Secretary of State for the Home Department v AM [2009] EWHC 572 (Admin)

[2009] EWHC 572 (Admin)Case No PTA 49/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 March 2009
Before
MR JUSTICE KEITH
Between
The Secretary of State for the Home DepartmentApplicantAMRespondent
Mr Max Hill QC and Ms Kate Grange (instructed by the Treasury Solicitor) for ApplicantMr Timothy Otty QC and Mr Tom Hickman (instructed by Arani, Solicitors) for RespondentMr Mohammed Khamisa QC and Ms Shaheen Rahman (instructed by the Special Advocates’ Support Office) appeared as special advocates for RespondentHearing Hearing date: 26 February 2009
Judgment

Introduction

[1]On 20 June 2007, Collins 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 AM. The control order was made the following day, and was renewed for a further twelve months on 17 June 2008. The hearing at which the court will be reviewing the need for the control order and the obligations under it under section 3(10) of the Prevention of Terrorism Act 2005 (“the Act”) is due to begin on 22 July 2009. That is more than two years after the control order was originally made. It is unnecessary to rehearse the reasons for that here, but that lapse of time is longer than anyone could have envisaged.[2]An appeal relating to some of the obligations imposed on AM by the control order was heard by Collins J on 11 September 2008. That resulted in some of the obligations imposed on AM being modified. AM subsequently appealed(a) under section 10(3)(b) of the Act against the Secretary of State’s refusal to vary further some of the obligations imposed on him, and(b) under section 10(1)(b) of the Act against her subsequent modification of some of the obligations imposed on him without his consent. This is the court’s open judgment following the hearing of that appeal. There is a confidential annex to this judgment which contains information which would have been included in the judgment but for the fact that the information is either subject to reporting restrictions or would tend to identify AM. There is a closed judgment as well, since the Secretary of State has sought to rely on material which has been withheld from AM and his legal team.[3]AM is 20 years old. He is single. His parents and sisters live in a town in the north of England, and although AM may not have been living with them immediately before the control order was made, he lived in the same town, and saw his family regularly. Since the making of the control order, he has had to live elsewhere in the same town, and his opportunities to visit his parents’ home have been severely curtailed. He was until relatively recently employed in a neighbouring city, and he has been offered employment within a government department which was due to commence shortly after the hearing of the appeal if Home Office approval for his acceptance of that offer was given. The Home Office has sought further information from AM in order to inform its consideration of whether to give its approval. In addition, on the Saturday following the hearing of the appeal, AM was due to start a short course over a number of Saturdays at a local university. The Home Office was exploring ways of permitting AM to do that without having unrestricted access to the internet.[4]It is, of course, not possible in this judgment to spell out the basis on which AM is suspected of involvement in terrorism-related activity, but a document headed “Summary of Open National Security Case” gives a flavour of the case against him. The material part of the document shows that the assessment of the Security Service is as follows:
“(a) [AM] travelled to Pakistan in 2004 and 2005, where he is assessed to have attended terrorist training camps. It is assessed that he may have received training in firearms, explosives and other techniques useful to a terrorist. (b) [AM] has links to Mohammed Al Ghabra. The Security Service assesses that if [AM] were to establish contact with Al Ghabra, there is a significant risk that Al Ghabra may assist [AM] in facilitating his travel abroad for terrorism-related purposes. (c) [This paragraph is contained in the confidential annex]. (d) [AM] holds anti-British views and is contemptuous of the British authorities. He demonstrates this [by] attempting to breach the obligations of his control order. (e) [AM] would seek to engage with [Al-Qa’ida] if not subject to a control order. (f) [AM] may also seek to travel abroad and establish contact with Al-Qa’ida affiliated extremists and may also engage in terrorism-related activity in the UK.”
It should be said that AM has consistently denied any involvement in terrorism-related activity, and has responded to the allegations against him as best he can in a series of witness statements.[5]The control order which the Secretary of State made against AM was a non-derogating control order, i.e. it was one which imposed obligations on AM which were not incompatible with his right to liberty under Art. 5 of the Convention. Those obligations were originally not as onerous as those in some of the other control orders the court has encountered, but they have become progressively more stringent with the passage of time. It will be necessary to chart the modifications which have been made to some of the obligations in due course, but at present AM is required to live at a specified flat, and is permitted to visit his parents twice a week at times which have previously been notified to the Home Office. He has to permit his flat to be searched at any time. He is subject to a curfew between 7.00 pm and 7.00 am, i.e. 12 hours a day, except for one evening a week when he is permitted to stay out until 2.00 am for the sole purpose of going clubbing. He has to wear an electronic monitoring tag at all times. Subject to certain exceptions, he has to notify the Home Office of any visitors to his flat, and he has to get prior approval from the Home Office if he wants to meet anyone outside his flat. He is not allowed to use the internet, and quite detailed obligations have been imposed on him to ensure that he does not have access to it. There are other restrictions but these are the principal ones.

The relevant principles

[6]In view of what Mitting J said in AV and AU v Secretary of State for the Home Department [2009] 1 All ER 439 at [7], the court is not entitled on an appeal under section 10(3)(b) of the Act (or on an appeal under section 10(1)(b) of the Act for that matter) to question either the reasonableness of the grounds for suspecting that the controlled person has been involved in terrorism-related activity, or the necessity to make a control order against him to protect the public from a risk of terrorism. Since that is the effect of section 10 of the Act, the corollary is that the court should not – save perhaps in an exceptional case – proceed on the basis that anything more than reasonable grounds for suspecting the controlled person of involvement in terrorism-related activity exists, because that would open up the hearing of an appeal of this kind to a consideration of the wide-ranging issues which arise when the control order and the obligations imposed under it are reviewed under section 3(10) of the Act.[7]The critical function of the court on such an appeal is to scrutinise the necessity for those of the obligations imposed on the controlled person to which the appeal relates. It is not enough for the Secretary of State to show that the obligations are useful, reasonable or desirable. That scrutiny must be intense, though since the Secretary of State is better placed than the court to decide what measures are necessary to protect the public against the activities of a terrorist suspect, the court will accord a degree of deference to the Secretary of State’s assessment of what is necessary. That was what was said in Secretary of State for the Home Department v MB [2007] QB 415 at [64] and [65], and although the Court of Appeal was referring to the court’s function on a review under section 3(10) of the Act, these considerations apply just as much to appeals under section 10. Moreover, the court’s scrutiny must comply with AM’s right to a fair trial under Art. 6 of the Convention. Since the court has been provided with evidence which has been withheld from AM and his legal team on national security grounds, but on which the special advocate for AM has been able to comment, the weight (if any) which the court should attach to that evidence has to be informed by the Court of Appeal’s decision in Secretary of State for the Home Department v AF, AM and AN [2008] EWCA (Civ) 1148 (an appeal from which is currently being considered by the House of Lords) and the recent decision of the European Court of Human Rights in A and ors v The United Kingdom (application no. 3455/05).[8]There is one other principle which I believe should inform the court’s approach to appeals of this kind. Anonymity is invariably ordered when control orders are made. That is because it is thought to be inappropriate for the fact that someone is subject to a control order to be made public. The arguments in favour of that were explained by Ouseley J in Times Newspapers Ltd. v Secretary of State for the Home Department [2008] EWHC 2455 (Admin) at [5]. This case is no exception: an order was made for AM to be anonymised. If it is thought to be appropriate to prevent it being known that someone is subject to a control order, the obligations imposed by the control order should at least try to prevent the controlled person from being forced to disclose that he is the subject of a control order or to act in such a way that his status as someone who is subject to a control order might become known. There may be some cases in which that is impossible to achieve, but all reasonable attempts to achieve it should nevertheless be considered. With all of this in mind, I turn to the obligations which are the subject of this appeal.

The curfew

[9]Throughout the lifetime of the control order, AM has been required to live in the same flat, but the length of the curfew has progressively increased. Initially the curfew was between 2.00 am and 5.00 am, i.e. for 3 hours a day. But on 17 December 2007, that was increased to 8 hours a day, i.e. from 11.00 pm to 7.00 am. After a draft of this judgment was sent to the parties for any typographical errors to be corrected, I was told what I had not been told before – namely that AM appealed against the curfew, not only because he wanted to have it relaxed so that he could stay out until 4.00 am one evening a week in order to go clubbing, but also to have the length and times of the original curfew restored. On the hearing of that appeal, Collins J decided that it was appropriate to relax the curfew to enable AM to go clubbing, but he took the view that it should be relaxed only to the extent that AM could stay out until 2.00 am on the one evening a week he went clubbing. Collins J, however, required him to give the Home Office what he described in his judgment as “a precise indication of where he was going”. The order which was subsequently drawn up to put flesh on that requirement resulted in the Secretary of State modifying the curfew obligation so that on one evening a week it would begin at 2.00 am, provided that the Home Office was notified of the club AM intended to go to at least 24 hours beforehand, and had confirmed receipt of that notification.[10]On 1 December 2008, AM’s solicitors requested the Home Office to extend the time that he could stay out on the one evening a week he went clubbing to 4.00 am as had originally been requested. It was said that the 2.00 am deadline had turned out to be impractical because clubs do not usually open until about 11.00 pm, and since the clubs which AM wanted to go to were in places which it would take some time for him to get to from where he was living, that would not give him sufficient time at the club before he had to leave it if he was to be back in his flat by 2.00 am. On 9 December 2008, the Home Office refused that request, and that request is challenged on this appeal, notice of which was lodged on 23 December 2008.[11]The length of the curfew to which AM is subject save for the one evening he goes clubbing has very recently been increased from 8 hours a day to 12 hours a day, i.e. from 7.00 pm to 7.00 am. That modification was made only a few weeks ago on 4 February 2009. The catalyst for it was that on 27 January 2009 AM’s solicitors notified the Home Office that AM no longer had the job he previously had. The view had originally been taken that while AM was working, he would not have been able to engage in terrorism-related activity during working hours, and that since he had to have some time outside working hours for social interaction, it was appropriate for the curfew to begin towards the end of the evening. However, once AM became unemployed, he had much more time to engage in terrorism-related activity. Accordingly, the view was taken that it had then become necessary to increase the length of the curfew in order to reduce the additional time in which he would be able to engage in terrorism-related activity.[12]On 9 February 2009, AM’s solicitors requested the Home Office to restore the original 8 hour curfew between 11.00 pm and 7.00 am. The Home Office refused that request on 13 February 2009, but made two noteworthy comments. First, AM’s solicitors were told that if AM wanted the Home Office to consider changing the times of the curfew rather than reducing its length, such a request would be considered in the usual way. Secondly, AM’s solicitors were reminded of what they had previously been told when the curfew had been increased to 12 hours, namely that if AM returned to employment, the Home Office would consider whether the obligations under the control order (including, of course, the curfew) remained necessary and proportionate.[13]AM wished to appeal under section 10(3)(b) of the Act against the refusal of his request to restore the original 8 hour curfew, and in order to enable that appeal to be heard with the appeal which had been lodged on 23 December 2008, his solicitors sent an amended version of the original notice of appeal to the Administrative Court Office by e-mail on 20 February 2009 because that was the advice which they say they had received from the Administrative Court Office. The amended version sought such modifications as had been set out in a letter from AM’s solicitors to the Treasury Solicitor also dated 20 February 2009. In order to ensure that this appeal is valid, I give permission under rules 76.12 and 52.8 of the Civil Procedure Rules for the notice of appeal to be amended in the form of the amended version sent to the Administrative Court Office, and to the extent that it is necessary to do so, I abridge the time for the hearing of the appeal. The Secretary of State did not take any technical point on whether the hearing of the appeal was valid.[14]The restoration of the 8 hour curfew. AM’s proposals have changed in the course of the last few weeks. As I have said, his solicitors in their letter of 9 February 2009 requested that the curfew be limited to 8 hours between 11.00 pm and 7.00 am. However, that was not quite what they asked for in their letter of 20 February 2009. There they asked for the curfew to be limited to 7 hours from midnight to 7.00 am, but in view of the Home Office’s amenability to the possibility of changing the hours of the curfew without reducing its length, their fallback position was that if a 12 hour curfew was to remain, it should be from midnight to noon. However, at the hearing of the appeal, they went back to asking for the curfew to be limited to 8 hours rather than 7 hours, but to be between midnight and 8.00 am.[1]The draft of the judgment which was sent to the parties for any typographical errors to be corrected contained the following statement:
“The fallback position of a 12 hour curfew from midnight to noon is no longer pursued, presumably because that would interfere with the new job AM wants to start.”
Mr Timothy Otty QC for AM has since informed the court that this is incorrect. The fallback position was still being pursued. That does not accord either with my notes or my recollection, but it would not be right for me not to consider the fallback position simply because Mr Otty and I were at cross-purposes. I acknowledge that a 12 hour curfew which prevents AM from going out in the evenings will increase his sense of social isolation. He cannot – at least on weekdays – spend time outside his flat with those of his friends who work during the day. He cannot therefore do some of the things which he says he would only do with his friends, like going to the cinema or playing pool or going to the pub. Moreover, he claims that he has got into the habit of collecting his supper from his parents’ home, but he will not be able to do that if his curfew begins at 7.00 pm because he says that his mother does not prepare food until about 8.30 pm. In addition, with only two of his friends knowing that he is subject to a control order – at least that is what he claims – there is the problem of having to explain to his other friends why he cannot go out with them in the evenings, and if he happens to be with them during the day (which could well occur on days when they are not working) why he has to be back at his flat by 7.00 pm. He will either have to lie to them or be forced to disclose that he is subject to a control order. It has to be said, though, that this problem is going to arise – to a greater or lesser degree – whenever someone is subject to a curfew. If AM’s curfew was reduced to 8 hours, whether it started at 11.00 pm or midnight, there may well still be times when AM would have to make an excuse to leave his friends and get back to his flat. There is one matter which can be left out of the equation, and that is how the length of his curfew has altered over time. It is true that there have been times when AM was not subject to a curfew at all – or at any rate only a limited one – despite being suspected of terrorism-related activity. But there could have been no question of a curfew being imposed before the control order was made, and although his curfew was originally for only 3 hours, I know now that AM’s appeal against the increase in its length to 8 hours was dismissed. Moreover, the Home Office has explained why the curfew has recently been increased from 8 hours to 12 hours, and thus the progressive increases in the length of the curfew is not of itself a reason to suppose that a curfew as long as 12 hours is not needed. Mr Otty points to an illogical feature about increasing the length of the curfew while AM is not working. In his previous job, he was not working at weekends, and was presumably entitled to holiday leave. On the days when he was not working, the Home Office was content for his curfew to remain at 8 hours, even though he had a greater opportunity on those days to engage in terrorism-related activity. But there is a big difference between the likelihood of someone engaging in terrorism-related activity when they are not working full-time and the likelihood of someone doing so when they are. The fact that the Home Office had not thought it necessary in the past to increase AM’s curfew to 12 hours on any day when he was not working does not make the recent increase to a curfew of 12 hours every day – on the basis that every day is a day when he is not working – illogical. - Ultimately, though, one comes back to whether a curfew of 12 hours a day when AM is not working is necessary for the protection of the public. In my opinion, it is. There is some evidence that AM may have tried (a) to get access to the internet and (b) to conceal downloading of extremist literature. As for (a), despite a prohibition on him having any equipment capable of connecting to the internet, an Xbox 360 games console was discovered at his flat when it was searched on 29 January 2009. Since the hearing of this appeal, I have been informed that AM claims that the police knew for six weeks before it was seized that he had it. I do not know whether that is true or not. I do know that although AM denies being aware of its capability to connect to the internet, the Home Office says that it has such a capability, even if no open evidence was adduced to this effect.[15]As for (b), there is evidence that AM was with one of his sisters when on 20 September 2008 she went to a retail outlet in the town where they live, which sells computers and computer equipment, and ordered two new hard drives for a computer. Since she had previously asked the owner of the outlet “how to clean a hard drive”, and had not mentioned anything about the hard drive having a virus (which is the usual reason for wanting to remove data from a hard drive), there is at the very least the possibility that she might have been wanting to wipe any existing data off the hard drive; and since it was AM who had called a few days later to collect the hard drives which his sister had previously ordered, there is at the very least the possibility that – despite a prohibition on him using any equipment capable of connecting to the internet – AM had data on the computer at his parents’ home (such as extremist literature) which he wanted to remove. AM claims that his sister wanted to change the hard drives only to protect the privacy of personal information held on them, and that he had returned to the outlet only in order to collect a refund because he had understood that the outlet had not been able to obtain the hard drives which his sister had ordered. In that connection, his solicitors’ request to be provided with copies of the notes made by the police officers who interviewed the owner of the outlet of what he had originally told them has not yet been met.[16]AM’s denial of any involvement to gain access to the internet or to destroy evidence of any interest in extremist literature on his part is an important factor to be taken into account. But some suspicion nevertheless remains of attempts on his part to act in a way which would infringe the prohibition of his possession or use of equipment capable of connecting to the internet. That suspicion serves to increase the concern about what AM would do if he was able to spend more time away from his flat when his opportunities to engage in terrorism-related activity were not limited by having to be at work, especially as it is said that AM was thought to have been meeting people linked to extremism prior to the renewal of the control order in June 2008. It is true that(a) AM and his legal team have not been informed who they are,(b) there is no allegation in the open materials that AM knew of their links to extremism, and(c) there is no allegation in the open materials that AM has been meeting them since the renewal of the control order. Indeed, if the allegation relates to AM’s meeting with Yusef Wasway, who AM has since June 2008 been prohibited from associating or communicating with in any way, AM’s case is that Yusef Wasway is a long-standing friend of his whose alleged links with extremists he was unaware of. However, that prohibition featured in the appeal to Collins J, and Collins J confirmed the prohibition.[17]I have not overlooked Mr Otty’s point that the Home Office had not identified precisely what AM would be more likely to do with the additional time on his hands if the length of his curfew was not increased or if it only started at midnight. But the additional time – especially time in the evening – could make him more likely to attempt to renew his links with people associated with extremists. That was what Goldring J (as he then was) had in mind when he said in AF v Secretary of State for the Home Department [2007] EWHC 2001 (Admin) at [45] that the Secretary of State was “entitled to conclude that the less time the [controlled person] is outside his home, the greater the reduction in risk”, and that “being out late in the evening provides more opportunities to attend meetings and associate with extremists.” Nor have I forgotten that the curfew was increased to 12 hours on the day following the hearing before me which addressed the nature of any further disclosure which should be made to AM and his legal team for the purpose of the section 3(10) review hearing and the future timetabling of that hearing and the present section 10 appeal. On that occasion, the court fixed the section 3(10) review hearing for the first available date as counsel were available on from 2 June 2009. It is said that if the court had been aware that the following day the curfew would be increased to 12 hours, it might have gone along with AM’s wish that the section 3(10) review hearing be fixed for a date in March 2009. However, the date was fixed on the basis that it was important that there be continuity of counsel, and that bringing the hearing forward to March (it having previously been fixed for the first available date after 4 April 2009) would result in the unavailability of counsel for the Secretary of State and the intelligence officer who it was proposed to tender for cross-examination. In the circumstances, had I known then of the proposed increase in the length of the curfew, it would not in the final analysis have altered the date of the section 3(10) review hearing. It would merely have confirmed my view that the section 10 appeal was too pressing for it to wait until then as well. All in all, I have concluded that the increase in the length of the curfew while AM is not employed – and making it start at 7.00 pm – is a necessary and proportionate response for the time being to the need to protect the public from the risk that AM might engage in terrorism-related activity now that he temporarily has more time on his hands. The extension to 4.00 am. The starting point here is that Collins J thought that AM should be permitted to stay out late one evening a week to go clubbing. In view of that, it is said that the time his curfew should begin on such an evening should be late enough to enable AM to do that which Collins J gave him permission to do. Not only cannot he do that because he would not have sufficient time at the club to enable him to get back to his flat by 2.00 am. He would also have to lie to his friends about why he had to get back early or be forced to disclose the fact that he is subject to a control order. The Home Office question whether AM has any intention of going clubbing: not once since the curfew was relaxed in September 2008 has he notified the Home Office of his intention to do so. AM says that having to return to his flat by 2.00 am makes it pointless to go clubbing at all, and that there are not any good clubs in the town where he lives. But if telling his friends that he has to go home early is a problem, that could apply to a curfew which begins at 4.00 am, albeit not as obviously as it might to a curfew which begins at 2.00 am. Collins J thought that permitting AM to stay out until 4.00 am would result in the period he was out at night being “unnecessarily lengthy”. He could not have meant that AM did not need to stay out until 4.00 am to enjoy himself, because the test was whether the need to protect the public required the curfew to begin at 2.00 am. There is nothing to suggest that the level of risk has changed since then. On the contrary, the possible breaches of the control order between September 2008 and February 2009 have occurred in the meantime. I acknowledge, of course, that I must make my own assessment of the risk, and not simply rely upon that of Collins J, but my conclusion is that the need to protect the public from the risk that AM might engage in terrorism-related activity makes it necessary for AM to be denied the opportunity to be away from his flat in the middle of the night, even though it may be more likely that people will come to hear that he is subject to a control order. AM’s visitors[18]When the control order was first imposed, there were no restrictions on the people who could visit AM in his flat. Anyone could visit him, though if they had a mobile phone with them they had to switch it off. However, in June 2008 when the control order was renewed, a new obligation was imposed which prohibited AM from permitting anyone to visit his flat without the prior agreement of the Home Office. The only exceptions – i.e. the only people in respect of whom the prior agreement of the Home Office was not needed – were his parents and sisters, his lawyers, various professionals and people who needed access to the flat for various reasons. AM appealed against that restriction, and by the time Collins J gave judgment, the Home Office’s stance had changed. The Home Office was content for AM merely to notify it of his visitors after their visit, provided that he gave them the name, address, date and place of birth of the visitor within 24 hours of the visitor arriving at the flat. Collins J relaxed that requirement even further by making it unnecessary for AM to provide the Home Office with the date and place of birth of his visitors. He thought that their name and address would be sufficient. On 1 December 2008, AM’s solicitors requested the Home Office to relax the requirement on AM to provide the Home Office with the addresses of his visitors. AM did not know the addresses of some of the people who wanted to visit him, and it was not “sociably acceptable” to ask them. Moreover, if a visitor whose address he knew came with someone whose address he did not know, there was no acceptable way he could refuse entry to the latter. Although the letter did not say so, the point is that if he cannot come up with a sociably acceptable reason for asking them for their address (and for making a note of it at the time if he would otherwise not be able to remember it), he will be forced to disclose that he is subject to a control order or forego the opportunity for them to visit him. On 9 December 2008, the Home Office refused that request, and this refusal was challenged in the notice of appeal lodged on 23 December 2008. In fact, the notice of appeal referred to the need for AM to notify the Home Office of their date of birth as well, a requirement which had not been in force for some months, but AM’s solicitors may have been lulled into thinking that it was still in force because the Home Office’s letter of 9 December 2008 had erroneously referred to it. AM’s visitors have always been allowed to take a mobile phone with them into AM’s flat provided that it was switched off, but ever since June 2008 when restrictions on his visitors first appeared in the control order, they had to agree to surrender their mobile phones for inspection if requested to do so. No request was ever made for this obligation to be dispensed with or relaxed until AM’s solicitors’ letter of 20 February 2009. That request has not yet been considered by the Home Office, let alone refused, and accordingly this obligation can only be the subject of an appeal under section 10(1)(b) of the Act. Since the amended version of the notice of appeal sought such modifications as were set out in the letter of 20 February 2009, this aspect of the appeal can nevertheless be considered because of the permission I have given for the notice of appeal to be amended. The addresses. The Home Office’s rationale for the requirement on AM to provide the addresses of his visitors is that it needs to know who AM’s visitors are. Sometimes their names may be sufficient to identify them, in which case their addresses would not be needed. But often their names may not be enough, because they may be unknown to the Security Service or to the police, or because many people have the same or similar names and their name alone is insufficient to identify them. That is the context in which a short exchange of correspondence between AM’s solicitors and the Home Office has to be considered. On 25 September 2008, AM’s solicitors wrote to the Home Office seeking its approval for AM to meet away from the flat six people referred to in that letter. The Home Office gave its approval for AM to meet two of them, even though no addresses were provided for them. That is said to show that sometimes the Home Office does not mind if it does not get their addresses. Moreover, one of the six people who it was not prepared to give its approval for until it had received his address – Ahmed Patel – was someone whose address had been included in a witness statement he had given in February 2008 for the section 3(10) review hearing. That is said to show that the Home Office is not prepared to undertake for itself even the most basic investigations to ascertain the identity of AM’s visitors. Neither of these two points undermine the rationale for requiring AM to provide the Home Office with his visitors’ addresses. It may be that the Home Office was able to identify who AM’s two visitors were from their names without the need to have their addresses and did not mind AM knowing that in their particular cases. And it may be that it was unable to identify who Ahmed Patel was from his name, and that it did not link him with the Ahmed Patel who had previously given a witness statement. It has been said on AM’s behalf that there have been cases in which the Home Office has sought to justify the obligation on a controlled person to provide the addresses of his visitors in order to deter “undesirable people” from visiting the controlled person, on the footing that they will not want to provide their addresses to him or that they will not want him to provide their addresses to the Home Office. The case of Secretary of State for the Home Department v AR [2008] EWHC 3164 (Admin) is said to be an example of that. I do not get that from the judgment at all. The judgment highlights something else, which is the concern sometimes expressed by controlled persons that people who pose no threat to national security might be deterred from visiting them. As I said in Secretary of State for the Home Department v AP [2008] EWHC 2001 (Admin), I can see how knowing that someone is subject to a control order may well deter you from visiting them even if you do not have anything to hide, and I have put that into the balance. But the fact remains that if the Home Office cannot identify AM’s visitors from their names alone, it will need to have their addresses. It would not be sufficient for AM to be required to give just their names initially, on the basis that this may be enough for his visitors to be identified, and then to give their addresses if that is what the Home Office says is needed to enable them to be identified. In that way AM (and his friends) would get some idea of which of his friends the Home Office already knew about and which it did not. AM has a fallback position here. If he is still to be required to give the addresses of his visitors, it is suggested that he be required to give only such particulars of their addresses as he knows. If it was only a small proportion of his visitors whose addresses he did not know, I might have said that AM’s fallback position represented a more proportionate response to the Home Office’s need to identify all AM’s visitors, bearing in mind the possibility that he might otherwise have to disclose to them that he is subject to a control order. But four out of the six people referred to in the letter of 25 September 2008 were people whose addresses the Home Office needed in order to identify who they were. And if a letter which AM’s solicitors wrote to the Home Office on 20 February 2009 is anything to go by (which gave the address of only one out of thirteen people for whom AM was seeking approval to meet outside his flat, even though the home towns of the other twelve were given), there are likely to be very many people whose addresses AM will not be able to give. In these circumstances, I do not believe that AM’s fallback position meets the Home Office’s concerns, and I have concluded that the need to protect the public from the risk that AM might engage in terrorism-related activity justifies the obligation on AM to provide the Home Office with the addresses of his visitors, even though that may in some cases result in him having to disclose to them that he is the subject of a control order. Mobile phones. The rationale for the requirement on AM to get his visitors to switch their mobile phones off is presumably to prevent him from using them himself, and the rationale for the requirement to get his visitors to surrender them for inspection if required is to police that requirement: if his visitors know that their mobile phones have to be switched off, they are more likely to comply with that requirement if they know that their mobile phones could be inspected afterwards. The critical question therefore is whether it is necessary to prevent AM from either using his visitors’ mobile phones or getting his visitors to use their mobile phones on his behalf. The thinking behind that is to prevent AM from covertly being able to communicate with people who pose a threat to national security or to get access to the internet. Having access to someone else’s mobile phone would enable him to do that, and therefore denying him access to their mobile phones would prevent him from doing that. It is said that this restriction is illogical because his friends do not have to switch their mobile phones off when they are not in his flat and AM could therefore use them then, but he would be in breach of the control order if he did so, because he is not allowed to use someone else’s mobile phone anywhere. It may be difficult to police his obligation not to use someone else’s mobile phone when he is away from his flat, but the fact that he may be able to do so without being detected (even though he claims he has never tried to) is not a good reason for permitting mobile phones to be used in his flat when that is an obligation which is capable of being policed. There is, after all, the suggestion that AM may have attempted to access the internet as he has recently been found in possession of an Xbox console. I acknowledge that AM cannot require his visitors to comply with his request that they turn off their mobile phones and surrender them for inspection if required, but that does not make the requirement on him unenforceable. If they refuse to agree, his obligation is to refuse to permit them to come into his flat. In the circumstances, I have no doubt that the need to protect the public from the risk that AM might engage in terrorism-related activity justifies this obligation. Meetings with friends[19]When the control order was first imposed, there were no restrictions on the people who AM could arrange to see outside his flat. However, in June 2008 when the control order was renewed, a new obligation was imposed which prohibited AM from meeting anyone outside his flat without the prior agreement of the Home Office. There were some exceptions to that, such as his parents and sisters, but there was no exception for any of his friends. That was eventually to change following the relaxation of the obligation about visitors to his flat, and following an indication given by Collins J that the restriction on his meeting people outside his flat should be relaxed. He left it to the parties to reach agreement on the extent of the relaxation. The change which the Home Office had in mind was that AM should not need to obtain the prior agreement of the Home Office if he wanted to make arrangements to meet friends whose names and addresses had been provided to the Home Office because they had visited AM in his flat. Drafting errors meant that this relaxation did not take effect until 9 December 2008, although that was not appreciated by AM and his solicitors at the time. Even now, the relevant obligation – para. 5 in the list of obligations – is not drafted as clearly as it might have been. Do the words in para. 5(a)(i) “a person referred to in obligation (4.1)” refer to anyone who has visited AM in his flat, or to anyone who has visited AM in his flat and whose name and address AM has given to the Home Office? Mr Otty acknowledged that it was intended to mean the latter, and I agree with that. Any doubt has now been removed with this clarification, but it is, of course, vitally important that the obligations imposed by a control order are clear and easily understood, as criminal sanctions may be imposed for their breach. When it came to people whose names and addresses had not been provided previously to the Home Office because they had not visited AM’s flat, AM still needed the prior agreement of the Home Office to meet them. If he was to get such agreement, he would no doubt have to provide their names and addresses, though that was not spelt out either. However, that was what AM’s solicitors understood the position to be, because on 1 December 2008 they wrote to the Home Office requesting that AM be relieved of the obligation to give the names and addresses of people who he wanted to arrange to meet outside his flat – as if the giving of the address as well as their name was a pre-condition for approval. On 9 December 2008, the Home Office refused that request, and this refusal was challenged in the notice of appeal lodged on 23 December 2008. The arguments in favour of and against this requirement are the same as the arguments relating to the requirement that AM provides the Home Office with the addresses of his visitors. It is unnecessary to repeat them here. My conclusion is that in order to protect the public from the risk that AM might engage in terrorism-related activity, the Home Office needs to know who AM wants to meet. It needs him to provide their addresses as well as their names because their names may not be sufficient to enable them to be identified. Even though this requirement too could result in AM having to disclose that he is subject to a control order, this obligation is both necessary and proportionate. There is a postscript to this issue relating to something which has occurred since the hearing of the appeal. In their letter to the Treasury Solicitor of 20 February 2009, AM’s solicitors requested that his curfew be extended or varied on the Saturday evening closest to his 21st birthday, so that he could celebrate his birthday with friends. That request was repeated in a letter to the Home Office of 27 February 2009. The Home Office responded to that request on 4 March 2009, stating that “[i]n order to inform [their] consideration” of the request, they required, amongst other things, the names and dates of birth of the people who AM wanted to meet outside his flat on the evening of his birthday celebrations. That was stated to be pursuant to the obligation relating to the restriction on the people who AM could meet outside the flat. The request to provide their dates of birth is not part of that restriction. Moreover, reliance is placed on the fact that the Home Office does not require AM to provide their addresses. It is said that this is inconsistent with the Home Office’s insistence that AM provides the names and addresses of people he wishes to meet outside his flat. The Home Office acknowledges the need for consistency, and has since then said that instead of requiring him to provide the dates of birth of the people who AM wishes to meet outside his flat on the evening of his birthday celebrations, it is sufficient if he provides their addresses. I do not regard the Home Office’s original stance as undermining to any significant extent the existing requirement on AM to provide the names and addresses of people he wishes to meet outside his flat. Visiting his parents’ home[20]When the control order was first imposed, there were no restrictions on AM visiting his parents’ home or on what he did there. However, on 17 December 2007, a blanket prohibition on him going there was imposed. He appealed against that prohibition, and Collins J took the view that the obligation should be relaxed so that AM could visit his parents’ home, though on stringent terms. The conditions which were subsequently imposed to reflect the precise terms of Collins J’s order were that AM could visit his parents’ home twice a week, provided that he gave the Home Office at least 24 hours’ written notice of the date, time and anticipated duration of his visit, and that his parents gave their written confirmation that any equipment in their home which was capable of connecting to the internet would be switched off and not used while AM was there. In addition, AM’s parents had to agree to various intrusive arrangements to enable the police to check, in so far as they could, that AM did not in fact access the internet while he was there. On 1 December 2008, AM’s solicitors wrote to the Home Office requesting that AM be permitted to visit his parents’ home three times a week rather than two. They said that AM wanted to see them more frequently. In addition, his parents and some of his sisters had gone away on 28 November for about a month, and AM wanted to help his older sister look after his younger sisters. On 9 December 2008, the Home Office refused that request, and that refusal was challenged in the notice of appeal lodged on 23 December 2008. AM’s solicitors’ letter to the Treasury Solicitor of 20 February 2009 sought a new modification of the restriction relating to AM’s visits to his parents’ home. They asked for members of AM’s family – though not, of course, AM himself – to be permitted to use the internet and their mobile phones (which were capable of connecting to the internet) while AM was there. AM’s sisters were being prevented from sending texts to their friends and playing computer games while AM was there, and that had resulted in him only going to his parents’ home, so it was claimed, when his sisters were not there. I have to say that I am sceptical about the truth of that claim. If AM really wanted to see his parents, I do not think that the disappointment his sisters would experience in not being able to send texts or play computer games while he was there is likely to have deterred him. Having said that, this new request has not yet been considered by the Home Office, let alone refused, and accordingly this obligation can only be the subject of an appeal under section 10(1)(b) of the Act. However, as before, this appeal can be considered because of the grant of permission for the notice of appeal to be amended. I can deal with both of these restrictions together. The rationale for the restrictions on the use of equipment capable of connecting to the internet while AM is at his parents’ home is to ensure that AM does not have access to the internet. And the rationale for restricting the frequency of AM’s visits to his parents’ home is to reduce the number of occasions when he would have the opportunity to access the internet. It is not as if he is being denied seeing his parents and his sisters as often as he wants to. They are free to visit him in his flat, which is about a mile from their home, and they do not need prior Home Office approval to do so. It is said that these restrictions are illogical because AM could access the internet on his friends’ mobile phones, but I have dealt with that argument in [36] above. A more persuasive argument for relaxing these restrictions is that there are systems in place to enable the police to check whether the internet has been accessed during AM’s visits to his parents’ home. His parents had to agree to the installation of monitoring equipment on their computers and other equipment capable of connecting to the internet, and the police are entitled to remove and examine this equipment after any of AM’s visits. What is more, it is said that the police have not implemented either of these measures, even though Collins J had been told that they were essential. I do not know whether the Home Office agree that these measures have not been implemented, but all in all, such measures as have been permitted to monitor whether the internet is being accessed during AM’s visits may not be very effective. I appreciate that Collins J must have been anxious to give some degree of normality to AM’s life when he directed that the blanket prohibition on AM visiting his parents’ home should be relaxed. But I have concluded that in order to protect the public from the risk that AM might engage in terrorism-related activity, AM should not have access to the internet at all. Once it was decided that AM should be able to visit his parents’ home, the only practical way of preventing him from having access to the internet there was to limit the number of his visits and to ensure that any equipment which was capable of being connected to the internet was not used at all while he was there. Even though that has some impact – albeit a relatively modest one – on the lives of AM and his family, the restrictions which have been imposed on him are both necessary and proportionate. Conclusion[21]It follows that this appeal must be dismissed. For the avoidance of doubt, I confirm that some of my reasons for reaching that conclusion are based on material which has been withheld from AM and his legal team, and are contained in my closed judgment. There was not a hearing under rule 76.29 of the Civil Procedure Rules to decide whether the Secretary of State should be permitted to withhold such material for the purpose of this appeal. Presumably that was because the special advocate notified the court, pursuant to rule 76.29(2)(a), that he would not be challenging an application for such permission. As it is, I do not think that AM’s inability to give instructions to his legal team on that part of the closed material which has contributed to the conclusion I have reached has deprived him of his right under Art. 6 to a fair trial. I should add that I have revisited all my conclusions since receiving Mr Otty’s comments on the draft judgment which was sent to the parties for any typographical errors to be corrected, but they remain the same.

Cited in 2 later judgments