AM v Secretary of State for the Home Department [2011] EWHC 2486 (Admin)

Case No PTA/11/2011Case No PTA/17/2010Case No PTA/7/2010[2011] EWHC 2486 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 October 2011
Before
MR JUSTICE SILBER
Between
AMAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Tim Moloney QC and Jude Bunting (instructed by Tuckers Solicitors) for AppellantLisa Giovannetti QC and Carys Owen (instructed by Treasury Solicitor) for RespondentMuhammed Khamisa QC (on 25 and 26 May 2011 only) and Shaheen Rahman (instructed by SASO) as the Special AdvocatesHearing Hearing dates: 25 and 26 May 2011 and 19 July 2011Further written evidence adduced on 25 and 28 July 2011
Judgment

I. Introduction

[1]On 22 June 2007 the Secretary of State for the Home Department (“the Secretary of State”) imposed a non-derogating control order on AM pursuant to the provisions of sections 2 and 3 (1) (a) of the Prevention of Terrorism Act 2005 (“PTA”). After the control order review hearing held pursuant to Section 3(10) of the PTA, Wilkie J on 21 December 2009 ([2009] EWHC 3053 (Admin)) (“the Review Judgment”) upheld the order and an appeal against that order was dismissed by the Court of Appeal on 21 June 2011 ([2011] EWHC 710 (Civ)) (“the Court of Appeal judgment”).[2]The control order remains in force having been renewed on 17 June 2008, 18 June 2009 and 17 June 2010, but subject to certain modifications. The Secretary of State has refused some further requests from AM for modifications to the order which was in force prior to this latest renewal. This judgment relates to five appeals made by AM against the decisions of the Secretary of State to refuse to modify:- (b) Obligation 7.1 of the control order to permit AM to use a memory stick to transfer data from his home computer to his university computer (“the USB Memory Stick Appeal”); (c) Obligation 7.1 of the control order to allow AM internet access at home for the purpose of his study (“the Home Internet Access Appeal”); (d) Obligation 15.2 of the control order to remove the requirement for AM’s family to disconnect devices when AM visits his parents’ residence (“the Parental Internet Equipment Appeal”); (e) Obligation 7.1 of the control order to allow AM greater access to the internet at university for purposes of his academic study (“the University Internet Access Appeal”); and (f) Obligation 3 to remove and/or reduce the requirement for AM to make phone calls each day to the electronic monitoring company (“the Monitoring Cause Appeal”).[3]AM contends that these decisions of the Secretary of State to refuse to modify the orders were flawed and are in breach of his human rights, and in particular that:- a) They infringe his Article 6 rights under the standards of procedural fairness by failing to provide AM with adequate disclosure of the allegations and evidence against him (see paragraphs 17 to 19 below); b) They are in breach of the Secretary of State’s public law duty to provide AM with a reasonable opportunity to demonstrate to the Secretary of State and the court that the obligations under his control order are no longer necessary (see paragraphs 20 to 44 below); and c) The decisions in respect of the individual appeals are flawed, unreasoned and in breach of AM’s human rights (see paragraphs 45 to 122 below).[4]The initial hearing of these appeals took place on 25 and 26 May 2011, but it was adjourned pending the decision of the Court of Appeal on the Review Judgment and also to allow the Secretary of State to make submissions on the contention of AM that there was a public law duty imposed on the Secretary of State. This was an argument raised late in the day by AM’s counsel, who also wished to adduce some further evidence from a computer expert. In the light of the approach taken by the Court of Appeal, it is common ground that nothing in the Court of Appeal’s judgment undermines the Review Judgment in any way. Indeed, as I will explain, it positively upholds and approves the reasoning and the judgment of Wilkie J.[5]Since the first hearings in May 2011, further submissions have been served by the Secretary of State, who has also adduced a further witness statement by Ms Susan Hadland, and AM has adduced in evidence a report of Mr. Christopher Vaughan, a Computer Forensic Investigator, which has been replied to by the Secretary of State. There was also a further hearing on 19 July 2011 and after that hearing, a further statement was made on behalf of the Secretary of State to which Mr. Vaughan has replied. There has been no request for the cross-examination of any makers of any of the witness statements. I should add that after the first hearing of the appeal in May 2011, the control order imposed on AM was renewed for a further period of a year on 20 June 2011 and AM has appealed against that renewal but the hearing of this appeal will take place at some time in the future.

II. Chronology

[6]After an order made by Collins J granting permission for the Secretary of State to impose a control order, such an order was imposed on AM on 21 June 2007. A section 3(10) of the PTA hearing to review that control order was listed in January 2008, but the full review hearing did not take place.[7]On 30 April 2008, Sullivan J ruled that the Secretary of State had to make further disclosure in order to comply with the requirements of a fair hearing pursuant to Article 6. The Secretary of State appealed that order and that appeal was dismissed by the Court of Appeal in July 2008.[8]In July 2009, Wilkie J considered AM’s application under section 3(10) of the PTA for a review of the control order. In the Review Judgment, Wilkie J, was very critical of AM as I shall explain in paragraphs 47 to 49 below and he held first that there were reasonable grounds for suspecting that AM had been involved in terrorism-related activity; second that it remained necessary to protect members of the public from the risk of terrorism to make a control order against him; and third to accomplish the legislative objective in the PTA, some measures were modified. As I have explained, AM appealed unsuccessfully against that judgment, and Laws LJ, giving the only reasoned judgment of the Court of Appeal said that “Wilkie J went into the case in very great detail and the reasoning in all three of his judgments is meticulous and compelling”[9]. This conclusion shows that the reasoning and conclusions of Wilkie J deserve the greatest respect made as they were after seeing and hearing AM giving evidence, but they will have to be reconsidered in the light of the submissions made on behalf of AM and the evidence adduced on his part.

III. The Statutory Framework

[9]Sections 1(1) and (2) of the PTA vest the Secretary of State with a power to make control orders, which impose obligations on an individual:- “…for purposes connected with protecting members of the public from a risk of terrorism”[10]By section 1(3) of the PTA:- “The obligation that may be imposed by a control order made against an individual are any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity”.[11]Those obligations can include (section 1(4)) of the PTA:- … “a) a prohibition or restriction on his possession or use of specified articles or substances; (b) a prohibition or restriction on his use of specified services or specified facilities, or on his carrying on specified activities; … (d) a restriction on his association or communications with specified persons or with other persons generally; … (f) a prohibition on his being at specified places or within a specified area at specified times or on specified days; … (p) a requirement on him to report to a specified person at specified times and places.”[12]Section 3 of the PTA sets out the powers and duties of the Court in the supervision of a non-derogating control order. The powers to modify control orders are set out in section 7 of the PTA, which states insofar as is material that:- “1. If, while a non-derogating control order is in force, the controlled person considers that there has been a change of circumstances affecting the order, he may make an application to the Secretary of State for … (b) the modification of an obligation imposed by the order..”[13]The Court’s approach to a modification appeal is set out under section 10 of the PTA and section 10(3) of the PTA allows a person who has applied to the Secretary of State for modification of the control order to appeal against any decision of the Secretary of State on that application. This judgment relates to such an appeal by AM. The Court’s task on an appeal is to determine whether the decision that the modification continues to be necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism-related activity was flawed (see s.10(5) of the PTA). In determining this question, the Court adopts the principles applicable on a claim for Judicial Review (see s.10(6) of the PTA).[14]An appeal under section 10 of the PTA does not involve close consideration of the question whether the Secretary of State had reasonable grounds for suspecting that the controlled person is or had been involved in terrorism-related activity, or was entitled to consider it necessary for purposes connected with protecting members of the public from a risk of terrorism (the criteria set out in s.2(1) of the PTA for the making of non-derogating control orders). As Keith J explained in AM v Secretary of State for the Home Department[2009] EWHC 572 (Admin):- “6.…the Court is not entitled on an appeal under section 10(3)(b) of the Act (or an appeal under s. 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.”[15]In Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, Lord Phillips CJ at [63] – [65], giving the judgment of the Court, set out the proper approach to a section 10 appeal, (although that case was concerned with a challenge under s. 3 of the PTA), when he explained that:- “63…Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligation that it is necessary to impose may depend on the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands on those resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance. [64] The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instances Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, Republic of Ireland v United Kingdom (1978) 2 EHRR 25. [65] Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous and intrusive and, in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order ‘with the consent of the controlled person’ envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations”. (See also per Keith J. in AM v Secretary of State for the Home Department (referred to above) at [7] and AV and AU v SSHD [2009] 1 All E.R. 439 [7]).[16]It is common ground that Simon J has helpfully and accurately summarised the steps which the Court needs to take in modification appeals in CD v Secretary of State for the Home Department [2011] EWHC 1273 [19]:-(a) The Court will engage in a scrutiny of the ‘necessity’ for the particular obligation imposed on the controlled person to which the appeal relates. The test of ‘necessity’ needs little further elaboration: it plainly goes further than reasonableness or utility, see Keith J in AM at [7];(b) The scrutiny must be intense, in other words, closely focused on the decision to impose the obligation in the light of the relevant material put before the Court. The Court applies the relevant principles which are adopted on an application for judicial review, see s.10(6); and if, as will usually be the case, the obligation under scrutiny affects Convention rights, the applicable principle will be proportionality, see MBat [63] and AV and AU at [8];(c) However, 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. The Court’s restraint is a reflection of the fact that the Secretary of State is making evaluative and predictive judgments of risk, see the speech of Lord Hoffman in Secretary of State for the Home Department v Rehman at [48] and [57]; and that(d) The Court will also need to have in mind that it has been provided with evidence which has been withheld from the controlled person and his legal team on the grounds of national security and that the Special Advocate is necessarily inhibited from taking instructions on the material, which he has seen.

IV. Article 6

[17]It is common ground that Article 6 of the European Convention on Human Rights (“the ECHR”) is engaged as these appeal relate to disputes regarding “civil rights and obligations” and the proceedings are determinative of those rights. The Secretary of State accepts that her refusal to modify the control order does, on its face, deprive AM of his civil rights for a significant period.[18]The principles applicable were set out definitively by Lord Phillips of Worth Matravers in AF (No 3) v Secretary of State for the Home Department [2010] 2 AC 269 when he explained in a part of his speech with which other members of the Appellate Committee agreed that:- “59…. the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be”.[19]There has been closed evidence on these appeals and the Secretary of State and the Special Advocate are in agreement that in this case, there has been sufficient disclosure in response to each appeal so as to enable AM to give instructions to his open legal representatives. I have kept the Article 6 rights of AM under constant review. Nothing has been shown to me to suggest that any further disclosure is required. There has been a closed hearing and there is a closed judgment accompanying this judgment.

V. The Public Law Duty

[20]Mr Tim Moloney, counsel for AM, contends that there is a public law duty on the part of the Secretary of State to provide a reasonable opportunity to controlled persons to demonstrate to the Secretary of State and the Court a reduction in the risk, which they pose. It is not suggested that a breach of the public law duty automatically invalidates a control order, although he contends that in an appropriate case, a breach of this duty could vitiate a control order or the obligations arising on it on public law grounds. His case is that AM “should be entitled to declaratory relief condemning the Secretary of State’s failures and indicating that he is obliged to do more” (paragraph 52 of AM’s skeleton argument of 22 May 2011). He also contends that “the Court should take this public law breach into consideration when assessing the proportionality of the obligations that he seeks to modify through these appeals” (paragraph 53 of AM’s skeleton argument of 22 May 2011). Mr. Moloney also submits that “the modifications that AM seeks amount to the most proportionate way forward” (paragraph 54 of AM’s skeleton argument of 22 May 2011).[21]Mr Moloney bases this contention first on the nature of the statutory provisions; second on policy pronouncements from the Secretary of State; third on previous control order jurisprudence; and fourth on an analogy with the regime for prisoners sentenced to Imprisonment for Public Protection (“IPP”).[22]Miss Giovannetti disputes the existence of this duty and she points out correctly that Davis J in Secretary of State for the Home Department v BF [2011] EWHC 1878 (Admin) rejected the existence of a similar duty which had also been contended for by Mr Moloney. She submits correctly that I am bound by that decision unless I am “convinced that the judgment is wrong” (R v HM Coroners Court of Greater Manchester ex parte Tal [1985] QB 67, 81 per Robert Goff LJ). I propose to consider each of the ways in which Mr Moloney contends that such a duty arises in this case and then decide if I am “convinced” that the judgment of Davis J is wrong.[23]Mr. Moloney’s first source of the duty which he contends for is based on statutory provisions because his case is that it is inherent in the language of the PTA that a duty of the kind advocated by him arises because of the frequent references in sections 2(1)(b), 3(10). 2(6) and 10(5) to the need for it to be “necessary” to impose a control order and also to impose each of the obligations imposed in it.[24]These statutory provisions have to be considered in the light of the control order regime, which also crucially provides three opportunities for a controlled person to have court hearings at which he or she can demonstrate a reduction in the risk posed by him or by her so that the order or some of its obligations should be revoked. Not only can the controlled person first challenge the imposition of the initial control order but second there can also be a challenge to each renewal, which has to take place every 12 months. Third, the controlled person can also seek modification of a control order and if a request for modification is refused, he or she is entitled to appeal to the Court on the grounds that the unmodified obligation is no longer necessary and indeed this is just what AM is doing on the present appeals. It is of importance to stress that the controlled person, unlike a conventional applicant for judicial review does not need to seek permission to pursue any of these three remedies. I should add that my experience is that legal assistance for the controlled person is invariably available and usually for both leading and junior counsel.[25]At each of those hearings, the controlled person has an opportunity to adduce evidence to demonstrate that the control order or any obligation imposed in it is not necessary or is no longer necessary. There is no limit on the evidence that can be called by the controlled person. In response, Mr Moloney states that it would be difficult for a controlled person to call evidence because of the stigma that would be attached to him if it was known that he or she was a controlled person and also that might include attacks by uninformed but biased members of the community, who realised the existence of his or her control order.[26]This argument fails to appreciate that there are numerous ways in which a controlled person could demonstrate reduction of risk at those hearings, by, for example, talking to the Security Services but AM is not prepared to do this because he distrusts them. Even then, he could still provide evidence from others about the way he behaves within the community. In the case of AM, he could, for example, adduce evidence from those who teach him at university or those who employ him. There would be no need for these people to be told that AM is subject to a control order but they could be asked to produce a reference relating to the type of person he is, how he mixes with others and whether he appears to hold radical views. I have no doubt that if requested the Home Office would co-operate and seek to assist AM to obtain a reference from AM’s university without giving the source of such reference any reason to believe that AM was or might be subject to a control order.[27]Above all, he himself could provide evidence of a change of heart on his part and in particular that he has recanted from his former views and that he has renounced his previous activity (see as an example PP v Secretary of State for the Home Department (SC/54/2006 [28])). If AM did not know what evidence to adduce to show that there was no necessity for the order or the conditions imposed in it, he would be able to obtain advice from leading counsel experienced in this area, who almost invariably represent controlled people on these hearings, as they do on this appeal. As has happened in this case, the controlled person would be able to obtain and adduce expert evidence at the hearing which would be presided over by a High Court judge.[28]When I asked what procedure would ensure that the duty for which he was contending would be required for the Secretary of State to discharge the public law duty imposed on her, Mr Moloney explained that the type of opportunity that should be given to a controlled person should be similar to the rights given to prisoners to have hearings conducted by the Parole Board. I cannot accept this submission because in my view the rights given to a controlled person are greater than those who appear before the Parole Board. First, a person subject to a control order can make numerous applications as of right to the High Court for modification of his obligations and also the appeals against them and their annual renewals while the Parole Board does not afford those rights to prisoners. Second, unlike in claims against the Parole Board, which are based on the limited remedy of judicial review, a person subject to a control order has a much wider right of appeal against any adverse decision. Third, the controlled person, unlike the prisoner, does not need the permission of the Court to exercise his or her rights to go to court to invoke the rights of appeal. Fourth, the controlled person would almost certainly obtain free legal assistance for leading and junior counsel.[29]Mr Moloney says that the difference between the Parole Board hearing and that of the High Court dealing with the control proceedings is that in the latter proceedings, there is nobody equivalent to a probation officer available to a controlled person. The purpose of having a probation officer in Parole Board proceedings is to assess the risk of releasing the person appearing before the Parole Board and the Security Service fulfils a similar function in the case of control order proceedings. It is noteworthy that the impartiality of the Security Services officers is well known and is widely accepted. Indeed, in my experience and those of my colleagues who have to consider their evidence in control order proceedings, they perform their functions fairly and with great competence. I therefore reject Mr. Moloney’s submissions on this point.[30]The second basis upon which Mr Moloney says the public law duty arises is from policy pronouncements of the Secretary of State in which there has been repeated statements for the need to provide “appropriate exit strategies” to those who are subjected to control orders. He referred to the statement of Mr McNulty MP (then Minister for Security) of 12th December 2007 referring to the need for "keeping under review" each control order to ensure that obligations remainnecessary and proportionate and for the facilitation of reviewing "appropriate exit strategies". In a Government Reply to the Report of Lord Carlile of Berriew QC of July 2007, the then Secretary of State, Ms Jacqui Smith MP, also referred to exit strategies when she stated that:- "The Government believes it important to consider whether de-radicalisation and rehabilitation programmes could be deployed to help individuals subject to a control order. Such initiatives would form another potential exit strategy, though consideration would need to be given – as part of the Control Order Review Group process – to the appropriateness of such action in relation to each individual…" In April 2008, she also said that:- "The consideration of exit strategies for each control order is an integral and significant part of the formal review held each quarter for every control order by the Control Order Review Group."[31]It is important to bear in mind that the Secretary of State was not committing herself to introducing those courses but she was only saying that they merited consideration. In any event, they were not exit routes. Finally I have difficulty in understanding how these courses could be relevant or any value to AM who has always denied that he was, or is, a radical and a terrorist or that he held extremist views.[32]Mr Moloney also relies on statements made in relation to the proposed new regime, which has a proposed maximum time limit of two years, but such orders could only be re-imposed where there is new material to demonstrate that the person concerned poses a continued threat. There is no such provision in the current control order regime and so this point does not further the case of AM. Mr Moloney also relies on statements made by the Independent Review of Terrorism Legislation in which he calls for a “strategy for the ending of the orders in relation to each controlee”. He points out that similar points were made by the Joint Committee on Human Rights, which underlined the importance of an “exit strategy”.[33]There is a clear answer to this because the Secretary of State has in place potential exit strategies for those subject to control orders, which include first prosecution, second deportation, third modification of the obligations and finally non-renewal or revocation of a control order. There is a review mechanism in place not merely by reason of the statutory provisions with opportunities for appeals to modifications but also because the Control Order Review Group (“CORG”) regularly gives thorough consideration every three months to the need for obligations to remain in the control order and to facilitate a review of those strategies. It is true that the controlled person is not present when the reviews take place, but he or she is entitled to request copies of its reports and can no doubt makes representations which would then be considered at the next hearing. I should add that I have seen the CORG minutes and they show that AM’s case was considered in a fair and even-handed way.[34]In my view, the combination of the statutory safeguards and the reviews carried out by CORG are more than sufficient to provide to each controlled person a reasonable opportunity to demonstrate that the control orders and/or any obligations in it are no longer necessary. Mr Moloney referred to some previous control order jurisprudence but none of it suggests that the present regime does not provide meaningful reviews or an opportunity for the controlled person to demonstrate the control order itself or any individual obligation under it is no longer necessary.[35]Mr Moloney proceeds to say that “the most obvious analogy for the public law duty [for which he contends] is that which arises in respect of IPP prisoner” (skeleton arguments paragraph 42). He pointed out that Laws LJ stated in R (Walker) v Secretary of State for Justice [2008] 1 All ER 138 that:- “…it is clear that at the time the 2003 Act was passed there was a settled understanding shared by government together with relevant agencies and professionals that upon the coming into force of the new sentencing provisions in the 2003 Act, not least IPP, procedures would be put in place (so far as not already in place) to ensure that initiatives, in particular courses in the prison, would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time their tariff expired or as soon as possible thereafter, so as to allow the lifer’s release once that was shown. Such an understanding was, I think, a premise of the legislation: it was certainly inherent in the way the legislation was intended to work in practice, and was intended to be given effect by the Secretary of State’s policy set out in PSO 4700”; ([26]) and “Reducing the risk posed by lifers must be inherent in the legislation’s purpose, since otherwise the statutes would be indifferent to the imperative that treats imprisonment strictly and always as a last resort.” ([49])[36]Those findings were not appealed when the case went to the House of Lords as at that hearing, counsel for the Secretary of State accepted that there was a public law duty to provide IPP prisoners with “only a reasonable opportunity”.[37]The House of Lords accepted this position. Lord Judge CJ said that:- “105. The statutory regime for dealing with indeterminate sentences is predicated on the possibility that, save for those for whom the punitive element of the sentence requires that life imprisonment should indeed mean imprisonment for the rest of the offender's natural life, prisoners may be reformed or will reform themselves. A fair opportunity for their rehabilitation and the opportunity to demonstrate that the risk they presented at the date of sentence has diminished to levels consistent with release into the community should be available to them. The IPP sentence does not require the abandonment of all hope for offenders on whom it is imposed. They are not consigned to penal oblivion. To the contrary, common humanity, if nothing else, must allow for the possibility of rehabilitation. As Lord Phillips CJ, in the Court of Appeal, giving the judgment of the court observed, at paragraph 41:
"We also accept that those who promoted the 2003 Act and Parliament that enacted it must have anticipated that the lifer regime …would be available to IPP prisoners so as to give them a fair chance of ceasing to be, and showing that they had ceased to be, dangerous. This was the context in which the legislation was enacted. To use Laws LJ's phrase [2008] 1All ER 138, para 26, it was 'a premise of the legislation'"
. In this context, this premise of the legislation is not however synonymous with its purpose. As we have seen, the statutory structure applicable to IPPs provides for two purposes, commensurate punishment and public protection”.[38]Similar views were expressed by Lord Hope of Craighead [3] and by Lord Brown [28]. Mr Moloney also says that the Walker and Wells litigation provided a helpful guide as to how the public duty would work in practice and there was much emphasis on the need for courses as was explained by the Court of Appeal [39] and in the House of Lords with Lord Hope stating that:- “20…It will be difficult for a prisoner to establish that he does not pose a risk to the public if he is not provided with the courses or assessments that are normally needed to persuade the Board that his detention is no longer necessary..”.[39]Similar views were expressed by Lord Brown [26] and [53]. Mr Moloney says that people subject to control orders such as AM are subject to a very strict regime, but yet they are denied the rehabilitative regime that is available to IPP prisoners.[40]The analogy between the control order regime and that applicable to IPP prisoners is not accurate or correct, because the regime for IPP prisoners is not subject to the same statutory framework as that applicable to those subject to control orders. Indeed the IPP prisoners do not have orders, which have to be renewed by the Secretary of State every 12 months and they cannot bring modification appeals or have orders, which enjoy the same level of regular and intensive judicial scrutiny as a person subject to a control order. Nor are their cases reviewed by a CORG process. Another reason why the analogy is inappropriate is that the reason why those subject to IPP have been detained is very different from why control orders are imposed. To be more specific those subject to the IPP have courses provided because:- “experience shows that it is usually necessary if dangerous offenders are to cease to be dangerous.. performance of the appropriate courses is likely to be a pre-requisite to a prisoner satisfying the Parole Board that he has ceased to be dangerous” [R (Walker) v Secretary of State for Justice (supra) [39]].[41]Those subject to control order are largely if not totally influenced by political or religious beliefs, and so it is difficult to see what courses would be suitable for them. Mr. Moloney did not explain what courses might be suitable for AM, who as I will explain in 49 below was described by Wilkie J as a man who “was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed”. In essence people like AM are in a different position from people who are a danger to the public because they lose their temper and become violent or because of their sexual behaviour and who can be treated for those conditions. I find it difficult to see how attendance at any courses or any other kind of therapeutic or psychological intervention would be either necessary or helpful in reducing the risk posed by persons like AM who had been involved in terrorism-related activity for political or for religious reasons. To my mind, a person who is ideologically committed to a terrorist cause is in a totally different position to a criminal, who has difficulty managing his offending behaviour whether it is as a sex offender or as a violent person.[42]A substantial difference between the two regimes is that the exit strategies are very different because potential exit strategies for control orders such as prosecution or deportation could not have any place in reducing or managing the risk posed by IPP prisoners.[43]In my view, there is no basis for implying the public law duty of the kind suggested by Mr Moloney and in addition it is very difficult to understand what its ambit really is and what is required in a particular situation. In my experience, one of the best reasons for not implying a condition is if it is not clear how it can be discharged as indeed is the case with the duty contended for by Mr. Moloney. This point supports my conclusion that neither the statutory regime, nor the jurisprudence nor any judicial comments nor the analogy with IPP prisoners whether considered individually or cumulatively provide any support whatsoever for the type of condition suggested by Mr Moloney. I will also respectfully adopt the reasons put forward by Davis J in the BF judgment, which I have concluded, explain clearly and cogently why this duty cannot be applied. Indeed I respectfully add that I am convinced that his judgment on this issue is clearly right.[44]I am also quite satisfied that the Secretary of State has complied with her own duty in ensuring that control orders are kept under review including considering potential exit strategy but these must be case specific. I have already explained that Wilkie J reached a conclusion about the serious danger that AM presented as being a highly motivated, strong minded and disciplined extremist who intended to carry out the mass murder of civilians and whose commitment remains unimpaired. This was a conclusion arrived at after he had seen AM being cross-examined and as is common ground this finding has not been criticised in any way whatsoever by the Court of Appeal who indeed, as I have explained, supported Wilkie J’s judgment after having carefully scrutinised it. I therefore reject AM’s case on this issue.[45]Mr Moloney submits that, first, in applying the test set out in section 10(5)(b) of the PTA, my conclusion should be that it is not necessary to continue to impose any of the obligations of the control order now under appeal for the purposes connected with preventing or restricting the involvement by AM in terrorism-related activity. Second, he contends that the Secretary of State has failed to establish that the means used to impair the rights or freedoms in matters set out in the grounds subject to appeal are no more than the means which are necessary and that less intrusive measures would not suffice (see R (Daley) v Secretary of State [2001] 2 AC 532 [72]).[46]Miss Lisa Giovannetti QC, counsel for the Secretary of State, disputes those submissions as she contends that these appeals have to be considered against the background that AM must be regarded as having been involved in terrorism-related activities in the light of the findings of Wilkie J in the Review Judgment made after he had heard oral evidence from AM in which he had strongly denied the central allegation against him that he was involved in “terrorism-related activities” as stated in various security statements provided by the Secretary of State.[47]Wilkie J explained in his open Review Judgment (with my emphasis added) that:- “193. Furthermore, I have had the opportunity of seeing and hearing AM give evidence. In so doing, he is, in my judgment, highly intelligent, calm and cautious beyond his years. He was only prepared to say in oral evidence whatever was contained in his written evidence. He is strong minded and disciplined. In the face of the overwhelming evidence against him, his firm consistent denials are, in my judgment, simply untrue. They have been maintained with a degree of calmness and self-confidence, which, in my judgment, is consistent with the view of the Security Service that he is a disciplined, trained and committed person whose commitment remains unimpaired. 194. In my judgment, therefore, there is an overwhelming case that there are reasonable grounds for suspecting that AM has been involved in terrorism-related activity and would continue to be so if he had. In those circumstances, it is, in my judgment, necessary for the purposes connected with protecting members of the public from a risk of terrorism to subject him to a control order”.[48]Wilkie J returned to this point later in his open judgment when he concluded at paragraph 211 (again with my emphasis added) that:- “My conclusions on the issues of principle are that there are and were reasonable grounds for suspecting that AM has been involved in terrorism related activity, and that it was and remains necessary to protect members of the public from the risk of terrorism to make a control order. The level of terrorist activity is extremely high. He was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed.”[49]Wilkie J when considering the type of restriction which it was necessary to impose on AM said (again with my emphasis added) that:- “216 In my judgment, having reviewed the evidence and having had an opportunity to assess AM, the level of seriousness of the risk he poses is very high. In my judgment there is overwhelming evidence that he was a person prepared to martyr himself and, in so doing, to kill large numbers of other people. In his dealings with the SSHD and the court, in my judgment, by his denial of any past involvement in terrorist related activity and of any intent so to be involved in the future, he has repeatedly, systematically and carefully lied. It is my judgment that he is an intelligent, capable, well-trained individual who remains committed to terrorist activity. His past involvement has involved the use of electronic communication including by mobile telephone. The fact that, save for two matters, there are no open allegations of breach by him of the terms of the control orders does not, in the light of the foregoing, persuade me that he is a person for whom a light touch series of obligations is remotely appropriate. In my judgment the SSHD was entitled to impose more onerous obligations than were initially imposed”.[50]In response, Mr Moloney says that I should not attach much weight to these conclusions as they related to matters prior to July 2009, which was the date of the hearing before Wilkie J and that these conclusions now have to be reconsidered on this appeal in the light of subsequent developments relating first to what has happened to AM’s alleged contacts, second to the effect of the control order on AM and third to subsequent developments in AM’s life.[51]He submits that AM could not be a threat to security because of developments subsequent to the imposition of the control order on AM and in particular that:- a) Mr Rashid Rauf, who is the individual who the security services assess as having been “responsible for coordinating the transatlantic airlines plot” is said to have been killed on 22 November 2008; b) Many of the individuals associated with the alleged “airline plot” have been convicted and sentenced to imprisonment ; c) AY who is the individual who the Security Services assess as being responsible for providing the operational tasking to AM, is now subject to a control order ; d) AM’s use to any “extremist agenda” has been seriously disrupted because the plot in which the Security Services assess AM as being involved has now been averted; and that e) There is no evidence that AM has had any involvement in terrorism-related activities in the four years he has been subject to a control order or that he has had contact, whether direct or indirect, with any alleged extremist during those periods, including Mr Rauf, AY, or Mr Mohammed Al Ghabra, whose role and activities I will describe in paragraph 80 below.[52]Mr Moloney seeks to fortify his point by submitting that those who have been made the subject of control orders are thereafter regarded by their operators as being of no use to them. He relies on what Lord Carlile of Berriew QC, then the Independent Reviewer, stated at paragraph 50 of his Third Report which was that:- “After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted. The terrorist will know that the authorities will retain an interest in his or her activities and contacts, and will be likely to scrutinise them in the future. For those organising terrorism, a person who has been subject to a control order for up to two years is an unattractive operator, who may be assumed to have the eyes and ears of the State upon him/her. Many terrorists prefer to use for operational purposes ‘clean skins’, persons who are not known ever to have been arrested, as largely has been evident from terrorism plots uncovered in the UK since September 2001, and indeed well before in a context different from violent jihad. A controlee most certainly does not fall into the category of a ‘clean skin’”.[53]Mr Moloney’s next ground for contending that the conclusions of Wilkie J are no longer applicable is based on developments in AM’s youth. So he was therefore just 19 years of age when the control order was imposed on him and he was only 21 years of age at the time of the hearing before Wilkie J, while even now he is only 23 years of age. According to Mr Moloney, AM has grown up since the imposition of the control order on him. He has completed two years of a degree at his university for which he was awarded a First Class mark in 2011 while funding this course himself through a student loan. By being on this course, it is said by Mr Moloney that AM has been exposed to a range of people from different backgrounds and different cultures with the consequence that this has allowed him to develop a broad range of friends and associates. In addition to supporting himself, AM is gainfully employed as a customer services clerk. He also points out that the stresses on AM’s family caused by the control order have led to the breakdown of the marriage between AM’s parents and their subsequent separation. In consequence AM as the eldest male in his immediate family has the added responsibility of caring for his sisters.[54]Mr Moloney submits that there is clear evidence that the age of an individual is an important factor when considering their attitudes. He points out that there is a key principle in the sentencing regime that young people grow up and mature. He reminded me that Lord Bingham of Cornhill explained in R (Smith) v Secretary of State for the Home Department[2006] 1 AC 159 that (with my emphasis added) there is:- “12… the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation. It would in many cases subvert the object of this unique sentence if the duty of continuing review were held to terminate when the child or young person comes legally of age”.[55]The difficulty for AM is, as I have explained, that Wilkie J in his Review Judgment reached conclusions that AM was committed to terrorist activities and that he is dishonest as well as being intelligent and well-trained. The firmness of those conclusions is shown by the language used by Wilkie J who, as I have explained, stated (with emphasis added again) that:- “216…. having reviewed the evidence and having had an opportunity to assess AM, the level of seriousness of the risk he poses is very high. In my judgment there is overwhelming evidence that he was a person prepared to martyr himself and, in so doing, to kill large numbers of other people. In his dealings with the SSHD and the court, in my judgment, by his denial of any past involvement in terrorist related activity and of any intent so to be involved in the future, he has repeatedly, systematically and carefully lied. It is my judgment that he is an intelligent, capable, well trained, individual who remains committed to terrorist activity….”[56]These and other conclusions of Wilkie J, which I have quoted in paragraphs 47 to 49 above (such as thatAM “was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed.”) show that as at December 2009, AM had to be regarded as someone committed to terrorist activities as he had been for the two previous years.[57]There is no positive evidence to suggest, let alone to show or to prove, that AM has changed his intentions or his views or that he admits that he ever had been committed to terrorist activities, although I cannot and do not draw any inference adverse to AM from his failure to give evidence at the present hearing.[58]It is true that with maturity some young people abandon their criminal past and instead become more law-abiding but that is usually where they accept the folly of their earlier criminal activities. As I have explained that such a change is unlikely to apply to somebody, like AM, who wished to become involved in terrorist activities because of his strongly held views and ideology especially where he has been found to be dishonest and where he still denies that he has been involved in terrorism or extremist behaviour. It is noteworthy that AM still denies any involvement in the past with terrorist activities or that he has held any extremist views and this evidence was rejected by Wilkie J. Having considered all the points put forward by Mr. Moloney with care, I have come to the clear conclusion that I should approach these appeals on the basis found by Wilkie J, who reached his conclusions and in particular in relation to his commitment to terrorist activity after seeing and hearing AM give evidence. I am fortified in coming to this conclusion because the Court of Appeal considered that the reasoning and conclusions of Wilkie J were “meticulous and compelling”[9]. I will bear in mind not only the matters to which Mr. Moloney has referred relating to the developments since Wilkie J dealt with this case, such as those set out in paragraphs 23 to 25 above, but also two additional matters.[59]First, I will take into account the stresses produced by the control order, which according to AM, led to the breakdown of his parents’ marriage and their subsequent separation. AM now finds himself in the position of being the eldest member of his immediate family with the added responsibility of caring for his sisters only one of whom is over the age of 16. This fact has, according to Mr Moloney, to be considered in the light of the alleged distress and intimidation of AM’s mother and sisters, which according to AM have been caused by the repeated unannounced visits from police officers who were monitoring his control order. Furthermore the control order had a substantial effect on AM, who has compared the “stress and anxiety” of it to “psychological torture”.[60]Second, it is a relevant factor that AM states that it is difficult for him to develop relationships because of the terms of the control order, the wearing of a tag is demeaning, while the reporting is stressful and frustrating and the effect of the order has been detrimental to members of AM’s family. In consequence AM’s mother has been suffering from deteriorating health due to stress and AM’s parents have separated.[61]I will consider the appeals in the light of all these factors as well as the contents of the witness statements adduced by AM and the principles of law to which I have already referred.

VII. The Monitoring Calls Appeal

[62]PTA/11/2011 is an appeal against the refusal by the Secretary of State to modify the conditions imposed under obligation 3(b) of AM’s control order so as to reduce the number of calls he is required to make each day to the electronic monitoring company.[63]Obligation 3(b) states that:- “each day, you must report to the monitoring company (as notified to you): (a) via the dedicated line provided by the monitoring company or on the mobile phone permitted under obligation (7.1) once between 12.00 and 13.00 hours every day and once between 16.00 and 17.00 hours every day…”.[64]The grounds of appeal are that the Secretary of State has failed to give adequate weight to firstly the difficulties caused to AM in having to make such regular telephone calls during the working day when he is at university and/or in the workplace, secondly the additional pressure this puts on AM in maintaining his anonymity in any control order proceedings, thirdly the ease with which the Secretary of State is and would be able to monitor AM’s movements; and finally AM’s continuing record of compliance with this aspect of the control order. It is also said that this condition is contrary to the stated policy of moving towards an exit policy for AM’s control order but that in any event, it does not preclude AM from travelling a long distance before he has to report by monitoring calls.[65]The Secretary of State’s case for refusing to modify this justification is that AM would seek to engage in terrorism-related activity if given the opportunity to do so and that he would have a greater opportunity to engage in such activities if there was a reduced requirement on reporting and if he absconded from the control order. Obligation 3(b) is considered necessary by the Security Service in order to reduce the risk of AM absconding, because if obligation 3(b) were removed, it would increase the window of opportunity for AM to abscond especially as his curfew hours are only from midnight to 8am.[66]So it is contended by Miss Giovannetti that the absence of an obligation to make the monitoring calls means that during the 16 hours when AM is not under curfew, he could abscond and if this occurred, this fact would not be realised until his curfew started again 16 hours later because it would only be at that point when the monitoring company would be alerted to AM’s failure to return to his residence.[67]It is said by the Secretary of State that the window of opportunity available to AM under the existing order is more limited and that removing it, as advocated by AM, would increase the risk that he would be able to abscond more successfully for two reasons. First, he would be able to travel further within the United Kingdom if he were to be allowed a longer period of time before his attempt to abscond would be detected. Second, it is said that AM would have a greater chance of moving abroad if he is allowed a longer period of time before his attempt to abscond would be noted.[68]This point, according to the Secretary of State, has added force because first AM is on a short eight-hour curfew; second he is not subject to any geographical boundary; and third AM was, as a result of the control order, required to reside in a flat, which is less than two kilometres away from his old address meaning that he would be near his old associates, who might be able to facilitate an attempt to assist AM to abscond.[69]In order to succeed in resisting this appeal, the Secretary of State has to show that the present restriction is necessary, because of the risk that AM will engage in terrorist activities. I have no doubt that she can do so because even after taking account of the matters relied on by Mr Moloney to which I have referred, the conclusions of Wilkie J in the Review judgment in December 2008 relating to AM’s continuing commitment to terrorist activities are of crucial importance. Wilkie J said of AM that “(H)e was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed.” [216].[70]In the light of my conclusions about the threat which AM poses, I regard the present restriction as being necessary. The restriction is also proportionate, not merely because AM can make his monitoring calls from his mobile telephone wherever he might be, but in addition, he is given a window of an hour on each of the two occasions in which he has to make a call. Electronic tagging would not provide adequate safeguards for the reasons set out in the closed judgment. If, which is not the case, I had any doubts about reaching this conclusion, I would have been fortified in reaching that conclusion by two factors. First, because the Home Office sensibly wrote to AM’s solicitors on 6 April 2011 stating that:- “We would be prepared to consider any request your client may wish to make for modification of the times he is required to call the electronic monitoring company.”[71]No reply was received to that letter, which I consider to have contained a reasonable offer bearing in mind that AM’s university timetable is arranged in one-hour slots, which start on the hour so that the time for monitoring calls could be shifted. Also no cogent argument has been put forward as to why this offer was not responded to and why it would not mitigate the problems, which have formed the basis of AM’s appeal. I find the failure of AM’s solicitors to respond to the letter of 6 April 2011 surprising and unhelpful to AM’s cause, especially as this offer shows that the Secretary of State is anxious to cause minimum inconvenience for AM. His failure to respond undermines to some extent AM’s case that the present obligation causes serious difficulties for him while he is at university or in the workplace. Second, Wilkie J found, as I explained in paragraph 47, that AM was an untruthful witness and so I would not have been prepared to accept his evidence without corroboration or some independent support, which has not been forthcoming.[72]To my mind the flexibility, which is contained in the existing obligation, and that which has been offered in the unanswered letter of 6th April 2011, is such that the risk to national security, which would result from complying with AM’s request, is not outweighed by any inconvenience that AM might suffer. The existing obligation is necessary to protect the public from terrorist related activity and is proportionate.[73]For these reasons and also for the reasons set out in the accompanying closed judgment, I dismiss this appeal. VIII.

(i) Introduction

[74]PTA/7/2010 is an appeal against the decision of the Secretary of State to refuse to modify obligation 7.1(c) of AM’s control order to permit him to use a USB memory stick to transfer data from his home computer to his university computer.[75]The present obligation 7.1(c) states that:- “7.1 Subject to obligations (7.2), (7.4), and (7.5), you shall not (whether directly or indirectly) use, have, acquire or keep (whether in or outside the residence) or bring or permit into the residence the following without the prior permission of the Home Office:… (c) any equipment and/or item/s that could be used to store digital data.”[76]The grounds of the appeal are that the decision to refuse to modify that obligation was irrational and/or unfair or unnecessary because first, no rational reason has been given as to why it is necessary to prohibit AM from using a memory stick; second, the Secretary of State has failed in reaching his decision to give any or adequate weight to the importance of AM being able to work at home especially given the other restraints imposed on him such as the curfew; third, the Secretary of State was wrong to rely on the facilities available at the university, since this does not enable AM to work at home or to provide the same opportunities for him in terms of succeeding in his course as other students and; finally, it is contrary to the stated policy of moving towards an exit strategy.[77]The case for the Secretary of State is that the obligation prohibiting AM from possessing a USB memory stick is that it is necessary to mitigate the high risks to national security posed by AM, including those set out in paragraphs 46 to 49 above. It is also said by Miss Giovannetti that any relaxation of the obligation must be considered against the risk that the possession of a USB memory stick might allow AM to engage more easily in extremist activity. The Security Service assess that it is necessary to maintain the obligation preventing AM from possessing a USB memory stick for four main reasons which I will now set out. (ii). Aid to Extremist Communications[78]The first reason is that AM would be able to use a USB memory stick to communicate with extremist associates because messages could be stored on a USB memory stick and then physically passed to an extremist associate. The Security Service considers that AM could do so to further his terrorist-related activities and that a USB memory stick could be used by AM to facilitate email communications with his extremist associates.[79]The contention that there is a connection between AM and extremist associates is based on two matters. First, AM is assessed by the Security Service to have been in direct contact with AY, the purpose of which the Security Services assesses was to organise travel to the North West of England and to brief AM on his role in the transatlantic airlines plot, to instruct him in the construction of improvised explosive devices (“IEDs”) and to record a martyrdom video that would have been forwarded to AQ in Pakistan for transmission after the planned attacks.[80]Second, AM is assessed by the Security Service to have links to Mohammed Al Ghabra, a prominent UK-based Islamist extremist with links to a significant number of extremist individuals. Further details of AM’s connections with Al Ghabra are set out in the accompanying closed judgment. On 12 December 2006, Al Ghabra was added to the United Nations 1267 Committee List of Individuals or Entities Belonging to or Associated with Taliban and AQ, which is also known as the UN Sanctions List and the Security Service assesses that Al Ghabra may assist AM in facilitating his travel abroad for terrorism-related purposes should AM seek such assistance. I regard these assessments as valid. (iii). Aid to Attack Planning[81]The Security Service assesses that a USB memory stick might be used as an aid to attack planning in order to store schematics, plans, manuals, or other materials that could aid further extremist activity such as instructions on IED construction. The Secretary of State points out correctly that USB memory sticks have advantages over paper documents to those who wish to conceal their activities, because the USB memory sticks can be easily concealed while the material on them can if necessary be quickly deleted. In addition, the memory sticks enable complex technical instructions and similar material to be stored inconspicuously while it would be voluminous in printed form.[82]It is also said that if AM found such material on the internet or if he was sent it by extremist associates, then possession of a USB memory stick would allow AM to transfer it to his home computer so as to be able to view it in the privacy of his own home and thereby not run the risk of looking at such material on a public computer in a public location, where these activities might be noticed. (iv). Difficulties of monitoring and enforcement[83]The third reason is the difficulty of monitoring and enforcing this obligation because a USB memory stick, which is so small that first it can therefore be easily concealed, and second the data on it can be easily deleted. It is also said by the Secretary of State that the data contained within a USB memory stick is not apparent from visual inspection in contrast to written documents. In consequence, the possession of a USB memory stick grants AM a degree of security and it increases his ability to engage in extremist activity. Even if AM was given a memory stick by the Home Office which they could inspect, there would still be the risk that he might acquire another one and use it for terrorist-related activities, which it would be difficult to monitor. Even if the Security Service could obtain from AM the USB memory stick used by him, then in the words of AM’s expert Mr. Vaughan in his report of 24 June 2011:- “ 3.i Internet history and files (including those stored on a USB stick can be permanently removed and rendered irrecoverable using file wiping and internet artefact removal software File wiping and internet artefact removal software are both commercially and freely available”.

(v) Non -compliance with obligations

[84]The fourth factor relied on by the Secretary of State is AM’s non-compliance with obligations unconnected to extremist activities, and accordingly in my view such matters are of no significance, other than to constitute an answer to a claim that AM is conscientious in complying with the restrictions imposed on him. (vi). Proportionality[85]Turning to the question of proportionality, the Secretary of State points out that his control order obligations have already been relaxed to allow him to use a non-internet connected computer and a printer at home. Nevertheless the Security Service considers that the risk to national security to which I have referred as a result of allowing AM to use a USB memory stick are not outweighed by the impact on his ability to take part in his university course.[86]It does not appear to be disputed that AM has facilities at university which provide him with 24-hour computer access as its library is open late into the night and early in the morning, although of course AM is subject to a curfew from midnight until 8am. Nevertheless, the Security Service considers that AM’s access to university facilities even with the present restrictions is not significantly less than that enjoyed by other students.[87]At the end of the day, it is necessary to consider whether AM’s opportunities for succeeding in his course are diminished by him being prohibited from using a USB memory stick to such an extent that it will outweigh the significant risk to national security. In my view, there is a very strong case for showing that there are very significant risks to national security if the appellant does have ready access to a USB memory stick as it may allow him to engage more easily in extremist activities.[88]It is noteworthy that with regard to electronic communication, as I have explained in paragraph 49 above, Wilkie J said at paragraph 216 of his Review judgment (with my emphasis added) that:- “…It is my judgment that he is an intelligent, capable, well trained, individual who remains committed to terrorist activity. His past involvement has involved the use of electronic communication including by mobile telephone. The fact that, save for two matters, there are no open allegations of breach by him of the terms of the control orders does not, in the light of the foregoing, persuade me that he is a person for whom a light touch series of obligations is remotely appropriate. In my judgment the SSHD was entitled to impose more onerous obligations than were initially imposed”[89]I have already explained why I regard these comments as still appropriate today. Even after considering the points made by Mr Moloney, these comments show why it remains necessary and proportionate for the present obligation to remain in force even after taking into account of the loss of opportunity to AM of not having a USB memory stick, bearing in mind that he has access to computer facilities at university, access to a car and the fact that he already has to travel to university daily to attend lectures. If, which is not the case, I had any doubts about this conclusion, I would have reached it because first there is no evidence from the university authorities that AM has been handicapped in his studies by this or any other restriction on him and second, he is doing very well on his course having obtained first-class marks. In my view, this appeal must be dismissed for these reasons and the material in the closed judgment contains additional reasons why this appeal must be dismissed.

IX. The Home Internet Access, Parental Internet Equipment and University Internet Access Appeals

[90]PTA/16/2010 is an appeal against the Secretary of State’s refusal to modify obligation 7.1(a) and (b) (prohibition on equipment capable of connecting to the internet) of the appellant’s control order, in order to allow him to use an internet-connected computer at home for academic purposes.[91]PTA/18/2010 is an appeal against the Secretary of State’s refusal to modify obligation 7.1(a) and (b) in order to allow him greater access to the internet at university for academic purposes. Obligations 7.1(a) and (b) state that:- “Subject to obligations (7.2), (7.4), and (7.5) you shall not (whether directly or indirectly) use, have, acquire or keep (whether inside or outside the residence) or bring or permit into the residence the following without the prior permission of the Home Office:(a) any equipment capable of connecting to the internet (either directly or indirectly);(b) any computer/s or components thereof.” (a) any equipment capable of connecting to the internet (either directly or indirectly); (b) any computer/s or components thereof.”[92]PTA/17/2010 is an appeal against the Secretary of State’s refusal to modify the conditions imposed under obligation 15.2(a) of his control order, in order to permit him to enter his parents’ residence without his parents being required to disconnect all equipment capable of being connected to the Internet. Obligation 15.2(a) states that:- “15.(2) You may enter your parents’ residence on up to four occasions each week, subject to (a) written consent from your parents to, and their compliance with, the conditions given in writing at the time of the notification of the imposition of this control order. This consent must be provided in writing to the Home Office prior to you visiting your parents’ residence.”[93]It is convenient to deal with these appeals together and the basis of them is that the Secretary of State has failed to show even if each condition is necessary, that the imposition of each condition (whether considered individually or cumulatively) constituted a proportionate means of achieving a legitimate aim in respect of the Home Internet Access Appeal and of the University Internet Access Appeal. The case for AM is also that the Secretary of State(a) has failed to give adequate weight to the importance of him being able to complete his studies, especially in the light of the other constraints upon him;(b) has failed to appreciate the ease in which officials could examine any hardware that AM uses and/or monitor the usage of the internet by AM at home; and(c) took an irrelevant factor into consideration by relying on AM’s ability to make use of internet-connected computers at his university for his academic study, although this did not entitle AM to work at home or to have the same opportunities for him in succeeding on his course.[94]So far as the Parental Internet Equipment Appeal, the case for AM is that by not agreeing to remove this requirement, the Secretary of State first failed to give any or adequate weight to the serious and disruptive impact that this requirement had on AM’s ability to develop his family relationships and second ignored the ease with which the Secretary of State’s officials could examine any hardware used by AM’s family members and/or monitor their internet usage following AM’s visits to their house.[95]The Secretary of State contends that each of these obligations (whether considered individually or cumulatively) are necessary because the Security Service assesses that giving AM unfettered or greater access to the Internet would pose an unacceptable national security risk. That conclusion is based on four specific reasons.

(i) Aid to extremist communication

[96]The first ground relied on by the Secretary of State is that Internet access would allow AM to communicate with extremist associates electronically and that he could do so to further his terrorism-related activities.[97]This contention has to be considered in the light of the fact that AM is at present prohibited by his control order obligations from using the Internet, apart from having limited access at university and if he sought to use other Internet terminals to compose an email, there would then be an increased chance that he could be discovered. The position would be different if he were allowed Internet access at home or if the equipment capable of being connected to the Internet at his parents’ home was not disconnected because he would then be able to compose and send such messages in the security of a private environment. This seems to me to be a powerful argument which I accept in the light of the conclusions in Wilkie J’s review judgment, which I have quoted in paragraphs 47 to 49 above. (ii). Aid to attack planning[98]The second ground is that the Security Service assesses that Internet access would allow AM to research and to view schematics, plans, manuals, videos or other material and that they could aid furtherance of extremist activity such as instructions on IED construction with such material being capable of being saved on an online file storage service for later retrieval for reference.[99]An additional concern is that if AM found such material on the Internet or received it from his extremist associates and if he had access to Internet at home or at his parent’s address, this would then allow him to view it in the security of a private environment rather than risking looking at such material on a public computer in a public location. I regard this as a cogent point. (iii). Difficulty of monitoring and enforcement[100]The third ground is that the Security Service assess that they could not carry out thorough periodic checks of computers used by AM whether at his own address or at his parents’ address so as to mitigate the risks that AM would use the Internet for terrorism-related purposes. The basis of this point is that Internet browsing history can be easily and quickly deleted from the computer and that there are other methods which AM could use in order to attempt to hide his activities on the Internet.[101]The critical issue in deciding these appeals is whether AM could use the Internet for terrorism-related purposes without the Security Service being able to prevent or discover these activities. There has been much evidence on this issue from both Mr. Vaughan on behalf of AM and from the Security Services and which had focussed on the case for AM that first deletion of Internet history can in some regards be detected and second that AM’s Internet activity could be effectively monitored by the Security Service or by the police. I must now summarise and comment on the evidence. (iv). Detection of wiping[102]Mr. Vaughan has explained that file-wiping software is widely and freely available and this will overwrite previously stored material, which would include information concerning the websites which had been visited and when this had occurred. He has also stated that very limited technical knowledge is needed to effectively wipe files and to remove Internet history. Mr. Vaughan also points out that there are guides freely available on the Internet, which assist anybody who wishes to wipe files. He also states that this software, which enables wiping or overwriting existing matter, can be used for single files or for group files.[103]None of this is controversial, and what is significant is his contention that where wiping software or Internet activity removal software is used, then this (in his words with my emphasis added) “would usually be easily identifiable” on the computer and if this software is uninstalled, “there may also be remnants on the hard drive which indicated the software’s initial presence”.[104]Mr. Vaughan accepts (again with my emphasis added) that:- “if the file wiping software was executed by media other then the computer’s internal hard drive, then the software would not be detectable. By removing the USB interfaces, the DVD/CD drives and access to other media that may be inserted into the computer to execute a program, the possibility of a user being able to utilise software by other means can be removed”.[105]The response of the Secretary of State is that even if it was correct that the wiping could be detected, this would not enable the erased material to be recovered and this would provide insufficient protection against the national security risks posed by AM. In any event, the suggestion of Mr. Vaughan that the use of wiping or overwriting would “usually be easily identifiable” on the computer and if this software is uninstalled, “there may also be remnants on the hard drive which indicated the software’s initial presence” shows that there may well be cases where there were no such remnants and that the downloaded Internet wiping software and the act of wiping could not be detected. Furthermore, in any event Mr. Vaughan accepts that there is a method of wiping which is unambiguously non-detectable and this would involve removing the hard drive from the machine, taking the hard drive to another place and using wiping software run from another computer, although precautions could be taken.[106]I accept all these contentions and I am satisfied that in consequence the present restrictions are necessary because permitting AM home internet access would present unnecessary risks to national security.

(v) Monitoring of Internet activity

[107]The case for AM is that any threat to national security caused by his use of the Internet could be mitigated by the Security Service monitoring his use of the Internet and by blocking any inappropriate content. Mr. Vaughan states that the Security Service could block inappropriate content by providing a list of keywords, which would be inserted into the management software so as to block any access to any material, which related to these key words.[108]The Secretary of State puts forward a convincing case why this would not be effective, especially as against a person who would be determined to circumvent the restrictions and AM falls into that category because, as I have explained, Wilkie J stated in paragraph 216 of the review judgment that AM “is an intelligent, capable, well-trained individual who remains committed to terrorist activity.”[109]As the Security Service explains, it would be impossible to identify the full range of key words which would need to be blocked so as to prevent AM from obtaining access to extremism-related material online. These key words would have to include a huge range of words not only in English but also in a wide range of foreign languages. I can add that in my experience of dealing with control orders and other terrorism-related cases, perfectly innocent English words are often used by terrorists so as to conceal their terrorism-related activities.[110]Another difficulty of seeking to identify key words, which could be used to block access to web sites, is that this list would have to be constantly and continuously monitored and expanded so as to take account of new websites to which access should be blocked. I unreservedly and without any hesitation accept that any attempt to block Internet access by blocking key words would not constitute an effective or a reliable way of preventing AM from obtaining access to extremism–related material online.[111]Another way in which it had been suggested that AM could be prevented from using the Internet to have access to unauthorized material is by ensuring that he only has “standard user” rights which would prevent him from conducting certain activities such as installing software or running programmers other than those installed and controlled from the Administrator Account which would be that of the Security Service and which could be password protected.[112]At first sight, this might appear to be a sensible basis on which AM could be allowed Internet access, but it seems clear that it would not provide sufficient safeguards against AM using the Internet for any purpose he wished including terrorism-related or extremist purposes. The evidence of the Security Service was that:- “…due to vulnerabilities in the Windows operating system, and exploits available on the Internet to perform privilege escalation, the “Standard User” could gain access to “Administrator” privileges, being able to run or delete software and Windows services, and subvert the monitoring software. It is not therefore possible to guarantee the integrity of the Administrator account, and by extension any monitoring software or account control implemented under the Administrator account”[113]Mr. Vaughan in response has accepted (with my emphasis added) that:- “3…(vi) …without access to file wiping software a user would find it difficult, but not impossible to “hide” their user privilege escalation from detection by computer forensic techniques. As outlined in this report, however, there are a number of steps that can be taken to mitigate the risks of a forensically aware user from evading detection”.[114]Mr. Vaughan does suggest various ways in which the risk of a user escalating its privileges can be mitigated, but it is of critical importance that they do not prevent escalation from being detected. He had explained earlier in his report that even the latest and most secure variant of the Microsoft operating system:- “3…(ii)…has been compromised by hackers who have identified mechanisms by which to escalate their user privileges. Although Microsoft often issue ‘patches’ , which will fix a security flaw, new mechanisms by which to escalate one’s user privileges are constantly being developed and documented”.[115]The picture that emerges is that it would be impossible to successfully monitor AM’s use of the Internet and the threat to national security of his access to a home Internet cannot be mitigated. It has been pointed out that he could wipe material without the risk of detection by the police. The present restrictions remain necessary for the reasons set out in this open judgment and I should add that what is said in the closed judgment constitutes additional reasons for that conclusion. (vi). AM’s non-compliance with obligations[116]The fourth ground relied on by the Security Service for opposing the appeal is that AM has previously broken his obligations which are under appeal. It is said that on 21 September 2010 police control contact officers carried out an unannounced visit to the residence of AM’s parents and this followed notification of AM to the Home Office that he was intending to visit his parents that afternoon. When the contact officers arrived at the residence of AM’s parents, they spoke with his father, who appeared surprised at their unexpected arrival and the officers considered that AM’s father was attempting to physically prevent their initial entry to the house and subsequent access to the first floor by the staircase. The contact officers followed AM’s father upstairs where they witnessed him unplugging a computer from the wall and this was at a time when AM was present in the home of his parents.[117]It is necessary to place this in perspective because Secretary of State places no reliance on this matter as the Security Service do not consider that this instance of breach of the control order was necessarily in relation to extremist activities. I have said, I do not consider that this has any relevance other than to show that AM cannot say that he has always been totally compliant with the terms of the control order. The Security Service consider that AM would take advantage of any relaxation of the obligations for the furtherance of his extremist activity.[118]The final reason why the Security Service object is that the opportunities available to AM in terms of succeeding in his course are not less than those enjoyed by other students. This is a good point bearing in mind AM’s success on his course and the absence of any independent evidence showing that he has been disadvantaged by the obligation under appeal. In any event, the Security Service consider that any inconvenience to AM is outweighed by the risk to national security posed by allowing AM to have Internet access at home in the way he suggests or to require his parents to disconnect all equipment capable of being connected to the Internet when he is there.[119]A further point made by Miss Giovannetti is that between the initial modification allowing AM access to named websites in December 2009 and November 2010, when the present request was made, AM did not request permission from the Home Office to access any additional websites. I agree that this is an argument, but not a decisive one, in support of the contention that the access that AM was already allowed to the Internet was sufficient for his academic purposes.[120]In any event when, since November 2010, the appellant has asked for permission to access further websites and where he has provided the address of those websites he wished to access, permission has been granted in all cases. Thus it is said that the present restrictions are proportionate and this is also a cogent point.[121]In determining this issue the critical feature is an assessment of the risk that AM would become involved in terrorism-related activities. The best assessments of AM is that given by Wilkie J in his Review Judgment from which I have quoted in paragraphs 47 to 49 above and which have been upheld by the Court of Appeal such as:- "216. In my judgment, having reviewed the evidence and having had an opportunity to assess AM, the level of seriousness of the risk he poses is very high. In my judgment there is overwhelming evidence that he was a person prepared to martyr himself and, in so doing, to kill large numbers of other people. In his dealings with the SSHD and the court, in my judgment, by his denial of any past involvement in terrorist related activity and of any intent so to be involved in the future, he has repeatedly, systematically and carefully lied. It is my judgment that he is an intelligent, capable, well-trained individual who remains committed to terrorist activity.[122]It must be stressed that having considered all the points put forward by Mr. Moloney to the contrary, I am satisfied that this represents the present assessment of the risk which AM poses. I have concluded that it is necessary to protect the public from terrorist-related activities conducted by AM and that it is proportionate to keep the existing obligations. The closed judgment provides additional reasons for this conclusion.

X. Conclusions

[123]For all these reasons, notwithstanding the able and detailed submissions of Mr. Moloney, these appeals must be dismissed.

Cited in 1 later judgment