Secretary of State for the Home Department v AY [2010] EWHC 1860 (Admin)

Case No PTA/36/2008Case No PTA/44/2009[2010] EWHC 1860 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
Venue Royal Courts of JusticeDate 26/07/2010
Before
THE HONOURABLE MR. JUSTICE OWEN
Between
Secretary of State for the Home DepartmentApplicant/AYRespondent/
Tim Eicke and Carys Owen (instructed by the Treasury Solicitor) for ClaimantHenry Blaxland QC and Dan Squires (instructed by Birnberg Pierce) for RespondentMohammed Khamisa QC and Martin Goudie – Special Advocates for RespondentHearing Hearing dates: 23 -24 June 2010
JudgmentThe Honourable Mr. Justice Owen:
[1]This is a hearing under Section 3(10) of the Prevention of Terrorism Act 2005 (PTA) and constitutes a review of a control order imposed on AY on the 28July 2008. On 1 April 2009 Ouseley J ordered pursuant to paragraph 5 of Schedule 5 to the PTA, that nothing should be published that would tend to identify AY. The order remains in force.[2]The background AY is a British national of Pakistani origin born in Birmingham on 5 August 1981. In 2002 he left the United Kingdom when wanted by the Police in relation to a serious, but non terrorism-related offence. He spent the following 4 years living in Pakistan, and for short periods in South Africa. When in South Africa AY assumed the identity of a South African national so as to obtain a South African passport. In June 2006 he married a British national, and in July 2006 he and his wife travelled to the United Kingdom from South Africa by way of Mauritius, AY travelling under this assumed identity.[3]InAugust 2006 AY was arrested in connection with a plot to mount multiple terrorist attacks. AY was remanded in custody, and in August 2006 was charged with offences of conspiracy to murder and engaging in conduct preparatory to acts of terrorism.[4]In a trial commencing in April 2008, the appellant and others were tried on an indictment containing four counts. All pleaded not guilty to count 1, a charge of conspiracy to murder particularised as conspiracy to murder by the detonation of improvised explosive devices (IEDs), and to count 1A, a simple charge of conspiracy to murder. The jury convicted three of the defendantson count IA, but could not agree in relation to the remaining counts and defendants.[5]In a second trial that took place between February 2009 and September 2009, defendants in the first trial were retried on the counts upon which the jury had been unable to come to a verdict.[6]The Legal Framework Under Section 2(1) of the PTA the Secretary of State may made a control order against an individual if she - “(a) has reasonable grounds for suspecting the individual is or has been involved in terrorism-related activity: 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.” A control order made by the Secretary of State is called a non-derogating control order, and under Section 2(4) has effect for a period of 12 months, but may be renewed on one or more occasions.[7]The function of the court on a hearing under Section 3(10) is “to determine whether any of the following decisions of the Secretary of State was flawed –(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and(b) his decisions on the imposition of each of the obligations imposed by the order."[8]In determining what constitutes a flawed decision, the court must apply the principles applicable on an application for judicial review (section 3(11)). What that means in practice was explained by the Court of Appeal in SSHD v MB (2007) QB 415, (2006) EWCA Civ 1140. At paragraph 44 Lord Phillips of Worth Matravers CJ (as he then was), said that “…a purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed…” and continued at paragraph 46 – “46. For these reasons we consider that section 3(10) can and should be ‘read down on’ so as to require the court to consider whether the decisions of the Secretary of State in relation to the control order are flawed as at the time of the court’s determination.”[9]At paragraphs 60 – 67 Lord Phillips addressed the nature of the exercise to be carried out by the court under section 3(10), saying at paragraph 60 – “60. Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the acts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism related activity.” At paragraph 67 he went on to consider the standard of proof – “ …The PTA authorises the imposition of obligations where there are reasonable grounds of suspicion. That issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may have involved considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on the balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the procedure for determining whether reasonable grounds for suspicion exists that has to be fair if article 6 is to be satisfied.”[10]At paragraph 64 Lord Phillips observed that the Secretary of State is better placed than the court to decide the measures necessary to protect the public against activities of a terrorist suspect, and that for that reason a degree of deference must be paid to decisions taken by the Secretary of State. But notwithstanding such deference, the court must give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order (paragraph 65).[11]But before considering the issues that arise under section 3(10), it is necessary to address a preliminary issue of law raised by AY in his Notice of Appeal to the High Court against the renewal of the control order filed on 12 August 2009. He contends that it is wrong in principle and an abuse of process for the SSHD to make a control order on the basis of alleged terrorism-related activity which has been the subject of a criminal charge upon which the subject of the order has been acquitted by a jury (the principal preliminary issue). A supplementary argument was developed by Mr. Blaxland QC who appeared for AY in the open hearing, and by the Special Advocate Mr. Khamisa QC in the course of their submissions, namely that it is wrong in principle to make a control order in reliance upon evidence that was available to be adduced at the trial, but was not deployed by the prosecution (the supplementary preliminary issue). It is submitted that in either case a decision to impose a control order would be flawed and should be quashed.[12]The principal preliminary issue It is first necessary to consider section 8 of the PTA which defines the inter-relationship between a potential prosecution and the making of a control order. The relevant provisions are in the following terms “8. Criminal investigations after making of control order(1) 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; (b) that the commission of that offence is being or would fall to be investigated by a police force.(2) Before making or apply 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.”(3) 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.(4) 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” (1) 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; (b) that the commission of that offence is being or would fall to be investigated by a police force. (2) Before making or apply 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.” (3) 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. (4) 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”[13]In SSHD v E and another [2008] 1 AC 499, the House of Lords considered the relationship between section 2(1) and the provisions of section 8. At paragraphs 14-16 of his speech, Lord Bingham of Cornhill endorsed the view of the Court of Appeal as to the principle governing the legislative provisions. “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 Home Department v MB [2007] QB 415, para 53, the Court of Appeal (Lord Phillips of Worth Matravers 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, (paragraph 73) the Court of Appeal 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 when 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. Lord Hoffman, Lord Carswell and Lord Brown agreed with Lord Bingham. So too did Baroness Hale who further observed at paragraph 27 - “27. It is noteworthythat Section 8 does not impose a duty upon the Secretary of State to consider whether there is a reasonable prospect of a successful prosecution: still less does it require her to have formed the view that there is no such prospect. All it does is require her to consult. I agree, for the reasons given by my noble and learned friends, that compliance with a duty to make inquiries of the police under Section 8 (2) is not a condition precedent to making a control order; nor is the receipt of a negative reply to those inquiries. But both are highly relevant factors to be taken into account by the Secretary of State when considering whether a control order is ‘necessary’. The court, in considering whether the Secretary of State’s decision is flawed, will be reluctant to confirm that decision if the requirements of Section 8 have not been complied with or, indeed, if inquiries reveal that there is a reasonable prospect of a successful prosecution” “27. It is noteworthythat Section 8 does not impose a duty upon the Secretary of State to consider whether there is a reasonable prospect of a successful prosecution: still less does it require her to have formed the view that there is no such prospect. All it does is require her to consult. I agree, for the reasons given by my noble and learned friends, that compliance with a duty to make inquiries of the police under Section 8 (2) is not a condition precedent to making a control order; nor is the receipt of a negative reply to those inquiries. But both are highly relevant factors to be taken into account by the Secretary of State when considering whether a control order is ‘necessary’. The court, in considering whether the Secretary of State’s decision is flawed, will be reluctant to confirm that decision if the requirements of Section 8 have not been complied with or, indeed, if inquiries reveal that there is a reasonable prospect of a successful prosecution”[14]It is also to be noted that at paragraph 73 of his judgment in the Court of Appeal, the paragraph to which Lord Bingham made express reference, Pill LJ said “73. It is 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. Where there is such a prospect, the subject will normally be charged and remanded on bail or (more usually in custody) pending the completion of the trial process, whereupon, if convicted, he will face a lengthy term of imprisonment. If he is acquitted, there may nevertheless be material justifying the making of a control order at that stage….”[15]The relevant factual background is that the chief officer of police has continued to discharge his obligation under section 8(4) to keep the question of prosecution under review. In her witness statement dated 8 January 2009 the Home Office witness, Susan Hadland, exhibited a letter dated 5 January 2009 from John McDowall, Deputy Assistant Commissioner of the Metropolitan Police and National Coordinator for Terrorism Investigations, to the Home Office which contains the following paragraph – “The investigation into the matters which formed the basis for the charges against [AY] is continuing … the prospect of prosecution for offences related to terrorism is being kept under constant review. There is currently insufficient evidence to prosecute [AY] for an offence relating to terrorism.” In a further letter dated 11 November 2009 Mr McDowall formally confirmed, pursuant to section 8(5) of the PTA that – “Prior to the imposition of the control order … there was consultation between the police and the Crown Prosecution Service (CPS). The CPS advised that, having reviewed the material made available to them … there was insufficient admissible evidence that could realistically be used to further charge [AY] with an offence relating to terrorism.” There is a continual review of the material held by the police and the British Security Service and we are content that, at this stage, there is no admissible evidence that could realistically be used to prosecute him [sic] an offence relating to terrorism. I therefore conclude that there is insufficient evidence to support a charge relating to terrorism.” I therefore conclude that there is insufficient evidence to support a charge relating to terrorism.”[16]I have also seen redacted minutes of the Control Orders Review Group (CORG), which consists of representatives of the Security Service, the police and the Home Office, and which meets on a quarterly basis, the most recent meeting having taken place on 17June 2010. The prospects of a prosecution of AY for terrorism-related offences are considered at every meeting.[17]In my judgment the argument that an unsuccessful prosecution precludes the Secretary of State from making a control order on essentially the same material as that relied upon by the prosecution at trial, is misconceived. The requirements for the making of an order are those set out in section 2(1). There is nothing in section 8 or elsewhere in the Act to suggest that a control order cannot be made following an unsuccessful prosecution.[18]Secondly I do not consider that the governing principle to which Lord Bingham made reference is offended by the making of a control order following an unsuccessful prosecution. The principle is simply that a control order should only be made when it is considered that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. That will be the situation following an acquittal (save for the possibility of a retrial under the provisions contained in part 10 of the Criminal Justice Act 2003, a point to which I shall return).[19]The submission advanced on behalf of AY amounts to an extension of the governing principle for which no basis is to be found in the opinions of the House of Lords in E. Furthermore in the last sentence of paragraph 73 of his judgment in the Court of Appeal (see paragraph 15 above), Pill LJ expressed the view that there might be material justifying the making of a control order following an acquittal. Whilst his observation was strictly obiter, it is to be noted that Lord Bingham, when making express and approving reference to paragraph 73, did not dissociate himself from it.[20]Thirdly it does not follow from the acquittal that the requirements of section 2(1) cannot be satisfied. The task undertaken by a jury and that undertaken by the Secretary of State in considering whether to make a control order are quite different. The jury is concerned with whether the prosecution have proved the constituent elements of a criminal offence to the requisite standard. The Secretary of State has to consider whether there are reasonable grounds for suspecting that the subject is or has been involved in terrorism-related activity, a very different test (see paragraph 67 of the judgment of Lord Phillips in SSHD v MB). The fallacy at the heart of the submission advanced on behalf of AY is that a verdict of not guilty on a specific charge equates to a finding that there are no reasonable grounds for suspecting that the subject is or has been involved in terrorism-related activity.[21]If AY’s submission is well founded, it would have the perverse consequence that in a case in which the evidence warranted prosecution, but the prosecution ended in an acquittal, the Secretary of State would be unable to exercise the power to make a control order notwithstanding that she took the view that there were reasonable grounds for suspecting that the subject was or had been involved in terrorism-related activity.[22]Mr. Blaxland QC also sought to rely upon the opinion expressed by Lord Bingham in E that the control order regime is not intended to be an alternative to the ordinary process of criminal justice with all the safeguards that it provides for an accused. But in this case the control order was not used as an alternative to the criminal process. It was only deployed when the criminal process came to an end.[23]In his witness statement dated 18 June 2010, AY expresses the concern that he could be subject to a control order for the rest of his life. That is at least a theoretical possibility if it continues to be the judgment of the prosecuting authorities that there is no realistic prospect of a successful prosecution for a terrorism-related offence, and the Secretary of State continues to be satisfied that the requirements of section 2(1) are met. But that is the inevitable consequence of the scheme that Parliament has enacted, drawing the balance between the considerable restriction on the freedom of the individual subject to such an order and the protection of the public from the risk of terrorism.[24]The supplementary submission The principal submission was based upon the premise that the Secretary of State’s decision to impose a control order was based upon essentially the same material as that put before the jury. Mr. Blaxland QC acknowledged that if an individual is prosecuted for terrorism-related activity and acquitted, but the SSHD has evidence of other, different and more serious terrorism-related activity which cannot form the basis of a prosecution (for example because the evidence is based upon intercepts), then it may be lawful to impose a control order. But he argued that a decision to impose a control order following an acquittal would be an abuse of process, if in making the decision, the Secretary of State took account of material that could have been adduced in evidence at the trial.[25]The point arises because at the second trial the prosecution relied upon evidence of emails passing between the person whom the prosecution alleged to have organised the plot from Pakistan, and one of AY’s co-defendants (see 3OS paragraph 5-12). AY ran the defence at the first trial that he did not know any of his co-defendants before returning to the UK in 2006, that he was nothing to do with the plot, and that his contact with his co-defendants was for non terrorism-related purposes. The emails in question, and the evidence as to their content given at the second trial by one of theplotters, undermine that defence as they appear clearly to demonstrate his involvement in the plot, see 3OS paragraphs 10-24.[26]It is submitted on behalf of AY that as the material would have been available and could have been adduced in evidence at the first trial, the Secretary of State cannot now rely upon it in considering whether the conditions for making a control order are satisfied.[27]There is no evidence before me as to why the prosecution did not deploy the emails in question in the first trial. But whatever the reason, I do not consider that the Secretary of State, in deciding whether to exercise the power to make a control order under section 2(1), can be bound by a decision by the prosecuting authority as to the conduct of the case. In this context both Mr. Blaxland QC and Mr. Khamisa QC sought to argue that the Crown is indivisible. The DPP, as head of the CPS, is subject to the superintendence of the Attorney General, but both are independent of the Secretary of State in the discharge of their prosecutorial functions. The Secretary of State plays no role in decisions made as to the conduct of the prosecution.[28]Section 8 of the PTA expressly draws clear distinctions between the respective roles of the Secretary of State, the chief officer of police and the relevant prosecuting authority in the context of considering whether there is evidence available that could realistically be used for the purpose of prosecuting a suspect for an offence relating to terrorism. As the House of Lords emphasised in E, the Secretary of State is required to do no more than to consult the chief officer of police. It is clear on the evidence that she did so.[29]A further argument was advanced by the Special Advocate, Mr Khamisa QC, in closed session. He invited my attention to sections 75 – 80 of the Criminal Justice Act 2003, which sets out the circumstances in which an individual can be retried for an offence for which he has previously been acquitted by a jury. He argued that the email evidence could be considered to be new and compelling evidence against AY such as to warrant an application to the court to order his retrial. He therefore submitted that AY could realistically be prosecuted for a terrorism-related offence and that in such circumstances a control order should not have been made, per SSHD v E.[30]Despite having been raised in closed session, the point taken by Mr Khamisa QCwas an ‘open’ point as it did not involve any reference to closed material. I therefore gave counsel for AY the opportunity to address it, which they did in the form of a written submission. They did not support it. Mr Blaxland QC submitted that their written submissions had been predicated on the assumption that in considering whether there was any basis for prosecuting AY the police/CPS had taken into account the retrial provisions, there being no other basis in law, upon which to give consideration to his prosecution, at least in relation to offences of which he was acquitted. He further submitted that the material deployed at the second trial, but not at the first, was not ‘compelling’ within the meaning of section 78 of the 2003 Act.[31]There was no evidence before me as to whether, in their continuing consideration of the prospects of a prosecution of AY (see paragraphs 16-17 above), the prosecuting authorities have specifically considered the application of the retrial provisions of the 2003 Act. But in any event in my judgment there is nothing in the point. As I have already concluded, in the exercise of her power to impose a control order, the Secretary of State must simply address the requirements of section 2(1) of the PTA. She cannot be bound by decisions of a different nature made by the independent prosecutor. The section 3(10) issues[32]I turn then to consider the issues that arise under section 3(10) of the PTA, namely – 1. are there are reasonable grounds for suspecting that AY is or has been involved in terrorist related activity? 2.(a) was it (and does it remain) necessary for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on AY, and(b) was it (and does it remain) necessary for purposes connected with preventing or restricting involvement by AY in terrorist activity, to impose each of the obligations imposed on him by the control order?[33]The assessment of the Secret Services is that AY is a committed and well-connected Islamic extremist who played a key role in the plot. That there was such a conspiracy was put beyond doubt by the convictions on the count of conspiracy to murder by the detonation of IEDs. Accordingly, the question is whether there are reasonable grounds for suspecting that AY was involved in the conspiracy. Most of the material upon which the SSHD arrived at her decision is in the public domain having been adduced in evidence at either the original trial or at the re-trial. It was therefore available to be challenged by AY in these proceedings through the production of evidence or the cross-examination of the two witnesses upon whose evidence the SSHD relied, the Home Office witness, Susan Hadland, and the security service witness ZF. But AY took neither course. He filed two witness statements asserting at paragraph 2 of the first that - “I am not a threat to national security nor will I seek to participate in any activity describable as “terrorist” ” Similarly, at paragraph 3 of his second witness statement he said “I am not and will not seek to participate or engage in any activity describable as terrorist” His counsel did not seek to cross-examine either witness.[34]Accordingly there was no challenge to the facts contained in the five Open Security Service Submissions. But it is nevertheless necessary to consider whether the factual material that they contain gives rise to reasonable grounds for suspecting that AY is or has been involved in terrorism-related activity. I should make it clear that at this stage I am addressing that issue without reference to the closed material.[35]The Open Amended 1st Security Service Submission to the Home Secretary (1AOS) was dated October 2008 and amended in March 2009. It contained an overview of the investigation into the plot. It also contained an analysis of AY’s activities between 2002 and 2006. The amendment to the statement added the information that having entered South Africa in June 2004 on his UK passport, AY obtained a South African identification card and subsequently a South African passport as part, say the Security Service, of a concerted effort to build a false identity. On 28th September 2005 he flew to Pakistan using the falsepassport, returning to South Africa in March 2006. His trip to Pakistan coincided with that of other plotters who visited Pakistan in late 2005 and early 2006. The Security Service assess that AY undertook terrorist training with them and others in Pakistan. On his return to South Africa, AY applied for a new passport which was issued in April 2006. The Security Service assess that it is likely that he did so in order to avoid the Pakistan stamps in the first false passport issued in August 2005, raising suspicion upon entry to the UK (1AOS para 28).[36]Following AY’s arrest his premises were searched and various property was recovered including an MP3 player, a USB drive and a lap top all of which contained a quantity of extremist material. The Police also found a large pack of batteries, identical to the type and origin (Pakistan) of those found at the ‘bomb factory’, the address used by members of the plot to construct parts of the IEDs.[37]The Open 2nd Amended Security Service Submission (2AOS), dated January 2009 and amended March 2009, contains a response to the defence advanced by AY at trial, in particular the assessment that his explanation of his activities in Pakistan between 2002 and 2004 was at best incomplete and at worst completely inaccurate, that his account of his trip to Pakistan in 2005/2006 was false, and that in each case the explanations given at trial were a cover for his attendance at terrorist training camps.[38]As to his relationship withone of the key members of the plot, AY claimed at trial that he had never met him before his arrival in UK in 2006, and that all his contact with him was due to him attempting to help AYto source a false British passport and to help him with money problems. The Security Service assessment is that that account is implausible, and that his relationship with this plotter was in relation to involvement in the plot.[39]When questioned during his criminal proceedings AY claimed that he had no Islamist extremist beliefs. That appears to be at odds with the nature of the material found in his possession; and the Security Service assessment is that his explanations for such material, namely that they belonged to his wife and had been passed to her by a female cousin for assistance in her ‘Islamic education’, are highly implausible.[40]The 2OAS also took issue with the explanation advanced by AY as to the surveillance evidence of his meeting with Al Ghabra on an evening inAugust 2006 when he was observed to pass a package to Al Ghabra. It took place immediately after AY’s meeting with other plotters in which he was handed what was assessed to be the same package.[41]Finally the 2OAS asserts that from his arrival in the United Kingdom in July 2006 until his arrest in August 2006, AY demonstrated what the Security Service assesses to be security aware behaviour.[42]Paragraph 5 is in the following terms:
“5. In the re-trial the Prosecution relied upon several e-mail transactions, not deployed in the first trial … The Security Service assesses that these e-mails further implicate (AY) in the plot. The Security Service assesses that these e-mails further implicate (AY) in the … plot. The Security Service assesses that neither ‘Jamil’ nor ‘Yusef’ was the real name of the individual in Pakistan with whom [the defendants] were in e-mail contact ….”
[43]As was stated in 1OAS (see paragraphs 20 and 28) the evidence demonstrates that AY is an associate of the plot co-ordinator in Pakistan. In February 2002 AY andtheplotco-ordinator visited an internet café in Portsmouth where they viewed pages relating to a US aviation company and ordered a GPS map receiver and various compass/map CDs using fraudulent credit card details. They later fled the United Kingdom after a serious crime in which they were both assessed to have been involved.[44]The Security Service assess that the plot was being co-ordinated on behalf of Abu Ubaydah Al-Masri, a senior Al Qai’da commander in Kunar province, Afghanistan, (3OS paragraph 8).[45]The Security Service analysis of AY’s role in the plot is set out in the following terms: “10. The Security Service assesses that (AY) was a key member of the … plot and that his implication within the plot is further demonstrated in the e-mails deployed in the re-trial. It is assessed that (AY’s) role was primarily as an explosives advisor, sent to the UK… to assist in the development of explosive devices. … In an e-mail … [in] July 2006,… [was written]: ‘Ny [sic] friend that would like to see you is Arif. You have met him before. He is good friends with Abdul and Jameel so you don’t need to worry bout [sic] that he can help them. He knows about the dates and he knows his aftershaves very well as he had a cosmetic shop before. But because his shop went bankrupt he is a bit out of touch about the new desighber [sic] aftersahaves [sic]. So if you could update him about the ones you were shown by me it would be helpful cos [sic] he needs to show Jamil afterwards.’ In the e-mail Jamil used the term ‘aftershave’ and ‘cosmetics’; in the re-trial, [one of the defendants] admitted that both of these terms were code for explosives or ingredients for explosives. [He] also admitted that ‘Arif’ was an individual with whom he was being put in contact by Jamil so that he (‘Arif’) could assist [him] in the… plot, in particular with explosives … . ‘Ny [sic] friend that would like to see you is Arif. You have met him before. He is good friends with Abdul and Jameel so you don’t need to worry bout [sic] that he can help them. He knows about the dates and he knows his aftershaves very well as he had a cosmetic shop before. But because his shop went bankrupt he is a bit out of touch about the new desighber [sic] aftersahaves [sic]. So if you could update him about the ones you were shown by me it would be helpful cos [sic] he needs to show Jamil afterwards.’[46]The e-mails between a co-defendant and Jamil, and the co-defendant’s admissions in the course of the second trial indicate that AY was not being truthful in the evidence that he gave at the first trial. Secondly, the Security Service assess that despite an assertion in evidence that AY did not play a part in the conspiracy, AY remained a key member of the plot and was actively engaged with it until his arrest in August 2006.[47]Furthermore, in his evidence at the first trial AY claimed that he did not know one ofhis co-defendant’s before their first meeting in the UK on 29 July 2006. The Security Service assesses that that is demonstrably untrue in the light of the e-mail on 25 July (see paragraph 10 of 3OS set out at paragraph 45 above), and the e-mail of 29 July informing Jamil that he and AY had met saying:
“I am with Arif, didn’t thought it would be him, top dude!”
[48]At paragraphs 21-24 of 3OS the Security Service contend that their assessment at paragraph 8 of 2OAS that AY attended terrorist training camps in Pakistan, is supported by the e-mail of 25 July, (see paragraph 10 of the quotation at paragraph 45 above).[49]The Open 4th Submission served in March 2010 does not contain significant new material.[50]The Open 5th Submission (5OS), served in May 2010, addressed the relationship between AY and Mohammed Al Ghabra. In the course of the trial AY was questioned about an individual known as ‘Gabs’. The Security Service assesses that the individual known to AY as ‘Gabs’ is identical with Mohammed Al Ghabra. Al Ghabra is described in the statement in the following terms:
“3. Mohammed Al Ghabra is a prominent UK-based Islamist extremist associated with a significant number of extremist individuals. He has historically been, and continues to be, in direct contact with Pakistan-based senior Al Qai’da (AQ) individuals. In 2002 he met the now detained AQ Director of Operations Faraj Al Libi, a senior AQ commander who was detained by Pakistani authorities in 2005. Al Ghabra stayed at Al Libi’s home address for one week. He is also in regular contact with numerous UK-based Islamist extremists and has been involved in the radicalising of UK-based individuals and facilitating their travel to Pakistan where he has arranged for them to attend terrorist training camps. 4. Al Ghabra has strong links to the Kashmiri militant group Harakat ul Mujahidin (HuM). The Security Service believes that Al Ghabra himself has undertaken terrorist training at a HuM training camp in Kashmir, where he learned to use AK47 assault rifles as well as pistols. Al Ghabra intended to fight in Kashmir but was prevented from doing so by HuM as they needed individuals to return to the UK to raise funds. 5. On 12 December 2006, Al Ghabra was added to the United Nations 1267 Committee list of individuals or entities belonging to or associated with the Taliban and AQ (known as the UN Sanctions List). …”
[51]On AY’s own evidence he met Al Ghabra “at least half a dozen times” in South Africa in April/May 2006 when, on his account, Al Ghabra was trying to establish whether there was a market for leather jackets. The Security Service assesses that Al Ghabra and AY were likely to have discussed Islamist extremist matters whilst in South Africa, an assessment supported by the information set out at paragraphs 8-16 of 5OS, which relate to meetings between AY and Al Ghabra in the United Kingdom following AY’s arrival on 18 July 2006. The Security Service assess that the meetings that they had between 21 July and 4 August were suspicious, being held around the area of Wanstead Flats, an isolated location which afforded open spaces in which they could hold private conversations.[52]As stated in paragraph 13 of 2OAS, AY was observed passing a package to Al Ghabra in the course of their meeting in August 2006. Immediately prior to the meeting, AY had met other plottersand had been handed what was assessed to be the same package. AY claimed that the package contained electrical items thatone of them had sold to him for £100, and that he sold some of the items on to Al Ghabra. The Security Service does not accept that explanation, and assesses that the nature of the meeting with the plotters followed by that with Al Ghabra, indicates that they were unlikely to be for a legitimate sale of electrical items, being held in the dark, and in quiet public areas. When arranging to meet Al Ghabra, AY called him from a telephone kiosk using an international calling card, and prior to the meeting AY was seen to carry out extensive counter-surveillance which included hiding in bushes, walking in a circuitous route and altering his pace of walk.[53]The second subject addressed in 5OS was martyrdom videos. The assessment, which is supported by the e-mail correspondence as set out in its paragraphs 13-16, is that it is likely that the items passed to AY by included martyrdom videos, some of which he then passed to Al Ghabra, and that Al Ghabra may have had a role in facilitating their transportation to Pakistan.[54]5OS also contained an assessment of material relating to contact between AY and the plot co-ordinator in the summer of 2006. It is assessed that the e-mail correspondence between the plot co-ordinator and another plotter on three dates inJuly indicates that it is likely that AY was in direct contact with the plot co-ordinator with regard to the plot. In an e-mail sent on 25 July the co-ordinator stated that:
“Arif (AY) is planning to be a partner long term so pls get to kow [sic] so it can work.”
Hisuse of the phrase ‘long term’ indicates that he foresaw AY and another seniorplotter working together in the future, that neither were intended to be suicide bombers, but were playing a co-ordinating role in the plot, and upon completion of the attack would have been available to engage in the planning of future attacks. Conclusions 55. Issue 1

Conclusions

[55]In the light of the material contained in the open Security Service Submissions, the principal features of which are summarised above, I am satisfied that there are reasonable grounds for suspecting that AY was involved in terrorism-related activity. There has been no challenge either to the facts set out in the Submissions, nor to the assessments made by the Security Service in reliance upon such factual material. The ‘innocent’ explanation for his association with the convicted members of the network and with AM advanced at trial, has been demonstrated to be false. He has offered no explanation of the email evidence adduced at the second trial, nor of the evidence given by his co-defendant as to his, AY’s, involvement in the plot. Issue 2(a)[56]Was it (and does it remain) necessary for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on AY? In addressing that question I have to pay due deference to the judgment made by the SSHD as advised by the Security Services.[57]Given the extremely serious nature of the plot and the conclusions to be drawn from the material summarised above as to AY’s role within it, I am entirely satisfied that it was necessary to impose the control order. I am also satisfied that it remains necessary bearing in mind the material that indicates the organisational role that he played, and the material indicating his potential future engagement in terrorism related activities, see paragraph 58 above.[58]In this context I also take account of the careful and considered phraseology used by AY in both his witness statements in relation to engagement in future terrorist activity (see paragraph 34 above). Issue 2(b)[59]Finally I must consider the obligations and restrictions imposed by the control order against the criterion of whether their impact on AY’s rights and freedoms are no more than necessary to accomplish the objective of protection of the public from a risk of terrorism. Neither counsel for AY nor the Special Advocate have sought to argue that they are. I am satisfied that the Secretary of State was justified in her conclusion that AY is a committed Islamist extremist who would represent a risk to the public if free from the constraints imposed by the control order. I have given the requisite intense scrutiny to each of the obligations contained in the control order. I am satisfied that each is necessary to prevent or restrict involvement by AY in terrorist activity.

Cited in 1 later judgment