Secretary of State for the Home Department v AU [2009] EWHC 49 (Admin)

[2009] EWHC 49 (Admin)Case No PTA/20/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION PURSUANT
TO THE PREVENTION OF TERRORISM ACT 2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/01/2009
Before
MR JUSTICE MITTING
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellantAURespondent
MR ANDREW O'CONNOR and MR RUPERT JONES instructed by THE TREASURY SOLICITOR) for AppellantMR MATTHEW RYDER (instructed by BIRNBERG PEIRCE & PARTNERS ) for RespondentMR MARTIN CHAMBERLAIN and MISS CATHRYN McGAHEY(instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special AdvocatesHearing Hearing dates: 10th, 11th,12th, 15th and 16th December 2008
JudgmentMR JUSTICE MITTING :Background
[1]AU is a Libyan national who arrived in the United Kingdom on 5th November 1994, from Saudi Arabia, and immediately claimed asylum. The basis of his claim was that he belonged to an unnamed group whose object was to topple the Libyan regime and replace it with a free Islamic regime. He claimed to have left Libya in 1991, for Egypt, and then Saudi Arabia. He said that he had been to Pakistan in 1992, to take part in the jihad against the Communists in Afghanistan. He had fought with the Mujahadin in Jalalabad: 1/3/145, 160 and 161. He was eventually recognised as a refugee and granted leave to remain on the 3rd November 1999. In 1995 he married a Libyan born British citizen, who has lived in the United Kingdom since the age of three. They have three children, aged eleven, nine and seven. She is pregnant with their fourth child and due to give birth in early January 2009. On 21st November 2002 AU was arrested under Section 41 of the Terrorism Act 2000 at Heathrow, while attempting to travel to Iran. On 23rd November 2002 he was detained under Section 21 of the Anti-Terrorism Crime and Security Act 2001 and recommended for deportation. He appealed to SIAC, who allowed his appeal on 8th March 2004. The ground upon which the appeal was allowed was that the Commission was not satisfied that there were reasonable grounds to suspect that AU had links to Al-Qaeda (AQ) or had knowingly provided support to extremists who belonged to loosely affiliated AQ networks. The Secretary of State applied for permission to appeal to the Court of Appeal, which was refused on 18th March 2004. AU was released on that date. On 3rd October 2005, he was detained under section 3(5) of the Immigration Act 1971, pending deportation to Libya. On 12th December 2005 he was charged with three terrorism-related offences:(1) conspiracy to provide property for the purposes of terrorism,(2) entering or being concerned in an arrangement to make property available to another, with two other men, contrary to Section 17 of the Terrorism Act 2000 and(3) providing property for the purposes of terrorism contrary to section 15(3) of the same Act. He was detained pending trial. On 11th June 2007, having sought, and obtained a Goodyear indication from McKay J, he pleaded guilty to the second of the three charges, admitting that he had become concerned in an arrangement as a result of which property was made available and was to be made available to others, knowing or having reasonable grounds to suspect that it would or might be used for the purposes of terrorism between 19th February (the date when the Terrorism Act 2000 came into force) and the date of his detention, 21st November 2002. He was sentenced to three years nine months imprisonment. On 27th October 2007, he was transferred into immigration detention and on 13th November 2007 released by SIAC on conditional bail. On 3rd April 2008 the Secretary of State applied for and was granted (by Collins J) permission to make a non-derogating Control Order against AU. It was served on 4th April 2008 and remains in force. It required him to reside at a flat in Hackney and not at the home of his family in Edgware and to be subject to a sixteen hour curfew and to a boundary which confined him to Hackney. He appealed against the Secretary of State’s refusal to modify five obligations imposed by the Control Order under section 10(3) of the Prevention of Terrorism Act 2005. I dismissed his appeal on 31st July 2008: [2008] EWHC 1895(Admin). On 29th August 2008 a significant variation to the Control Order was made, requiring him to live at an address in West London and to be subject to a boundary which encompassed much of Ealing. The sixteen hour curfew remains. In these proceedings, AU challenges the Secretary of State’s decision to make the Control Order and to maintain it, and in particular four of its obligations, in force, by way of review under section 3(10) of the 2005 Act.

The principal issues

[2]The principal issues arise under five heads: i) The decision making process: did the Secretary of State properly take into account the criminal proceedings, including the facts upon which they were brought and determined, in making her decision to impose a Control Order on AU? ii) Procedural: has AU been afforded at least the minimum requirements of procedural fairness to which he is entitled in these proceedings? iii) Substantive: is the Secretary of State’s decision that AU has been involved in terrorism-related activity other than that admitted by him in the criminal proceedings flawed? iv) Lawfulness: do the obligations imposed by the control order deprive AU of liberty and so fall foul of Article 5 ECHR? v) Necessity: is the Secretary of State’s decision that the making and continuance in force of(i) the control order and(ii) four of its particular obligations, are necessary for purposes connected with protecting members of the public from a risk of terrorism, flawed? There are subsidiary questions which I will deal with under the appropriate head.

The Secretary of State’s case on the substantive issue

[3]The Secretary of State relies on four open grounds of suspicion: i) AU is, and for many years has been, a senior member of the Libyan Islamic Fighting Group (LIFG) ii) AU has engaged in fundraising, the transfer of funds and the supply of false documents for terrorism-related purposes iii) AU has been involved in the travel of individuals overseas to take part in terrorism-related activity iv) AU re-engaged in extremist and terrorism-related activity between his release from detention in March 2004 until his re-arrest on 3rd October 2005.

The decision making process

[4]In paragraphs 24 – 64 of his written closing submissions, supplemented by oral submissions, Mr Ryder submits that the Secretary of State’s decision making process was so flawed that the Control Order must be quashed under section 3(12)(a) of the 2005 Act. His submissions are superficially complex, but can, I believe, be broken down into two basic propositions: if the Secretary of State relied only on matters which had occurred and were known to state authorities (the police, the prosecuting authorities and the Security Service) when the criminal proceedings against AU concluded on 11th June 2007, the imposition of a Control Order was, and is, not justifiable; alternatively, if she has taken into account material not then known, its gist has not been disclosed to AU, so that these proceedings are fundamentally unfair. His alternative proposition is, in fact, the, by now, customary Article 6 challenge and I will deal with it under the heading of procedure. The first proposition, advanced, as far as I know, for the first time, raises a question of some importance.[5]Section 8 of the 2005 Act provides:
“8 Criminal investigations after making of control order i) This section applies where it appears to the Secretary of State – (a) that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism; and (b) that the commission of that offence is being or would fall to be investigated by a police force ii) Before making, or applying for the making of, a Control Order against the individual, the Secretary of State must consult the Chief Officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism (a) that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism; and (b) that the commission of that offence is being or would fall to be investigated by a police force iii) If a Control Order is made against the individual the Secretary of State must inform the Chief Officer of the police force that the Control Order has been made and that sub-section (4) applies iv) It shall then be the duty of the Chief Officer to secure that the investigation of the individual’s conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the Control Order has effect v) In carrying out his functions by virtue of this section the Chief Officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under sub-section (4), to the extent that he considers it appropriate to do so.…”
The purpose and importance of these requirements was expounded by Lord Bingham and Baroness Hale in Secretary of State for the Home Department v E [2008] 1AC 499, at paras 14 and 26: per Lord Bingham “14 In the submission of E, it is a fundamental premise of the 2005 Act in general, and section 8 in particular, that where there are realistic prospects of prosecuting an individual against whom it is proposed to make a control order, he will indeed be prosecuted. There is strong support for this contention. In Secretary of State for the Home Department v MB [2007] QB 415 para 53, the Court of Appeal (Lord Phillips of Worth Maltravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) described it as implicit in the scheme of the Act that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order. In its judgment in the present case the Court of Appeal ante, p 522 para 73, described it as “axiomatic” that a control order is only made when it is considered that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. Reference was made to a number of strong ministerial assurances in Parliament to this effect. The Secretary of State in her written case accepts that “the scheme of the [Act] is that control orders should only be made where an individual cannot realistically be prosecuted for a terrorism-related offence”. Thus there can be no doubt about the governing principle. Nor in my opinion can there be doubt about its importance, since the control order regime is not intended to be an alternative to the ordinary processes of criminal justice, with all the safeguards they provide for those accused, in cases where it is feasible to prosecute with a reasonable prospect of success.” per Baroness Hale “26 As to the second issue, a control order must always be seen as “second best”. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course. That is why section 8 was inserted in the 2005 Act. But there are practical difficulties: the Secretary of State does not control the prosecution process. The police investigate and the Crown Prosecution Service decide whether or not to prosecute. There are very good reasons for this division of responsibility: it injects an important element of independence and objectivity into the decision to prosecute. But it makes the task of the Secretary of State, in considering the alternative of prosecution, all the more difficult. She does not have the power to choose between the two.” It is not, however, a condition precedent to the making of a Control Order that the Secretary of State should consult the Chief Officer of police, still less, receive advice that it was not feasible to prosecute with a reasonable prospect of success: per Lord Bingham at para 16. The House of Lords neither considered, nor expressed any opinion about the situation which has arisen in this case: the imposition of a Control Order after a successful prosecution.[6]I accept, as does Mr O’Connor (in practice, if not in principle) that where the only information known about an individual is a set of facts which justifies, and results in, a successful prosecution for a terrorism-related offence and there is no reason to believe that the individual has undertaken any other terrorism related activity or will do so after he has served the sentence imposed for the crime, it would not thereafter be necessary to impose a Control Order upon him. In such circumstances, Baroness Hale’s “best” option would have succeeded: there would be no need for the “second best”. The two would truly be alternatives. But it is easy to postulate circumstances in which there is no such neat alternative. Two will not uncommonly arise, whether individually or together. The police and Security Service may have evidence and information of a variety of terrorism-related activities. One such activity may be publicly evidenced, such as the publication of a statement intended to encourage terrorism, contrary to section 1 of the Terrorism Act 2006. Given the nature of the offence, it is highly likely that there will be admissible evidence of the offence; but the Security Service may also have information, which cannot be disclosed, either because of statutory prohibition or because disclosure would be contrary to the public interest, of clandestine activity such as actual preparations for a terrorist attack, in the United Kingdom or overseas, which would justify the conclusion that it was necessary for the purposes of public protection, to impose a Control Order. Alternatively, the Security Service might obtain information that, notwithstanding his conviction and sentence, the individual had not been deterred from re-engaging in terrorism-related activities, whether of the same or a different kind. In neither case can I discern any Parliamentary intention that a Control Order should not be available to the Secretary of State if she properly concluded that it was necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make one. A Control Order is a preventative measure, even if, frequently, a highly intrusive one. There is nothing in Section 8 or the scheme of the 2005 Act to prohibit the Secretary of State from making, or the Court from upholding, a Control Order after a successful prosecution for a terrorism-related offence; and nothing to prevent the Secretary of State, in seeking to uphold a Control Order, in relying on matters that were the subject of the prosecution.[7]Mr Ryder further submits that, in relation to the matters that were the subject of the prosecution and/or known to state authorities at the time, she cannot now seek to uphold the Control Order on a factually different premise from that upon which AU was sentenced. The argument is founded upon the claimed duty of the Prosecution not to accept a basis of plea which did not permit a Court to impose a sentence which matches the seriousness of the offending. Even if the premise is accepted, it is a slender basis for the submission which Mr Ryder makes. It applies only within and to criminal proceedings. It cannot practicably be applied when, as is usually the case in cases involving national security, not all of the material available to the Secretary of State can be deployed in the criminal proceedings. Further, if the conclusion which I have expressed in the preceding paragraph is correct, there is no reason of principle or practice why the decision of an independent Prosecutor about matters arising in criminal proceedings should inhibit the decision of the Secretary of State to make an order for public protection or to circumscribe the grounds upon which she may rely in doing so.[8]For the reasons given, I reject the proposition that any aspect of the criminal proceedings circumscribes the decision making process of the Secretary of State or inhibits her from making the order. The only relevance of AU’s conviction is that he is taken to have committed the offence unless the contrary is proved: section 11(2)(a) Civil Evidence Act 1968.

Procedure

[9]It is common ground that I am bound by the decision and conclusions of the majority in the Court of Appeal in Secretary of State for the Home Department v AF AM & AN [2008] EWCA Civ. 1148, in particular, as summarised in paragraph 64(iv) – (vii):
“iv) There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed. v) Whether a hearing will be unfair depends upon all the circumstances, including for example the nature of the case, what steps have been taken to explain the detail of the allegations to the controlled person so that he can anticipate what the material in support might be, what steps have been taken to summarise the closed material in support without revealing names, dates or places, the nature and content of the material withheld, how effectively the Special Advocate is able to challenge it on behalf of the controlled person and what difference its disclosure would or might make. vi) In considering whether open disclosure to the controlee would have made a difference to the answer to the question whether there are reasonable grounds for suspicion the controlee is or has been involved in terrorist related activity, the Court must have fully in mind problems for the controlee and the Special Advocates and take account of all the circumstances of the case, including the question what if any information was openly disclosed and how effective the Special Advocates were able to be. The correct approach to and the weight to be given to any particular factor will depend upon the particular circumstances. vii) There are no rigid principles….”
. I have applied those conclusions to this hearing. Nevertheless, because, pending the appeal of AF, AM & AN to the House of Lords, the law on this topic may not be finally settled, I have also considered whether or not AU has had disclosed to him the gist of the essential features on which the Secretary of State has relied to justify reasonable suspicion that he has been engaged in terrorism related activities. I am satisfied that AU has had disclosed to him a sufficient gist of the broad grounds on which the Secretary of State relies, but by no means, all of the evidence which supports them. No reasonable interpretation of the majority speeches in Secretary of State for the Home Department v MB & AF requires that disclosure must extend to the whole of the evidential basis for the grounds of suspicion. AU has had ample opportunity to set out his case on those grounds, in detail, if he had chosen to do so. The only statements which he has made in these proceedings about the Secretary of State’s grounds of suspicion are contained in two paragraphs: paragraph 2 of his response, signed by his solicitor, to the consolidated generic statement; and paragraph 13 of his undated and unsigned statement made on 1st September 2008. Because of their brevity, they can be set out in full:
“2 (AU) accepts that he was a member of the LIFG but denies that he still is. That is a matter for the individual hearings and not for the generic hearings. However, (AU) has no knowledge of the LIFG’s activities since at least his arrest in 2005, other than that which is in the public domain.” “13 In brief, in case there is any uncertainty, I repeat that I am not a risk to national security. Before I was detained in 2002 I involved myself in activities intended to support the diaspora of Libyans abroad; the LIFG was not a proscribed organisation when I did so. In so far as any of those activities could be constituted as unlawful, I pleaded guilty, albeit with considerable anxiety. Between my release in 2004 and my arrest in 2005 I did not undertake any unlawful activities. I am aware of the allegations made about the contents of the CD - ROM and the memory stick found in my house as long ago as 2005. These were not mine and I did not know that they were in my house. Other people had access to my house and used the laptop. In any event they related to the LIFG and not to me personally. Nothing I have done since all the circumstances were considered by the Crown Court, nor indeed, nothing I did following my release from SIAC can, I believe, support an allegation that I have been a risk to national security, nor that even more, I could today be so considered.”
Mr Ryder invited me to read the prepared statement read by his solicitor on 11th December 2005 in the course of police interviews for the purpose of the criminal proceedings (3/782(iii) – 782(xix)). I have done so. The parts of the statement relevant for present purposes assert the following: i) he was not in any way involved in “organising, directing or planning or arranging for terrorist activity” (3/782(v)) ii) he had a long involvement with the LIFG, but in the light of its proscription no longer considered himself to be a member (ditto) iii) until his arrest in 2002, he was an active member of the LIFG (3/782(vi)) iv) neither he nor others, to the best of his knowledge and belief who had sent money to persons involved with the LIFG anywhere in the world, knew or would have approved of those monies going to individuals concerned with terrorism; and to the best of his knowledge and belief none of the recipients of the money were terrorists and the money was never going to be used for terrorist purposes: (3/782(vi) and (vii)) v) he kept accounts of the money that was sent out on his computer (3/782(vii) and (viii)) vi) he sent money to Saadi Naseem, but did not believe that he had anything to do with terrorism (3/782(ix)) vii) he obtained fake passports for members of LIFG and their families (3/782(xi)). He also gave an account of his dealings with other individuals about whom he had been questioned, including Abu Qatada and Yakas. I will make no further reference to these answers, because I have not taken the small part of the Secretary of State’s open case which touches upon them into account in deciding any of the issues which I have to resolve.[10]As will be apparent from that full recitation of AU’s answer to the Secretary of State’s case, it is threadbare. I have not asked, and do not know, what, if any, further instructions have been given by or on behalf of AU to the Special Advocates under the cloak of privilege; but if no further instructions have been given, the inability of the Special Advocates to do anything other than probe and test the evidence adduced in the closed session by the Secretary of State (with their customary skill and rigour) is not due to any deficiency or unfairness of procedure, but to AU’s unwillingness to state, in detail , what part, if any, he has played in the affairs of the LIFG in the United Kingdom and overseas and of those he knows or believes to be its members. The Secretary of State’s open case makes it clear that that is the focus of her case. He would, of course, have run the risk that a detailed account might be contradicted and disproved by closed evidence but if he had, in truth, done nothing to give rise to reasonable grounds of suspicion if the whole truth were known, he could have provided instructions to the Special Advocates or evidence to the Court which would demonstrate that the suspicion previously held was no longer well founded. Something very similar to this occurred in a SIAC appeal, Sihali v Secretary of State for the Home Department[2007] UKSIAC 38/2005 (14th May 2007).[11]For reasons explained in the closed Judgment, I am satisfied that the Secretary of State has proved, to the criminal standard, many of the facts upon which she relies to substantiate her grounds for reasonable suspicion. I can conceive of no answer which AU could have given which would have been likely to alter significantly the view which I have formed about them. As it happens, he has made statements about two of them: (by clear implication from his statement at 3/782(vi) that until his arrest in 2002 he was an active member of the LIFG), that he was not thereafter; and in paragraph 13 of his statement of 1st September 2008, that the CD – ROM and memory stick found at his house in 2005 were not his and that he did know that they were there. I am satisfied to the criminal standard that both the implied and the express statements are false. The only potentially credible response which AU might have to the material upon which I have reached that conclusion would be to retract the two statements – hardly likely to demonstrate that the suspicion which the Secretary of State has formed about these matters is not reasonably grounded.[12]For the reasons given, I am satisfied that the minimum requirements of procedural fairness have been afforded to AU in these proceedings.

Substantive

[13]Section 1(3) of the Prevention of Terrorism Act 2005 authorises the imposition by a Control Order of obligations considered “necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.” “Terrorism-related activity” is defined in Section 1(9) as:
“a) the commission, preparation or instigation of acts of terrorism; b) conduct which facilitates the commission, preparation or instigation of such act, or which is intended to do so; c) conduct which gives encouragement to the commission, preparation or instigation of such acts or which is intended to do so; c) conduct which gives support or assistance to individuals who are known or believe to be involved in terrorism-related activities…”
. Section 2(1) permits the Secretary of State to make a Control Order against an individual if she “a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activities; and b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a Control Order imposing obligations on that individual.” “Act of terrorism” is defined by Section 15(1) as including “anything constituting an action taken for the purposes of terrorism, within the meaning of the Terrorism Act 2000…( see Section 1(5) of that Act)” and “terrorism” “has the same meaning as in the Terrorism Act 2000…(see Section 1(1) – (4) of that Act)”. “The public” includes the public or any section of the public in a country or territory other than the United Kingdom. By virtue of Section 1(2) and (4) of the Terrorism Act 2000, an act of terrorism means the use or threat of action which “a) involves serious violence against a person, b) involves serious damage to property c) endangers a person’s life other than that of the person committing the action…”. whether inside or outside the United Kingdom: Section 1(4). By Section 1(5) “….a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation”. “a) involves serious violence against a person, b) involves serious damage to property c) endangers a person’s life other than that of the person committing the action…”.[14]I now turn to the four grounds of suspicion on which the Secretary of State relies, in the order in which I set them out in paragraph 3 above. i) AU admits that he was an active member of the LIFG until his arrest in 2002. The assessment that he was a senior member is based upon material which I have analysed in the closed Judgment. It is, however, supported by the contents of the CD – ROM and memory stick recovered at his house by police after his re-arrest on 3rd October 2005: 1/3/9 38 – 40 and 1/3/10 42 – 49. The content of both suggests that they were written by one or two senior LIFG figures, situated outside the United Kingdom, with direct access to senior LIFG and AQ figures in Pakistan/Afghanistan. The “starting strategy” described in the letter on the memory stick at 1/3/10/186 refers to a draft “for reassembly and reconciliation of the unit” presented by Abu Laith, the now deceased LIFG leader who announced the “merger” of the LIFG with AQ on 3rd November 2007 with Atiyah Al Rahman, a senior emissary of Osama Bin Laden. It makes proposals for the appointment of a leader and for adding to the “legislative council” (clearly an important LIFG body), to which (AV) (a senior UK LIFG figure) and Abu Laith are said to belong. It is the kind of proposal which would be presented by one leader or group of leaders to another. I am satisfied to the criminal standard that the memory stick did belong to AU. The inference that he was, at least, one of the senior figures to whom it was addressed is irresistible. The contents of the letter on the CD – ROM are more important to establish date and purpose than to demonstrate the status of the recipient. Reference is made to the arrest and deportation of “our brothers Al Sadiq and Al Mawlawi”. The first is clearly Abdullah Al Sadeq and, by context, the second must be Abu Mundhir. Both were deported to Libya in March 2004. At 1/3/9/181, the letter proposes a link through whom “requests, requirements, suggestions and advice” can be sent and through whom “suggestions and opinions about what we suggest” can be received. This fits in with the role of the UK LIFG as provider of funds to those situated abroad. One, at least, of the purposes of UK LIFG activity is identified at 1/3/9/182: the provision of passports to fill a gap left by the lack of response to “the brothers in Syria to take the passports from those who want a martyred operation”. ii) Participation in fundraising and the provision of money and documents for terrorism-related purposes is proved by AU’s plea of guilty to an offence contrary to Section 17 of the Terrorism Act 2000. iii) I am satisfied to the criminal standard that AU did transfer money to Fadhal Saadi on 8th November 2002, as the Prosecution alleged in paragraphs 52 -55 of their opening note in the criminal proceedings (3/6/782(xli) – (xlii)). SIAC records that he admitted that he made the transfer: paragraph 18 of the open Judgment in M at 1/3/227. I am satisfied on balance of probabilities, that AU knew or believed that the money was for a terrorism-related purpose. iv) Re-engagement in extremist and terrorism-related activity between 18th March 2004 and 3rd October 2005 is illustrated by the contents of the CD – ROM and memory stick referred to above. I am satisfied to the criminal standard that this ground is proved. These findings are based on the open and closed material, as is set out in the Closed Judgment.

Lawfulness

[15]The Control Order served on AU on 4th April 2008 imposed the following obligations on him: the wearing of a tag; a sixteen hour curfew in the basement flat in Hackney in which he was already required to reside by SIAC bail conditions; daily reporting to the monitoring company on the first occasion on which he left the flat at the end of a curfew period and on the last occasion on which he returned to it before a curfew period began; a prohibition on association or communication with twelve named individuals (all Libyan nationals upon whom notice of intention to deport for conducive reasons based on national security grounds had been served); a prohibition on visitors other than his wife and children, nominated legal representative, members of emergency healthcare and social services operating in their professional capacity, any child under ten and any person required to be given access under the tenancy agreement or for the maintenance of fixed services and any other individual approved by the Home Office after their name, address, date of birth and photographic identification had been supplied – only one such visitor was permitted in the flat at any one time; a prohibition on pre-arranged meetings outside the flat, save for approved health welfare academic training or employment purposes and attendance at prayers at a mosque; an obligation to permit persons authorised by the Secretary of State or by the monitoring company to enter and search the flat, to remove any item to ensure that it did not breach the obligations imposed by the Order, to install installations considered necessary to ensure compliance with those obligations and to take a photograph of AU; a prohibition on communications equipment other than a landline telephone; the requirement to attend only one mosque of his choosing and as approved by the Home Office; a geographical boundary encompassing most of Hackney; a prohibition on maintaining more than one bank account or transferring money, documents or goods overseas and more than £500 within the United Kingdom without Home Office consent; the surrender of his passport and any UK travel document; a requirement to notify the Home Office of any intended departure from the United Kingdom at least 24 hours before the intended departure time; a prohibition on entering any airport or seaport or railway station providing access to an international rail service without Home Office permission; a prohibition on undertaking a training or academic study course or employment without prior notification to the Home Office and its approval. Detailed modifications have, from time to time been made in the Order. One of major significance was notified on 29th August 2008: with the agreement of AU, he was thereafter required to live at a three bedroom house in West London and his boundary was altered to encompass much of Ealing. On 19th September 2008 the boundary was extended so as to permit AU to take his youngest children to their primary school, situated just outside the eastern edge of the boundary. The precise breakdown of the curfew hours has also, from time to time, been altered to assist AU to take the children to that school and to collect them from it, but the total remains sixteen hours.[16]AU’s wife has provided a detailed statement about the impact of the Order on her and her family dated 12th November 2008. In addition, Renee Cohen, a psychotherapist and independent social worker has produced a report dated 10th November 2008 about the impact of the Order on AU’s wife and family. I have no reason to doubt any of the factual statements made in either document. I accept that the Order constitutes a serious intrusion into the enjoyment of family life by both AU and his wife and children. Three factors have caused particular difficulties: AU’s wife is pregnant and expects to give birth to their fourth child in January 2009; his elder daughter started her secondary school in Mill Hill in September; and AU’s wife wishes to keep their tenancy of their home in Edgware. Special arrangements are clearly required to accommodate the arrangements for AU to give birth to her fourth child. Susan Hadland, the civil servant whose team is responsible for overseeing AU’s Control Order, recognises this and, in a letter dated 12th December 2008 has set out temporary modifications to deal with it which I understand to be acceptable. Until now, AU’s wife has been responsible for driving the elder daughter to school. For a time immediately before and after the birth, she will not be able to do so. Again, this problem has been accommodated by the Secretary of State’s agreement to arrange and pay for a taxi or mini cab, driven by a female driver, for a two week period, to make the journeys. I understand this, too, to be acceptable. As far as AU’s wife’s wish to keep the tenancy of the house in Edgware and her practice of visiting it regularly, to ensure that it is secure and in good condition is concerned, this cannot affect the lawfulness of the Control Order.[17]In paragraph 11 of my decision on AU’s appeal on 31st July 2008, cited in paragraph 1 above, I set out, in general terms, the impact of the Control Order on AU while he was required to live in Hackney. AU was saved from social isolation by the regular visits of his wife and children, but the circumstances were clearly far from ideal. They have since improved, as AU’s wife acknowledges. She and the children are now able to, and, I understand, do in fact, live with AU at the West London house. Miss Cohen observes that, even so, the family remains socially isolated. This is, in significant part, because those who might visit them are unwilling to comply with the obligation to provide name, address and photograph and to seek Home Office approval. I am told that AU’s mother, who lives nearby, will not seek approval as a matter of principle, even to the extent of refusing to permit her daughter to provide a photograph of her to the Home Office. AU’s mother is entitled to stand on that principle, but, to the extent that the social isolation of her daughter and son in law is thereby increased, it is not a necessary consequence of the obligation imposed by the Order. It can easily be overcome. Miss Cohen also observes that adjustments to the current boundary and curfew hours which would permit AU to engage in more outdoor activities with them should be considered. I agree, and, having heard Miss Hadland, have no reason to doubt that reasonable requests which could be accommodated without risk to public security would be entertained by her unit. The possibility that the obligations might be adjusted in this way does not mean that, for that reason, the current obligations amount to a deprivation of liberty and so are unlawful.[18]In determining whether or not AU has been, and is being, deprived of liberty, I apply the summary of the analysis by The House of Lords in Secretary of State for the Home Department v JJ [2008] 1AC 385 which I set out in paragraph 21 of my Judgment in AH [2008] EWHC 1018 (Admin): i) There is no “bright line” separating deprivation of liberty from restriction on liberty: per Lord Bingham paragraph 16 p652b, per Baroness Hale paragraph 58 p664g, per Lord Brown paragraph 91 p675f. In the language of the Strasbourg Court, borderline cases fall within the area of “pure opinion”: Guzzardi –v- Italy 3EHRR333 paragraph 93. ii) The test is objective: the task of the Court is to assess the impact of the measures “on a person in the situation of the person subject to them”: per Lord Bingham paragraph 15 p651f, per Baroness Hale paragraph 63 p666d-e, and Lord Brown’s conclusion at paragraph 105 p678h-679a. Mr Starmer accepts that the same measures cannot amount to deprivation of liberty in one case, but do in another, simply because of the effect on the morale or mental health of the individual controlled person. iii) Many relevant factors must be taken into account, but the starting point or “core element” is the length of the curfew: per Lord Brown at paragraph 108 p608b-c and, in the Secretary of State for the Home Department v E[2007] 3WLR 720, per Lord Bingham at paragraph 11 p725f-g and per Baroness Hale at paragraph 25 p730b. iv) Social isolation is a significant factor, especially if it approaches solitary confinement during curfew periods: per Lord Bingham at paragraph 24 in JJ p656c and per Baroness Hale at paragraph 60.[19]No curfew period longer than sixteen hours can be imposed without deprivation of liberty. This case is, therefore, axiomatically at the outer limit of what can lawfully be imposed by a non-derogating Control Order. In Secretary of State for the Home Department v AP [2008] EWHC 2001, Keith J decided that a Control Order with a sixteen hour curfew, which had the practical effect of cutting off AP from his family did deprive him of liberty and so was unlawful. I am told that the Secretary of State is seeking to appeal his decision. For what it is worth, on the facts summarised by him, I would have reached the same answer. On the facts of this case, I am satisfied that AU is not now deprived of liberty because he is able to live with his family in accommodation which is adequate for all of them. The continuing social isolation of the family results, not from the obligations imposed by the Control Order, but from the unwillingness of friends and associates to seek Home Office approval for visits to the house, of which AU’s mother is a striking example. The issue was more finely balanced while he was at the basement flat in Hackney because conditions did not permit his wife and children to live with him permanently. Nevertheless, they enjoyed considerable access to him and thereby greatly mitigated the social isolation which he would otherwise have experienced. Whether or not, during that time, he was deprived of liberty is a matter of judgment. My judgment is that his circumstances came as close as was possible to the point at which he must be adjudged to have been deprived of liberty, but did not quite cross it. I uphold the Order, when imposed and now, as lawful.

Necessity

[20]Paying the appropriate degree of deference to the Secretary of State’s decision as to the need for a Control Order and the detailed obligations imposed (Secretary of State for the Home Department v MB [2007] QB415 paragraphs 63 – 64), I am satisfied that the Secretary of State’s decision to make, renew and continue the Order are not flawed. She was entitled to conclude that it was necessary to impose the Order to inhibit AU from resuming an active and senior role in the LIFG. For the reasons explained in the generic Judgments, the LIFG continues to pose a threat to the national security of United Kingdom and to the public of Afghanistan, Pakistan, and perhaps Iraq and Libya. AU was not deterred by his arrest and detention with a view to deportation in 2002 from resuming an active and leading role in the LIFG after his release in March 2004 and has not told the truth about it. There is no credible information that AU has decided not to resume his activities if the Control Order is lifted[21]I am also satisfied that the decision of the Secretary of State to impose and maintain the four challenged obligations is also not flawed. i) Curfew: For the reasons set out above and in the closed Judgement, I am satisfied that the Secretary of State was entitled to impose the longest curfew period which did not deprive AU of his liberty. That remains the position today. Whether or not it continues to do so will depend upon developments within the LIFG and AU’s reaction to them. ii) Prior notification of visitors: The obligation is a proportionate means of dealing with the reasonable concern of the Secretary of State to inhibit AU’s opportunity for meeting, at his home, other members of the LIFG and others who may pose a risk to public security. For the reasons explained above, there is no good reason why those who do wish to visit AU’s home should not provide, or allow to be provided, the details necessary to permit them to do so. Miss Hadland has accepted that the condition requiring prior approval of the visit of children over ten needs to be reconsidered, to ensure that M can have female company of her own age in the house. iii) Prior notification of pre-arranged meetings outside the house: This a proportionate means of inhibiting meetings between AU and members of the LIFG and others who may pose a risk to public security. iv) Boundary: The particular difficulty which will arise in January 2009 has been addressed by the Secretary of State’s letter dated 12th December 2008.

Conclusion

[22]I uphold the Control Order and its individual obligations.

Cited in 6 later judgments