Secretary of State for the Home Department v AE (Rev 1) [2008] EWHC 585 (Admin)

“41….This is not a case (like E) in which the order can be justified on the strength of the open material alone. Nor is it a case in which the thrust of the case against the controlled person has been effectively conveyed to him by way of summary, redacted documents or anonymised statements. It is a case in which, on the judge’s assessment which the Court of Appeal did not displace, MB was confronted by a bare unsubstantiated assertion which he could do no more than deny. I have difficulty in accepting that MB has enjoyed a substantial measure of procedural justice, or that the very essence of the right to a fair hearing has not been impaired”

“42… The judge accepted (para 146), without qualification, submissions by counsel for AF that no, or at least no clear or significant, allegations of involvement in terrorist-related activity were disclosed by the open material, that no such allegations had been gisted, thatthe case made by the Secretary of State against AF was in its essence entirely undisclosed to him and that no allegations of wrongdoing had been put to him by the police in interview after his arrest, affording him an idea by that side wind of what the case against him might be. Having noted the decision of the Court of Appeal in MB and the decision of the House in Roberts, above, the judge concluded (para 166) that there was no clear basis for a finding of incompatibility. 43. This would seem to me an even stronger case than MB’s. If, as I understand the House to have accepted in Roberts, above, the concept of fairness imports a core, irreducible minimum of procedural protection, I have difficulty, on the judge’s findings, in concluding that such protection has been afforded to AF. The right to a fair hearing is fundamental…”

“only such measures restricting the rights of the defence which are strictly necessary are permissible under article 6 (1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities”. (Jasper v United Kingdom (2000) 30 EHRR 441 [52] and Fitt v United Kingdom (2000) 30 EHRR 480 [45] quoted by Lord Bingham of Cornhill [32] whose approach was adopted by Lord Brown [90] and the identical passage in Botmeh and Alami v United Kingdom (Application no 15187/03-unreported 7 June 2007) quoted by Baroness Hale of Richmond [62]) and in Rowe v United Kingdom (2000) 30 EHRR 1 [61] quoted by Lord Carswell [80]) This test entails considering first whether the regime adopted in this case of withholding many allegations and much evidence from AE but instead using the special advocate procedure was “strictly necessary”

“with advance notice, your client would be able to make a voluntary departure from the U K at any time and invite you to consider whether he wishes to leave the UK and return to Iraq. I can confirm that if he wishes to do so the Home Office would be willing to consider what assistance it may be able to provide.”

“64. The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instance: Secretary of State for the Home Department v Rehman [2003]1 AC 153; Ireland v United Kingdom (1978) 2 EHRR 25. 65. Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order “with the consent of the controlled person” envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations”. 92. A final factor which I have to consider is the weight to be attached to the way in which the control order operated before its amendment on 31 October 2007 and in particular whether it restricted AE effectively. In my view bearing in mind, Lord Phillips’ requirement, which I quoted in the last paragraph, for “the court to give intense scrutiny to the necessity for each of the obligations imposed on the controlled person”, the starting point for considering an appeal against a modification is to consider very carefully first if the existing measures have adequately protected (and will continue to adequately protect) the public against the activities of the controlled person and second if the controlled person has complied with the obligations imposed on him. If the answer to each question is in the affirmative, there must be a strong presumption that any alterations in the control order strengthening the restrictions are unnecessary. Of course this presumption can be, and should be, rebutted if, for example, there is evidence that some existing or proposed or anticipated activities of the controlled person are likely to pose a greater or a different threat to the public. 93. I should stress that in determining if any particular restriction is necessary, it is necessary to give anxious scrutiny to the question of whether the interests of the public can be protected by a less onerous obligation. Indeed Lord Phillips indicated that the courts “should explore alternative means of achieving the same result” when considering the necessity of imposing any particular obligation. (v)Was there a need to impose more stringent requirements on AE on 31 October 2007 for purposes connected with protecting members of the public from a risk of terrorism? 94. Witness O accepted that since the imposition of the control order AE has not been involved in terrorist- related activities. AE was arrested in February 2007 by the Cambridgeshire police on suspicion of breaching his control order conditions on a number of occasions in late 2006. A file was submitted to the Crown Prosecution Service who concluded that there had been breaches of the order but that there was either a reasonable excuse or an insufficient public interest in prosecuting AE. These matters have not been pressed by the Secretary of State as the facts are too unclear to be held against AE. I will therefore proceed on the basis that AE has not acted in breach of any of the control orders in force against him at any particular time. 95. The case for the Secretary of State in support of the 31 October modifications is that “13. The Security Service assesses that the conditions of [AE]’s control order have been effective to some degree in reducing his ability to associate with extremists and participate in terrorist activity. However, despite being subject to a control order, the Security Service assesses that [AE] remains a significant member of the Iraqi Kurd extremist community and continues to associate with Islamist extremists. The Security Service assesses that through such associates, [AE] possesses the contacts and knowledge to provide support to those involved in terrorism-related activity. The Security Service also assesses that these associates would have the capability to facilitate [AE]’s own involvement in terrorism-related activity. 14. Given [AE]’s past involvement in the facilitation of terrorist activity and the radicalisation of individuals in the UK, and that he continues to associate with Islamist extremists, the Secretary of State considers it is necessary to increase [AE]’s curfew and to impose greater restrictions on visitors to the residence in order to disrupt as much as possible his contract with them and potential to engage in or support others involved in terrorism-related activity”. 96. That raises the issue of whether the pre-31 October 2007 control order would now adequately protect the public against the risk of terrorism in the light of AE’s actual or potential activities. I have explained in the closed judgment why I have concluded first that AE continues to associate with some Islamist extremists without being in breach of the pre-31 October 2007 order and in consequence second that this order did not adequately protect members of the public from the risk of terrorism. It is against that background that consideration has to be given to whether it was necessary to introduce into AE’s control order the two provisions in the 31 October 2007 amendments, which are now under appeal. (vi). Was the imposition of the ban on visitors to AE’s residence during non-curfew hours necessary for purposes connected with protecting members of the public from a risk of terrorism? 97. It is appropriate to start by considering the less onerous obligation raised on the modification appeal and that is the ban on visitors during non-curfew hours with the exception of the small group of visitors exempted as I have explained in paragraph 76 above, who I shall call “the exempted category”

“16. As stated previously, much of [AE]’s terrorism-related activity necessarily involved regular contact with associates who were themselves involved in the same or other terrorism-related activity. The Security Service assesses that [AE]continues to associate with Islamist extremists and that restrictions on [AE]’s capacity to do so are necessary to reduce the risk that he will involve himself again in terrorism-related activity or share his expertise and contacts with others. It is therefore necessary that any visitors to [AE]’s home at any time should, absent the prior agreement of the Home Office, be limited to his legal representatives, children under the age of tem years, members of the emergency services (in an emergency) and, if necessary, others to whom he is obliged to allow access under the terms of any tenancy agreement”

“Although the imposition of a longer curfew cannot entirely prevent [AE] from engaging in terrorism-related activity, a requirement to reside at a particular address and only to leave that address at certain times reduces his ability to do so without detection. As will be obvious, the less time that [AE] is able to be outside his home and therefore able to engage in those activities, the greater the reduction in the risk that he poses. As will also be evident, the fact that [AE] is restricted to one location for particular periods makes his movements easier to monitor so that any breach of any other obligation will be more easily detected”