Al Figari who was subsequently convicted of attending terrorist training and possessing information likely to be useful to a terrorist. In addition, there were people who the Security Service assesses to be Islamist extremists – namely Dawit Semeneh and Joseph Kebide who were subsequently excluded from the UK on national security grounds, and Mousa Brown who was admittedly acquitted of offences relating to terrorist training. Even if one ignores Dawit Semeneh and Joseph Kebide because the basis of the assessment of them has not been vouchsafed in open evidence, and Mousa Brown because of his acquittal, the fact that seven of the people who went on the trip to Cumbria have been convicted of terrorist offences puts the trip into a completely different light. The notion that none of them talked – at least in AP’s hearing – in a way which showed that they held extremist views is unlikely. AP claims that he had not previously met Saeed Muktar Ibrahim, Yassin Omar or Adel Yahya, but he acknowledges that he had, or may have, met the others, and in any event whether he had met them or not before does not change the character or nature of the trip. The fact of the matter is that whether or not the weekend was the occasion for actually preparing people physically for terrorist activities, it was the occasion for people whose subsequent convictions were consistent only with them holding extremist views to engage the interest of others in their cause in circumstances in which a sense of kinship and bonding was likely to be engendered.[33]The Friday evening meetings. Related to the trip to Cumbria are the meetings which took place over dinner at Mohammed Hamid’s home on Friday evenings. AP acknowledged when he was interviewed at Paddington Green Police Station that he had received a number of text messages from Mohammed Hamid, at the same time as Mohammed Hamid had been sending text messages to other people subsequently convicted of terrorist-related offences. However, he claimed that he and Mohammed Hamid were friends who had simply exchanged mobile phone numbers, and Mohammed Hamid’s practice was to send a “round robin” message to his many friends inviting them all to dinner.[34]Once again, regular visits to the home of a friend who was generous with his hospitality and whose get-togethers proved to be what AP has described as “fun … good natured affair[s]” would not be particularly unusual, given what AP has said about the place of hospitality in Muslim culture. But the facts that the friend was himself subsequently convicted of terrorism-related offences and that his guests included many people who were also subsequently convicted of very grave offences of terrorism put the meetings in a very different light. AP’s denial (and that of Mousa Brown, for that matter, who also went to these meetings) that there was any extremist talk or any attempts to radicalise or indoctrinate the people who were there sounds a little hollow, when extremism was something which happened to link so many of Mohammed Hamid’s guests as well as Mohammed Hamid himself. It is a bit like going to a school reunion and not talking about one’s schooldays.[35]In the interests of completeness, I should mention that I have not overlooked the suggestion that when AP was interviewed at Paddington Green Police Station he may have attempted to distance himself from Mohammed Hamid by initially pretending not to recognise him from a photograph of him which he was shown, and when he was shown a better photograph of him by acknowledging only that it might be him. I do not regard either of these points as significant. The first photograph he was shown was acknowledged by the officer questioning him to be not as good as the second one, and the officer later said in the interview that he was not suggesting that AP had lied about not having recognised Mohammed Hamid from the first photograph. The answer he gave when shown the second photograph may have had a hint of evasiveness about it, but that is a common reaction of people when questioned, and does not necessarily signify that they have something to hide. But for the reasons I have already given, I think that AP’s presence at the camp in Cumbria and his not infrequent visits to Mohammed Hamid’s home for dinner in the company of known terrorists are capable of raising justifiable concerns about AP’s involvement in terrorism-related activities. (ii). The visit to Somalia[36]The background to the visit. The religious practice known as dawah has a breadth of meanings, but AP claims that for him it meant responding to the call of Islam by strengthening his own faith and by encouraging other Muslims to become more observant. One of the traditional forms of dawah is the missionary work of the Tabligh Jamaat, which encourages participants to practice dawah overseas, by staying in local mosques, studying Islam, engaging in self-reflection and self-growth, and reminding the faithful of their religious obligations.[37]AP claims that he first came into contact with people who had performed dawah during his first visit to Ethiopia in 2001. The idea interested him, but he did nothing about it until 2004 when he volunteered to do dawah for three days following a particularly inspiring sermon at a mosque in Stockwell. He says that there were too many demands on his time at that stage in his life to do what he had volunteered to do, but when Dawit Semeneh told him that he, Dawit, was going abroad with a group of friends to perform dawah, and invited him to join them, AP agreed to do so. He had visited the Merkaz Centre, which was the London base for the Tabligh Jamaat, and which he had found impressive and inspiring. He was looking for an opportunity to get away from the strains and stresses of everyday life and to focus on his religion. Dawah offered him the chance to leave worldly pursuits for a while and to enjoy the seclusion which he needed.[38]Moreover, the timing was right. On 8 April 2005 he had returned from Ethiopia where he had spent a few weeks with his wife in the latter stages of her pregnancy. He was about to finish the first year of his foundation course, and the next academic year was not due to start until September. And although from a cultural point of view he was not expected to be around at the time of the birth of his child, he wished to ensure that he was in a good frame of mind, spiritually, for this new stage in his life. They would be away for 8 weeks, and that allowed him time to visit his wife and see his new child in Ethiopia before returning to the UK for the start of the next academic year. Although that last point was what one of his witness statements said, it was not what he said in oral evidence, which was that his plan had been to return to the UK after performing dawah, then to go to Ethiopia in August to see his wife and child, and then return to the UK for his second year at college. He never satisfactorily explained why his plan had not been to go to Ethiopia before returning to the UK.[39]Since Dawit Semeneh had performed dawah before according to Tabligh Jamaat principles, although only (so AP thought) in the UK, he was to be the “emir” for the trip. AP believes that, of the others who went on the trip, Hamdi Dualeh and Zulgai Popal had both carried out dawah before. However, the group was not going to carry it out under the auspices of the Tabligh Jamaat. It was just that the form of dawah espoused by the Tabligh Jamaat was the inspiration for the trip and an important influence for them. AP called what they were going to do “free-style dawah”, but since it was to be in the tradition of the dawah practiced by the Tabligh Jamaat, it would focus on private prayer and the recitation of the Koran. There is much expert evidence that AP’s professed reasons for performing dawah, as well as the sort of dawah which he claims he and his fellow travellers had in mind, was consistent with current religious practice. One significant feature, though, is that when AP was asked whether he wanted to take part in the trip, it had not been decided exactly where the trip would be to. Although AP said in one of his witness statements that it would possibly be somewhere in Africa, he said when giving oral evidence that their destination was not discussed, not even how long their trip was going to last. He did not press for answers on these topics because, as he put it, “I still didn’t think it was going to happen”. He only learnt that they were going to Somalia a day or two before they left.[40]I shall come shortly to AP’s account of what the group actually did in Somalia, but there are a number of reasons to be very sceptical about this part of AP’s account: Somalia was not an obvious place for AP and his fellow travellers to go to in order to perform dawah; there are grounds for thinking that it was not a safe destination for travellers with their national origins; AP chose to go to Somalia to perform dawah rather than go to Ethiopia for the birth of his child; and AP did not tell his family where he was going. Indeed, he lied to his mother about what he was going to be doing. It is necessary to look briefly at each of these four points in turn, though I should dispose of a possible fifth, which has in effect fallen away, which was that Somalia was not the obvious place to go to in order to practice dawah – at any rate, not in the tradition of the Tabligh Jamaat.[41]Performing dawah in Somalia. There were two bases for the suggestion that Somalia was not the obvious place to go to in order to practice dawah. First, Dr Mona Siddiqui, who is the Professor of Islamist Studies and Public Understanding at the University of Glasgow, has said that although she knew of people going to Syria or Egypt to perform dawah, she had never heard of anyone going to Somalia for that purpose. However, she subsequently said that the British people she knew who had gone to Syria and Egypt to perform dawah were people she knew personally. She has no personal links with the expatriate Somali, Eritrean and Ethiopian communities (the three countries which, with Djibouti, make up the countries in the Horn of Africa), and if people from those communities have performed dawah in Somalia, that would have been unlikely to have come to her attention. Secondly, Imam Daud Sheikh-Ali, who is of Somali origin himself, says that there are only a few people of Somali origin who would go back to Somalia for religious reasons, and those who did would probably go in order to strengthen their religious knowledge by visiting mosques and attending sermons and lectures in Somali. But he was not saying that non-Somalis do not visit Somalia to perform dawah. On the contrary: he said that the Tabligh Jamaat has had a presence in Somalia for several years, and although their concept of dawah is very different from that performed by Somalis, groups of people performing the Tabligh Jamaat style of dawah have visited Somalia, those groups including some non-Somalis.[42]The language difficulties. Having said that, the reason why Somalia was not the obvious place for AP and his fellow travellers to go to perform dawah was because, on AP’s own admission, Hamdi Dualeh (himself a Somali) was the only member of their group who spoke Somali. If prayers and sermons in Somalia’s mosques were conducted in Somali (as Imam Sheikh-Ali’s evidence tends to suggest), it would be difficult for non-Somali speakers to get all that much from their time in the mosques, and it would very significantly hamper their efforts to communicate their faith to the local population. AP’s ability to speak Italian would not be of much assistance: the evidence was that although Somalia had a rich heritage of languages, it was now only the much older generation who might speak Italian. Indeed, AP himself said that the language he used in Somalia was “broken English”. The evidence was that in general it was rare to find anyone who speaks a language other than Somali.[43]Foreigners in Somalia. I turn to whether Somalia was a safe place for Ethiopians, such as AP, Dawit Semeneh and Joseph Kebide. AP claims that a Somalian friend of his had told him that it was safe to go there (though he came from a part of Somalia which has “a semblance of governance and a degree of stability” and cannot safely be compared with life in Mogadishu), and in any event AP relied on Dawit Semeneh to check whether it was safe to go. Evidence on this topic was given in closed session by a witness identified only as T, a member of the Security Service, but when it was apparent that the interests of national security did not require this evidence to remain secret, it was disclosed to AP and his legal team. The effect of T’s evidence was that Ethiopians would not be welcomed in Somalia. There is a long-running animosity between the two countries which resulted in conventional warfare between them in the 1970s over the Ogaden region. Indeed, traditionally Somalis and Ethiopians do not get on. They do not share a common language, and Ethiopia does not have the tribal and clan structure which is found in Somalia. Disclosing this evidence to AP and his legal team resulted in AP’s solicitors commissioning a report from Dr John Campbell of the School of Oriental and African Studies at the University of London. Although this was sent to me after all the evidence had been given (but before written submissions), I decided that fairness to AP meant that I should take it into account.[44]I do not understand Dr Campbell to take issue with some of what T said. He acknowledged that in addition to the war in 1977-78 over the Ogaden region, Ethiopian armed forces conducted a military incursion into Somalia in 1996 to destroy a group (allegedly linked to Al-Qaeda) which was behind terrorist activities in Ethiopia. He is less convinced about whether Somalis and Ethiopians do not get on with each other at a personal level. The issue is not that clear-cut because significant population movements over the porous borders of Ethiopia and Somalia have resulted in greater social interaction, and have had the effect of diluting ethnic differences. Of course, most people’s lives in Somalia are devoted to the economic imperative of making a living, the social imperative of looking after one’s family, and the religious imperative of living in a country in which Islam is the dominant religion. Indeed, Dr Campbell made the point that the role of the clans in Somalia’s national politics ensures that the differences between Somalis are far greater than the social and cultural differences between Somalis and Ethiopians. But he does not say that such differences between Somalis and Ethiopians do not exist, and he acknowledges that even outside the Ogaden region conflicts will occasionally erupt and spill over into daily life. AP himself said much the same thing, though he was looking at it from his own particular standpoint when he was growing up as a Christian Ethiopian. He thought that there were tensions between such Ethiopians and Somalis who were Muslims, and although you would hear gunfire occasionally, he claimed not to have encountered any hostility towards himself as an Ethiopian during his time in Somalia performing dawah.[45]T went on to say that Ethiopians would stand out in Somalia: they look very different from Somalis. Dr Campbell takes issue with that as well, but as I read his report, only because inter-marriage as a result of migration and movements in population has resulted in a less recognisable national physiognomy. The fact is that AP himself admits that he does not look like a Somali, though he said that he thought he could blend in. It may be that Dr Campbell is right when he says that depending on the social context AP could pass as a Somali, though the fact that he was not one would quickly become apparent from his lack of familiarity with the language.[46]Having said all that, there is, on T’s evidence at least, an overarching reason why Somalia was not a safe place at all for foreigners, and not just Ethiopians, in 2005, especially foreigners performing dawah. His evidence was that since the collapse of the functioning government in Somalia in 1991, the country has been a lawless place where everyone has access to weapons and where there has been constant in-fighting between the various militia and their political factions for supremacy. It is true that Imam Sheikh-Ali says that following the establishment of the Transitional National Government in August 2000 (which was replaced by the Transitional Federal Government in late 2004), many people have viewed Somalia as entering a more stable period, and a number of people who sought refuge in the UK have chosen to return. Indeed, his view is that 2005 (when AP went to Somalia) was probably the calmest time since the outbreak of civil war in 1991. But he acknowledged that this was a period of relative calm only. What he described as the “warlords” were continuing to terrorise the local people, kidnapping was rife, road blocks were everywhere and bribery was prevalent. That was why so few Somalis had returned there for religious reasons, and those who chose to return for non-religious reasons did so for business or to visit relatives only. AP himself acknowledged that they hardly left the mosques because it was too dangerous for them to go outside: as foreigners they would stand out. The effect of the lawlessness in Somalia even in 2005, said T, was that a group predominantly composed of foreigners would find it impossible to travel in Somalia unless they had some form of backing, and to perform dawah such a group would need to be sponsored, whether by particular mosques or individuals, or under the official umbrella of organisations like the Tabligh Jamaat. Indeed, AP confirmed that not only were they not travelling under the auspices of the Tabligh Jamaat: no mosque or individual sponsored them either.[47]Dr Campbell did not have the experience to comment on what T had to say about the need for the group’s visit to be sponsored. Where he took issue with T was the impression one gets from T’s evidence that things were as bad in 2005 as they had been in 1991. Dr Campbell’s view is that over time the violence and anarchy in Somalia subsided, and gave rise to political movements which sought to restore social order. These movements may have lacked the legitimacy associated with democratically-elected governments, but the summer of 2005 was relatively calm compared to the violence which had preceded it and which followed it. This accords with what Imam Sheikh-Ali had to say, but it does not meet the core part of T’s evidence about the impracticability of a group of predominantly foreigners performing dawah in Somalia without sponsorship. It may be, as AP claims, that Somalia had the advantage of not requiring visas for entry, and that once there it would be a cheap place to live, but things like that apply to many places, and would not normally justify going to a country which was unsafe.[48]AP’s change of plan. Next, there was his decision to go to Somalia and to postpone his trip to Ethiopia. AP claims that before the idea of performing dawah was mentioned, his plan was to spend the summer in Ethiopia. He would leave within a week or so after the end of the academic year. That would have coincided with the birth of his child, since the child would have had to have been conceived before 8 September 2004 which was the date when he had left Ethiopia the previous year. That raises the question of why he bothered to return to the UK on 8 April 2005 in the first place instead of staying in Ethiopia for the summer. He said at one stage that he had to get back to the UK to renew his passport. That was an unconvincing answer because he could have renewed it in Ethiopia, and in his evidence he never came out with the possible explanations advanced on his behalf – namely, that it might have taken some time to get his passport renewed in Ethiopia, and that his indefinite leave to remain in the UK had to be endorsed on it (assuming that the renewal of an Ethiopian passport consisted of the issue of a new one).[49]Having said that, there is no real reason to doubt that he returned to the UK to complete the first year of his foundation course. He claims that shortly before he was due to return to Ethiopia, his mother persuaded him not to leave for Ethiopia just then, so that she could buy some things for him to take with him, and that happened to be at about the time when the idea of performing dawah was mentioned. Coincidences do happen, of course, but on AP’s version of events it was purely fortuitous that he had not left for Ethiopia by the time performing dawah was first discussed. In any event, it was surprising that he chose to go away to perform dawah rather than to be with his wife in Ethiopia at the time of the birth of their first child – even if being physically present at the child’s birth was not something he planned to do – whether because he had not enjoyed the experience when his son had been born in 2000, or because it was not the culturally acceptable thing to do. It is all the more surprising that he chose to go along with a casual suggestion to perform dawah when he had already booked, though not paid for, his ticket to Addis Ababa, and when he did not know where the group would be going or how long they would be staying for.[50]AP’s reticence with his family. Finally, there is AP’s reluctance to tell his family about where he was going or what he was going to be doing. That he did not tell either his wife or his mother about his trip to Somalia, or that he was going there to perform dawah, is not disputed. He says that he did not tell his mother about his real intentions because he did not want her to worry about him. She would only try to talk him out of going. Instead, he told her that he was going to Egypt with a group of others to study the Koran. Even then, she did not approve. She thought that he should be in Ethiopia with his pregnant wife, and they quarrelled about that before he left. As for why he did not tell his wife about going to Somalia, he claims that that was because he knew that she was in regular contact with his mother, and he did not want to put his wife into an uncomfortable position with her – presumably because he did not want his wife to have to lie to his mother about what he was doing. Indeed, in her witness statement, AP’s wife says that he told her that he was going to study in Egypt partly so that she would not worry about him and partly so that she would not have to lie to his mother.[51]Those explanations – if true – would account for why he did not get in touch with his wife or mother while he was in Somalia, though AP gives another reason for not doing so: he had wanted to leave his everyday world behind him so that he could enjoy the peace and tranquillity which dawah affords, and he did not want that to be interrupted by an ongoing quarrel with his mother. That was why neither he nor the others took their mobile phones with them to Somalia.[52]There are reasons to be sceptical about all this. If AP thought that his mother and his wife would worry about him if they knew that he had gone to Somalia, that suggests that he thought that they would think that Somalia was not a safe place to go. He would have thought that they would think that only if he thought that Somalia was unsafe. Despite that, he went there for what he says was the innocent purpose of performing dawah. On the other hand, if he did not think that Somalia was unsafe, why did he pretend to be going to Egypt? One is entitled to suspect that he concealed the fact that he was going to Somalia in order to hide what he was really intending to do there. There would have been no more need for him to hide the fact that he was going to perform dawah there than that he was going to Egypt to study the Koran. Both would have been equally objectionable to his mother who thought that he should be spending the time with his wife. So what was it that he was hiding? Against the background of his presence at the camp in Cumbria and his not infrequent visits to Mohammed Hamid’s home for dinner in the company of known terrorists – coupled with the presence in Somalia of a small jihadist network which was believed to provide jihadist training to local jihadis and foreigners (to which I shall come in a moment) – the justifiable suspicion arises that what he was hiding was the jihadist training which he went to Somalia for. In this context, it is relevant to note that although AP’s wife says that when he eventually got to Ethiopia, he told her that he had gone to Somalia to perform dawah, he did not discuss with her the spiritual benefit which he had derived from it, or indeed with the other members of his family in Ethiopia. He claims that this was because he was too pre-occupied with concerns for the trouble which members of his family in the UK were encountering, but if he really had been performing dawah in Somalia, it is surprising that he did not at any time mention how rewarding the experience had been.[53]Terrorist training in Somalia. The jihadist network providing jihadist training to foreigners and others is said by the Secretary of State to have been led by Aden Ayro, a key figure among Somali jihadists who was killed earlier this year in a US air strike. There is nothing in the open materials which show that Ayro’s network provided jihadist training, though the existence of training camps in Somalia for jihadists has been reported frequently: see, for example, an article in the Post Chronicle dated 29 April 2007 and a US Department of State fact sheet issued on 18 March 2008. Without having to resort to whatever may be in the closed materials, the court can proceed, I think, on the basis of the received wisdom about the existence of such camps in Somalia, though AP has consistently denied having heard of Ayro or his network, or of the existence of terrorist training camps in Somalia.[54]AP’s account of his time in Somalia. It is necessary now to examine what AP actually says about how he and the other members of his group performed dawah in Somalia. They remained in Mogadishu for the whole of their stay. For much of the time Joseph Kebide was ill. Although AP claimed in his oral evidence that Dawit Semeneh knew the mosque they were going to, and that there was someone at the airport to take them there, one of his witness statements suggested something rather different, namely that the mosque the group went to when they arrived was one which a stranger who they happened to meet happened to take them to. The Imam happened to be very welcoming – indeed, even in his oral evidence AP acknowledged that the Imam was not expecting them. They stayed there for 2-3 weeks. Because it was too dangerous for them to go out, food was brought in for them. They only left the mosque once, and that was just for an hour. Their time in the mosque was spent in prayer and study. That pattern was repeated in the other four mosques they stayed in, each mosque they visited having been recommended to them by people at the previous mosque, and the only excursions they made from those mosques were to visit practising Muslims in their homes and to remind them of their obligations, which they did only half a dozen times, and then in only large groups, not just the seven of them. So one of the avowed purposes of dawah – to bring a greater understanding of Islam to the local population – was hardly achieved by them.[55]Two other points should be made. First, AP has described the mosques in which he claims the group stayed, and to be fair Imam Sheikh-Ali has said that AP’s description of them was consistent with his own knowledge of mosques in Somalia. But he did not keep any details of the mosques he visited, or the names of the Imams, or even of any of the people who were there. He could not therefore have contacted them subsequently – if only to send his thanks for their hospitality. Moreover, the fact that he was able to provide a general description of some of the mosques in Mogadishu does not mean that he stayed in them. He could just as easily have visited them to pray while he was in Mogadishu undergoing terrorist training. Indeed, the fact that he has not described any of the mosques sufficiently for them to be positively identified as a mosque at which he stayed means that his claim to have stayed there cannot be checked.[56]Secondly, although AP claims that the seven of them remained as a group for the entirety of their time in Somalia, they actually left Somalia one by one: Damian Benjamin left at the end of June and Nathan Oqubay the following month, the former having had enough of the dawah experience and the latter having to return to the UK to work. They were the only two to leave within the open date of their return tickets from Dubai. Hamdi Dualeh left in August, and then Dawit Semeneh left for Addis Ababa overland. When AP left for Dubai at the end of September, Joseph Kebide and Zulgai Popal were still there. Not long after their return to the UK, Joseph Kebide went back to Ethiopia. While there he was detained for many months, and AP thinks that he is still there. The significance of them not returning to the UK together is that if you perform dawah under the auspices of the Tabligh Jamaat, you are expected to report back and give “a narrative” of your journey. No doubt AP would say that that was never intended because their dawah was “free-style” and not under the auspices of the Tabligh Jamaat.[57]It is here necessary to return to the problems AP claims he encountered in leaving Mogadishu. When he found, as a result of incompetence on the part of the airline on which he was flying from Mogadishu to Dubai, that he could not get to Dubai in time for him to use his return ticket to London, the obvious course for him to take would have been to cut his losses, to go to Ethiopia – overland, if necessary, as Dawit Semeneh was to do – and then to travel directly to the UK from Addis Ababa (as he was eventually to do in December 2006). He does not explain why he chose to wait so long in Somalia for a flight to Dubai, and importantly to forego the chance of seeing his wife and new daughter in Ethiopia since he had to be back in the UK by the end of September at the latest for the start of the second year of his foundation course.[58]AP’s account of the reason for his trip to Somalia and how the group spent their time there is confirmed by Joseph Kebide, from whom a witness statement was obtained. Joseph Kebide’s wife, Muna Awel, in her witness statement confirmed that her husband was a devout Muslim, and was very enthusiastic about studying the Koran on his return from Somalia. He even tried to teach her how to pronounce and recite some of its verses in both English and Arabic. But if her statement is accurate, her husband may not have been quite as forthcoming about his trip to Somalia as one might expect. She says that he merely told her that he was going there to study the Koran (which was only one aspect of the dawah they were supposedly going to perform), and that he did not tell her who he was going with or how long he was going for. Muna Awel attributes his reticence to the fact that they did not discuss religious matters, which itself was a product of their culture in which husbands and wives do not discuss such matters, her lack of a formal education, their difficulty at the time to communicate in a language with which both of them were familiar, and the fact that after the birth of their daughter in March 2005 she moved into larger accommodation provided by the local authority while her husband remained in his studio flat.[59]The Secretary of State’s case is that AP’s fellow travellers were all suspected Islamist extremists. There is nothing in the open materials which explains the basis of that assessment, though for what it is worth, Damian Benjamin was seen by the police filming the entrances and exits of Clapham Junction railway station in June 2007, and it will be recalled that Joseph Kebide and Dawit Semeneh were subsequently excluded from the UK on national security grounds. In addition, there was a link between Joseph Kebide and Hamdi, i.e. Hussain Osman (one of the would-be suicide bombers of 21 July 2005): an envelope with Muna Awel’s name and address, and the name and date of birth of her daughter, was found at Hamdi’s home during the course of the investigation into the events of 21 July 2005. Muna Awel says that she had no idea how the envelope came to be there, and although she admits to have met AP’s mother and sisters, she claims never to have met Hamdi.[60]There is one other matter I should mention. Performing dawah is, on any view, a very significant commitment. It does not sound as if it would be undertaken by anyone but the most devout. And the importance which seclusion and reflection play in it, and the peace of mind which it supposedly brings, suggests a strong contemplative streak in anyone considering performing it. Having observed AP with care in the course of his evidence, he did not strike me as the sort of man who would be attracted to so spiritual a pursuit. I do not doubt his strong identification with fellow Muslims who he sees as victims of oppression throughout the world, but I have real misgivings about whether the more cerebral elements of dawah would have appealed to him.[61]For all these reasons, there are, I think, real grounds for being highly sceptical about whether AP has told the truth about why he went to Somalia. Since Joseph Kebide and Muna Awel have their own reasons for saying that the trip to Somalia was entirely innocent, the fact is that there is no truly independent corroborative evidence of AP’s account. It is, of course, not for him to prove his “innocence”, but even if one puts to one side the profiles of his fellow travellers (because the Secretary of State has not vouchsafed in the open materials the basis of the assessment that they are Islamist extremists), the strong suspicion that AP has deliberately concealed what he really went to Somalia for itself raises the suspicion that it had something to do with terrorism-related activity. His presence at the camp in Cumbria and the evidence of training camps for terrorists in Somalia raises at least the suspicion that he went there to undergo terrorist training of some kind. (iii). AP’s connection with people associated with extremism[62]This topic has already been mentioned in connection with two of the people he was arrested with on 19 October 2002, his friendship with Ali Muhiddin, the people who were at the camp in Cumbria and the people he went to Somalia with. This is not so much a case of guilt by association. Rather his connection with so many people associated with extremism makes it much more difficult to treat what might otherwise be normal activities, such as going on a camping trip, as innocent. However, there are two other people whose connection with AP the Secretary of State has specifically referred to: Magan Hashielmi (another of the people with whom AP was arrested on 19 October 2002) and Mogues Bezabih (who AP was expressly prohibited from communicating with as one of the obligations of the control order). Both Magan Hashielmi and Mogues Bezabih have been assessed to be Islamist extremists, but the basis on which that assessment has been made has not been disclosed in the open materials.[63]For his part, AP accepts that he knew Magan Hashielmi, provided that Magan Hashielmi was the man he knew as Abdul Majid. Abdul Majid was someone who AP saw around from time to time – including an occasion at a community centre for people from Sierra Leone and once at the bookshop of the Central Mosque in Regent’s Park where Abdul Majid worked. AP thinks that the last time he saw Abdul Majid was in 2003 or 2004, and if he was involved in any terrorist training, AP did not know about it. He has not actually commented on whether he has heard Abdul Majid express extremist Islamist views, but it may be that that was just an oversight on his part.[64]As for Mogues Bezabih, AP says that they met in 1996 or 1997, i.e. some time before his own conversion to Islam. Later they would meet at the mosque in Ladbroke Grove, and Mogues was also someone who played football at White City. On one occasion, Mogues came to AP’s mother’s home to break the fast at Ramadan, and AP saw him while they were both in Ethiopia in 2006, Mogues having returned there to care full-time for his brother who was undergoing a period of mental illness. AP says that he did not associate Mogues with any form of extremism at all. However, it has to be said that Mogues knows a number of the people who AP went to Somalia with. The information which AP got from his solicitor – who interviewed Mogues recently for the purposes of these proceedings – is as follows:• Mogues had known Nathan Oqubay since childhood. Nathan’s brother had told Mogues that Nathan had possibly gone to Ethiopia in 2006 with his wife. She had been detained – either there or in Somalia or Kenya – though she was subsequently released. Nathan’s brother also said that he had been told by the British Security Service that Nathan had died, possibly in Somalia.• Mogues also knew Zulgai Popal from playing football with him at White City. They both worship at the mosque in Ladbroke Grove.• Mogues also knew Damian Benjamin, who he said he knew well. They both worship at a mosque in Clapham. If – admittedly for reasons which have not been disclosed in the open materials – the people who AP went to Somalia with are assessed to be Islamist extremists, and if Mogues is, or has been, friendly with a number of them, one can see why Mogues himself might come under a similar suspicion. So even though there is nothing in the open materials which casts suspicion on Magan Hashielmi, the same cannot be said of Mogues Bezabih.[65]Conclusion. The many parts of the jigsaw to which the analysis of the evidence in [24]-[64] above relates have combined to create a worrying profile of AP. I agree with the assumption underlying the control order, namely that the evidence (at any rate the open evidence) does not justify charges relating to any particular criminal activity being laid against AP. Any terrorist training which the evidence suggests he would have undergone took place before terrorist training was criminalised. But each of the core features of the Secretary of State’s case raises suspicions in themselves to a greater or lesser degree, and when combined together they serve to increase one’s misgivings about him. Everyone agrees on the importance of considering both the open and the closed materials together since the latter may have the effect of making the open case less strong than might appear at first sight. But even if such parts of the closed materials as might be regarded as exculpatory are taken into account, I have concluded that the facts relied upon by the Secretary of State in the open materials (putting aside as well any assessments in the open materials for which no explanations have been given in the open materials and which AP would therefore have been unable to answer) amount to reasonable grounds for suspecting that AP has been involved in terrorism-related activity, as defined in sections 1(1)-1(4) of the Terrorist Act 2000 and section 1(9) of the 2005 Act.

The need for a control order

[66]The next issue is whether it is necessary to make a control order against AP for members of the public to be protected from a risk of terrorism. This is the area in which the court should accord a degree of deference to the Secretary of State, because she is better able than the court to decide what measures are necessary to protect the public from the activities of someone suspected of terrorism. This is a topic which may have been addressed in another guise by Mitting J in SIAC, when he had to decide whether to grant AP bail pending the hearing of his appeal to SIAC. It will be recalled that he granted AP bail on stringent conditions which AP’s obligations under the control order were subsequently to mirror. But Mitting J may have been influenced more by the need to ensure that AP’s whereabouts were known (so that he did not disappear and prevent the Secretary of State from enforcing his removal from the UK should his appeal be dismissed) rather than with the risks which any terrorism-related activity on his part might pose to members of the public, and I have concluded that I should not use Mitting J’s decision as the platform from which to proceed. Rather, I should start the assessment afresh, unaffected by Mitting J’s views on the topic.[67]Having said that, neither AP’s legal team nor that of the Secretary of State have specifically addressed in the closing submissions the issue of the need for a control order. Rather, it has been addressed in the context of whether the Secretary of State’s suspicions about the activities of AP in the past were reasonable – the assumption perhaps being that if her suspicions were found to be reasonable, it would follow that the need to make a control order had been made out. However, I have considered that issue quite independently. It is, at the end of the day, not an issue which is capable of much analysis, being more a value judgment than anything else. But if AP has been involved in terrorism-related activity in the past – as the Secretary of State suspects – then unless his beliefs and values which underlie such activity have changed, those beliefs and values strongly suggest that there continues to be a risk of terrorism-related activity on his part if his whereabouts and activities were not being carefully monitored and circumscribed. As it is, he has not suggested that he is now a changed man having put his involvement in terrorism-related activity in the past behind him.[68]That view has been reinforced by what AP revealed about himself when he was interviewed at a local police station by two police officers on 24 June. AP thought that they were enquiring about his well-being since he had by then been in the town where he now lives for a couple of months, and it had not occurred to him that there might have been anything else behind the request that he stayed for a chat when he next reported at the police station. In fact, he now realises that he was being assessed for the purposes of this hearing. He therefore says that he was tricked into talking about himself, not just in the absence of his solicitors but also in a way which he would not have done if he had been aware that he was being assessed, and that what he said might be used against him in these proceedings. Whether that be right or not – and I am prepared to proceed on the assumption that it is – what AP said when his guard was allegedly down has the potential to be very significant evidentially – especially as he regarded the two officers (who had been visiting him in his home) as more sympathetic than the officers he had encountered in London, though the weight to be attached to what he said will have to reflect the circumstances of how he came to be interviewed.[69]Having said that, and even going on AP’s version of what he said, it is plain that he is very resentful about the control order. He completely distrusts the Secretary of State’s motives. He believes that the real reason for the control order is to punish his family, and if the Secretary of State genuinely suspects him of terrorism-related activity, that is only because he is a Muslim who happens to have friends or family who have links with terrorists. He also believes that the real reason why he was sent to live outside London was part of a plan to get him to leave the UK voluntarily. But it is not just the Home Office’s motives which cause him to be resentful. He is very bitter because the control order has excluded him from his family and friends and the opportunity to study and pursue his career in a way which he sees as worse than going to prison. At least in prison there were people who he could talk to. Indeed, he said that he would not be scared of going to prison, in part because his experience at Feltham Young Offender Institution where he served part of his earlier sentence was a frightening one, and no prison could be worse than that, but more importantly because he does not at present have anything to lose.[70]On one version of what AP was telling the police, this sense of isolation has brought him close to letting his emotions get the better of him. Although he said that his religion was helping him to cope, he talked about exploding, of not being able to control himself if God did not release him from the oppression he was being subjected to, of feeling blood rushing through his hands, and of having so much inside him that sooner or later it would have to come out. He sounded as if he was saying that the regime to which he was subjected under the control order could not hold him back in the future as it had up to then. For his part, AP denies that any of this should be taken literally. He was not talking about taking the law into his own hands. He was talking about not reverting to his previous ways, i.e. the way he had lived his life before embracing Islam. And to the extent that he was expressing his desperation, he was actually explaining how desperate he had felt on a particular day.[71]An important passage in the notes made by one of the police officers reads as follows:
“You were looking at me. Do I show to you emotions? Do I look as if I can’t take it? Do I look in control? Before I do something I plan it properly and that’s the way I do it. When I wake up in the morning I thank God and thank him that he has given me the chance to worship him. All this is going to stop. It won’t last forever. I’m not someone who does things out of the blue. I do things the best way I can. Once it’s done it’s done. The [control order] taught me a lot of things. I’m not going to do a silly thing to take me to prison for the rest of my life. I’ll do something I won’t regret. I’ll do it. The consequences come later. I don’t want to regret it. I see people regretting things that they’ve done, I won’t regret it.”
On the face of it, AP appeared to be saying that the control order had made him realise that if he was going to do anything which could put him in prison for the rest of his life, he would have to plan it carefully. He claims that that is nothing like as chilling as it sounds. He was merely responding to a question about whether he did things spontaneously, and what he was actually talking about was only how he would go about not complying with the restrictions imposed by the control order. Indeed, he claims that when the interview is read as a whole, it shows him as saying that he was determined to comply with the terms of the control order, however restrictive they were.[72]It is critically important not to give too much weight to AP’s resentment about being subject to a control order. The crucial question is what he would do if he was not subject to one. But the explanations he gave for some of the more extreme language attributed to him do not, I believe, have the real ring of truth about them. And when you couple how he feels at present with those of his beliefs and values which underlie those of his activities which caused the Secretary of State to suspect him of terrorism-related activity in the first place, it is difficult not to remain very concerned about him. Giving the Secretary of State’s assessment of the risk he continues to pose due, but not undue, deference, I have concluded that it is necessary, in order to protect the public from a risk of terrorism, for AP to be the subject of a control order. I have taken into account such parts of the closed materials as might be regarded as exculpatory, but even then the open materials also justify that conclusion, even if one ignores any assessment in the open materials for which no explanation has been given in the open materials and which AP would therefore have been unable to answer.

AP’s obligations under the control order

[73]The particular obligations imposed on AP by the control order raise two issues: whether they amount to a breach of AP’s human rights protected by the Convention, and whether, to use the words of section 1(3), they are “necessary for purposes connected with preventing or restricting [AP’s] involvement … in terrorism-related activity”. I propose to deal with the second of these issues first.[74]The need for the obligations. The court is obliged to give “intense scrutiny” to the necessity for each of the obligations imposed on AP, though the court’s principal focus is on the obligations to which the two appeals relate. Although no submissions have been addressed on AP’s behalf in respect of the other obligations, I have considered each of them. This is again an area in which the court should accord a measure of deference to the Secretary of State’s assessment of what is needed, and I have concluded that each of the obligations to which AP’s appeals do not relate are necessary to prevent or restrict AP’s involvement in terrorism-related activity. With that in mind, I turn to the obligations to which the two appeals relate.[75]The first appeal. It will be recalled from [18] above that the first appeal relates to two obligations which were more onerous than the conditions on which AP had previously been granted bail by SIAC. They relate to the prohibitions on his attendance at pre-arranged meetings and at more than one mosque. A highly technical point is taken on behalf of the Secretary of State in relation to this appeal. The appeal is being brought under section 10(3). That provides for an appeal against the decision made by the Secretary of State on an application by the controlled person under section 7(1)(b) for the modification of an obligation imposed by a non-derogating control order. But an application by the controlled person for such a modification can only be made under section 7(1)(b) if “the controlled person considers that there has been a change of circumstances affecting the order”. The application for a modification of these two obligations was made on 15 January 2008 – not on the basis that AP considered that there had been a change of circumstances affecting the order since it had been made by the Secretary of State on 10 January 2008, but on the basis that the obligations were more onerous than the conditions of bail imposed by SIAC. Accordingly, the application for a modification could not be treated as an application of the kind which attracted the right of appeal under section 10(3). That is said to be reinforced by what section 10(5)(b) says is the function of the court in the case of an appeal against a decision made by the Secretary of State on an application for the modification of an obligation imposed by a non-derogating control[76]Since a draft of this judgment was sent to the Secretary of State’s solicitors pursuant to rule 76.33(2) of the Civil Procedure Rules, my attention has been drawn to the very recent judgment of Mitting J in AU and AV v Secretary of State for the Home Department[2008] EWHC 1895 (Admin), in which he concluded that this argument was unsound. I am less convinced of that than him, but I am reluctant to reach a concluded view on the topic when I have not been addressed on Mitting J’s reasoning. As it is, the Secretary of State has always acknowledged that it was unlikely that the court’s substantive consideration of the merits of the arguments about these two obligations would be affected. If they could not be considered in an appeal under section 10(3), they would have to be considered when the court reviewed the control order under section 3(10). Indeed, Mr Andrew Nicol QC for AP was always content for me to take that course. In the circumstances, it is unnecessary for me to decide whether the first appeal has to be dismissed for the reason advanced by the Secretary of State, and I propose to address here whether these obligations are necessary to prevent or restrict AP’s involvement in terrorism-related activity.[77]The first of these two obligations has two elements. The first is a restriction on AP arranging to meet anyone outside his flat apart from his mother and one of his brothers (save for certain exceptions), and the second is a restriction on him attending any pre-arranged meetings or gatherings outside his flat either (again, save for certain exceptions), though he can request the Home Office to permit him to do so. The focus of the appeal is on the first of these elements. The restriction prevents him from arranging to meet friends of his – whether old family friends or friends of his of his own age – outside the flat without prior Home Office approval. He claims that requiring them each time to go through such an approval process would deter them from arranging to see him in the first place. It would only serve to increase his already acute sense of isolation.[78]I am prepared to accept that some people who might otherwise have agreed to visit AP in the town where he now lives might be put off doing that because of the knowledge that they were being checked out by the police or the security services. But I suspect that the only people who would be deterred by that would be those who had something to hide. And if they had something to hide, they would not be suitable people for AP to meet in the first place. Indeed, I am sceptical whether people who have nothing to hide would be put off by such a process – especially as it is unlikely that they would actually be interviewed themselves. The vetting process, I have assumed, would be done on the basis of covert enquiries about them. But even if they were interviewed in the course of the process, I doubt whether that would significantly put them off agreeing to see AP. The only reason why it might would be if they had not known that AP was subject to a control order, so that the interview would have revealed that to them for the first time. I can see, of course, how that might deter someone from visiting him, but I would be very surprised if any family or friends of AP who might otherwise have visited him did not know that a control order had been made against him.[79]AP has said that he would be quite content for the Home Office to draw up a list of all the people with whom the Secretary of State did not want him to associate. The problem with that is that it would require in effect the Home Office to identify those persons who they suspect of being involved in, or of having links with those involved in, terrorism-related activity. It would be quite contrary to this country’s national security interests for that intelligence to be indirectly revealed in that way.[80]The fact of the matter is that it is AP’s links with so many people involved, or with people themselves having links with those involved, in terrorism-related activity which has caused the Secretary of State to view AP with such suspicion. The need to monitor who he meets outside his flat arises from that important consideration. To ensure that he does not meet anyone who might be unsuitable, it is necessary to require him to obtain Home Office approval to meet anyone by arrangement. I have concluded that this obligation is necessary to prevent or restrict AP’s involvement in terrorism-related activity, and cannot be said to be disproportionate to that need.[81]The second of the obligations to which the first appeal relates is the obligation preventing AP from visiting more than one mosque, and permitting him to visit only that mosque for which prior approval has been obtained from the Home Office. As I said at [17] above, he can request the Home Office to permit him to visit another mosque instead. However, he has never made such a request, whether while he was living in Tottenham or since his move out of London.[82]It is said that limiting AP to one mosque is a serious interference with his freedom to practise his religion. I do not agree, provided that he is able to pray at the mosque of his choice and to understand what the Imam who leads the prayers and preaches the Friday sermon is saying. That is said to be the problem with the mosque for which AP has sought and obtained approval to attend in the town where he now lives. Most of that town’s Muslims speak Bengali, and that is the language of that mosque. It is not a language which AP is able to understand. However, the mosque which he has applied to go to is just one of five mosques within the geographical limits of the control order. It has not been suggested on AP’s behalf that the services at all of those mosques are conducted or the sermons given in a language which AP cannot understand. Indeed, it is said on the Secretary of State’s behalf that in two of the mosques the Friday sermon is given in English, though AP’s brother who has been to one of these mosques was told that Friday prayers are in Urdu. It is said that the prohibition on AP visiting another mosque prevents him from finding out what any of the others are like. But there is nothing to prevent him requesting that he be permitted to visit one of the other mosques instead of his current one – if only to see if it is better suited to his needs. He has not done that. Until he has done that, and is able to say that for one reason or another those other mosques are unsuitable, the restriction on him visiting more than one mosque does not seriously interfere with his freedom to practise his religion.[83]The conventional wisdom is that some mosques can be a meeting place for people with extremist views, and a forum for recruiting people to extremist causes. In these circumstances, it is appropriate for the Home Office to want to know which particular mosque AP is attending. The Secretary of State would not want him to be re-energised by other congregants into involvement in terrorism-related activity, especially as he is no longer under the threat of deportation. Nor would she want him to have the opportunity to communicate extremist views to others. The need to monitor which mosque AP attends makes the obligation preventing him from visiting more than one mosque, and requiring him to obtain approval for the one he wishes to attend, necessary to prevent or restrict his involvement in terrorism-related activity, and it cannot be said to be disproportionate to that need.[84]In reaching these conclusions about the obligations to which the first appeal relates, I have not overlooked the fact that these obligations are more onerous than the corresponding conditions of bail imposed by SIAC. But I do not think that that necessarily reflects an unjustified hardening of the Secretary of State’s position. She objected to AP being granted bail at all, and if it is suggested that if Mitting J was content then with these less onerous conditions, so should the Secretary of State be now, the answer is that I simply do not know how extensive the argument was about the conditions once Mitting J had decided to grant bail in principle, and therefore whether the differences between the conditions as they were then and the obligations as they are now were ever addressed. Nor have I overlooked what Mitting J is supposed to have said when granting bail – namely that they were still at the initial stage, and that if AP complied faithfully with the conditions over the following months he could apply to have them relaxed. But although that would have caused AP to think that he could apply in due course for the conditions to be relaxed, he had no legitimate expectation that they would, or even might be, relaxed.[85]The second appeal. This appeal relates to the requirement that AP must live in a town outside London. It is free from technical objections. The evidence is that the need to relocate AP outside London has always been considered to be necessary, even though the Home Office only began to look for appropriate accommodation in February 2008, which does not sit well with any sense of urgency about the move. However, it is said that among the factors which had to be taken into account in deciding what part of the country to move AP to were the ability of the local police to manage control orders, the ethnic make-up of the area, the availability of local amenities and facilities (including mosques), as well as the distance and travelling time from London. Thus it was on 10 March that the property to which AP was subsequently moved was secured, and on 17 March that the Control Orders Review Group discussed AP’s case, deciding that(a) he should be relocated out of London and(b) the town where he now lives should be the designated area for his new home. One of the reasons for (b) was because that town has a significant Muslim population. Advice given about AP’s proposed relocation was noted by the Secretary of State on 26 March.[86]The justification for relocating him outside London was to make it more difficult for him to see his extremist associates. Many of them are now in prison, of course, but two are specifically mentioned in the open materials – Damian Benjamin and Mogues Bezabih – though for all the Secretary of State knows there may be others as well, of whom the security and intelligence services are completely unaware. Damian Benjamin comes under suspicion because he went with AP to Somalia for what has to be treated, for the purposes of the current exercise, as terrorist training. Mogues Bezabih comes under suspicion because of his links to four of the people who went to Somalia including AP. Given that there has been a concentration of Islamist extremists in London, there is a need to remove AP from that milieu.[87]This justification has to be balanced against the incontestable hardship for AP in being isolated from his mother and his brother. His evidence was that while he was in Tottenham, they would visit him about twice a week, and that every week he would see his sister’s three children who he would take to the park. His move has had a profound impact on how often he sees them. His mother has not visited him at all, and his brother has visited him just the twice. That is just as upsetting for his mother as it is for him, because at present she needs AP around more than ever. That is compounded by the fact that he does not know anyone in the town where he now lives, and sometimes speaks to no-one in the course of the day other than short calls to his solicitors or to his mother and his brother.[88]It is true that the town where he now lives is not that far from London. The journey by rail takes about 1¾ hours, and trains travel every half hour or so. It is also true that there is no limit on the length of time AP’s mother and brother can spend with him if they choose to visit him, and there is, of course, no need for them to seek prior Home Office approval. But the practical difficulties of visiting him are not inconsiderable, bearing in mind that his mother now looks after his sister’s three young children. She cannot go to the town where AP now lives on those days when she has to take the children to, or collect them from, school, and if she was to go to that town, she would have to take the children with her. It is said that she cannot go to that town without AP’s brother, because she has never left London alone. The only day of the week he could go when the children are not at school would be on Sundays. But these practical difficulties are not insuperable. The fact is that they could visit AP en famille on Sundays, as well as on other days of the week outside the school terms, and they could travel at off-peak times to get the advantage of lower fares.[89]Having said that, there is unquestionably another significant hardship for AP in having to live in the town where he now lives. It is difficult for him to feel part of the local community. He claims that the local Muslim population comes for the most part from Bengal and Pakistan. They are a close-knit and closed culture. No-one in the mosque has welcomed him into the community, or asked him how he finds the area or even what his name is. The Imam shows no interest in him, though that may be the product of language differences. The mosque has simply become a place to pray. It has not become either the spiritual or social focus of his life. He has spotted the occasional Ethiopian or Eritrean, but he has not tried to befriend them because he does not want to burden them with his problems. He goes to the gym, but people there see his tag and naturally think that he is a criminal. Although he has tried to explain what a control order is, that tends to make things worse. All in all, these experiences merely serve to reinforce his sense of alienation.[90]There are three other factors I should mention. The first is contained in the confidential annexe.[91]Secondly, there is the current state of his mental health. He has been seen a number of times by Dr Michael Korzinski, the clinical director of the Helen Bamber Foundation, and on one occasion by Dr Stuart Turner, a consultant psychiatrist. Prior to a recent discussion between them when they discussed AP’s case, Dr Korzinski had noted that AP was claiming to have thoughts which indicated a measure of paranoia (such as thinking that the Security Service had tampered with his flat while he had been out) and was exhibiting signs of a retreat from reality in that he thought that he was inhabiting a parallel universe and that our world was unreal. The full clinical significance of these symptoms was not yet clear. They could simply be the normal human response to his sense of isolation, but they could also be the early signs of mental illness. However, in their joint statement, Dr Korzinski and Dr Turner agree that “there is no psychiatric diagnosis using current classification systems”, and for the time being the court has to proceed on the basis that AP’s mental health has not yet been affected by the abnormal conditions in which he is living. On the other hand, they agree that he remains vulnerable to, and at risk from, mental health problems in the future as a result of the absence of regular family support, the lack of a social network, the indeterminate nature of the control order, and the absence of meaningful daytime activity. Dr Korzinski has said that no empirical work has been done on the long-term effects of control orders, and our understanding at present is based on individual cases and reports of clinicians. Plainly AP’s mental health must be kept under review, but the fact remains that at present he has not been diagnosed as suffering from mental illness.[92]Thirdly, the move from London has inevitably made it more difficult for his solicitors to take instructions from him. This has not been a case in which it was possible for his solicitors to take his instructions other than personally, and that has involved visits to see him in the town where he now lives Restrictions on the use by them of a laptop while in his company have added to their burdens. But I would characterise these as no more than inconveniences. They go nowhere near raising concerns, for example, about equality of arms, and although I have taken them into account in the balancing exercise, I have attached relatively little weight to them.[93]At the end of the day, the issue boils down simply to a matter of judgment. Moving him out of London altogether is the most effective way of reducing the chances of him maintaining personal contact with those of his associates in London who are or may be Islamist extremists. Giving due, but not undue, deference to the view of the Secretary of State on the topic, my opinion is that, but for the view I have reached on the impact of Art. 5 of the Convention, the need to ensure that AP does not maintain personal contact with those of his associates in London who are or may be Islamist extremists would have made it necessary, in order to prevent or restrict his involvement in terrorism-related activity, for him to be removed from London altogether. Balancing that need against the undoubted hardship which AP experiences as a result of having to live in the town where he now lives, the view I would have reached is that the move was not a disproportionate response to that need. Once again, in coming to this conclusion – as well as the conclusion on the issues raised by the first appeal – I have taken into account such parts of the closed materials as might be regarded as exculpatory, but even then the open materials alone justify that conclusion, even if one ignores any assessment in the open materials for which no explanation has been given in the open materials and which AP would therefore have been unable to answer.[94]AP’s human rights. Art. 5 of the Convention prohibits the deprivation of liberty. Whether a particular set of obligations imposed under a control order amounts to the deprivation of the controlled person’s liberty, or merely a restriction on his movements, was considered by the House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC 385. The principles which emerge from JJ were summarised by Mitting J in Secretary of State for the Home Department v AH [2008] EWHC 1018 (Admin), and I adopt that summary with which I agree. Those principles are as follows:• There is no “bright line” separating deprivation of liberty from restriction on movement. As the European Court of Human Rights said in Guzzardi v Italy (1980) 3 EHRR 333 at [93], borderline cases fall within the area of “pure opinion”, though we would perhaps call it judgment.• The test is an objective one. The task of the court is to assess the impact of the measures on a person in the situation of the person who is subject to them. For that reason, counsel for AH accepted that it is not possible for the same measures to amount to a deprivation of liberty in one case, but not to amount to a deprivation of liberty in another case, simply because of their impact on the morale or mental health of the person subject to them.• Many relevant factors must be taken into account, such as the nature, duration, effects and manner of execution or implementation of the measure in question, but the starting point – what Lord Bingham in Secretary of State for the Home Department v E [2008] 1 AC 499 at [11] called “the core element of confinement” – is the length of the curfew.• Social isolation is a significant factor, especially if it approaches solitary confinement during curfew periods.[95]Thus, although the paradigm examples of deprivation of liberty are detention in prison and house arrest, deprivation of liberty can take many other forms, and the court’s function is to look at the package of measures as a whole. To these principles, though, I would add two more. First, Lord Brown commented at [108] on the explicit reluctance of his colleagues to suggest the point at which curfews would, by virtue of their length, involve the deprivation of liberty. He went on to say that in his view a curfew which did not exceed 16 hours was “insufficiently stringent” as a matter of law to effect a deprivation of liberty. Secondly, a sense of social isolation would be felt particularly acutely where the controlled person was required to live in an area unfamiliar to him in which he had no family, friends or contacts. If he was cut off from his old haunts and acquaintances, his ability to lead any kind of normal life during non-curfew hours as well as curfew ones would be affected: see, for example, Lady Hale at [61]. I would characterise it as a form of internal exile.[96]It was this kind of social isolation which led Mitting J in SIAC in U v Secretary of State for the Home Department (TRS/329/2008) to conclude that an Algerian who had been found to constitute a grave threat to national security be bailed to a communal house in Brighton (albeit on a 24 hour curfew) – where there was the possibility, admittedly remote, that he might be able to access a fellow occupant’s computer and therefore the internet – rather than be sent to Liverpool on a 22 hour curfew where he would be in “solitary confinement in the community”. That “solitary confinement in the community” did not prevent Mitting J from upholding the control order in AH which, before it was relaxed quite significantly, had imposed a 14 hour curfew on someone who was deliberately moved from his associates in London and taken to a city where he knew no-one, although he described the case as “very close to the borderline”. And it should be noted that in AH the only people who AH could not associate or communicate with were people who were themselves subject to a control order. There was, therefore, no prohibition on him meeting anyone else, whether inside or outside his flat, or whether by arrangement or otherwise.[97]It is the combination of the equivalent of house arrest up to the maximum period identified by Lord Brown, and the equivalent of internal exile which makes AP so socially isolated during the relatively few hours in the day when he is not under house arrest, coupled with his inability to make even social arrangements because pre-arranged meetings (otherwise than with his mother and his brother) are prohibited, which lead me to conclude that the obligations imposed on him fall on the side of the line which involves the deprivation of liberty rather than the restriction of movement. As Mitting J said in AH at [24], this is a matter of “pure opinion” which does not permit detailed elaboration, but had he remained in London, so that he could still see and be visited by his mother, his brother and his sister’s three children, my view would have been different.[98]Arts. 8 and 9 of the Convention – which protects one’s right to respect for one’s private and family life and to practice one’s religion – are relevant here as well. The obligations imposed on AP unquestionably interfere with his private and family life and his ability to pray at a mosque of his choosing, the issue here being whether those obligations are necessary in the interests of national security. That is really no different from the issue which I have already decided in the Secretary of State’s favour under section 1(3). The difference between Art. 5 and Arts. 8 and 9 is that the rights protected by the latter may be interfered with on grounds of national security, whereas the right not to be deprived of one’s liberty may not be interfered with at all.

The remedy

[99]For these reasons, whatever may be said about the need for a control order with the sort of obligations which this control order imposed on AP, this control order imposed obligations on him which infringed his right not to be deprived of his liberty under Art. 5. In JJ, the House of Lords held that in such circumstances the control order had to be quashed, since the effect of such a finding was that the control order which the Secretary of State made was a derogating control order which she had no power to make rather than a non-derogating one. However, the twist in the present case is that the feature of the control order which has resulted in AP’s right not to be deprived of his liberty being infringed was the obligation on him to live in the town where he now lives, which was introduced by the modification of the control order without AP’s consent. In these circumstances, it might be said that it was that modification which the Secretary of State did not have the power to make, so that the court should simply quash the obligation imposed by that modification under section 3(12)(b), with the result that the control order remains in place with the obligations which had previously been imposed. However, that may not be a practicable course to take because the flat in Tottenham in which he was living, prior to his move to the town where he now lives, may no longer be available for him[100]I was, of course, not addressed on the issue of the appropriate remedy since it was not known what my conclusion on the obligations imposed by the control order might be. Accordingly, that will have to be considered when this judgment is handed down.

order

it is to determine whether “his decision that the obligation continues to be necessary” is flawed. As Goldring J noted in AF v Secretary of State for the Home Department [2007] EWHC 2001 (Admin) at [9], “it is assumed that the obligation was necessary when it was made some four months ago”.

Cited in 5 later judgments