Secretary of State for Home Department v AM [2012] EWHC 1854 (Admin)

Case No PTA/14/2011

[2012] EWHC 1854 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005

AND IN THE MATTER OF THE TERRORISM PREVENTION AND INVESTIGATION

MEASURES ACT 2011

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06/07/2012

Before

MR JUSTICE MITTING

Between

THE SECRETARY OF STATE FOR HOME DEPARTMENTApplicant

AMRespondent

MISS LISA GIOVANNETTI QC AND MISS CARYS OWEN

(instructed by THE TREASURY SOLICITOR) for Applicant

MR DANIEL SQUIRES AND MISS ELIZABETH PROCHASKA

(instructed by BIRNBERG PEIRCE SOLICITORS) for Respondent

MR MOHAMMED KHAMISA QC & MISS SHAHEEN RAHMAN

(instructed by the SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates

Hearing Hearing dates: 19th, 20th,21st and 22nd June 2012

Judgment

MR JUSTICE MITTING :

Background

[1]AM is a 24 year old British citizen. He was suspected of would-be participation in the transatlantic airlines plot of 2006, but was not arrested or made the subject of restrictive measures in that year. A control order was made in respect of him on 21st June 2007 and renewed just before each anniversary until and including 20th June 2011. A review hearing under section 3(10) of the Prevention of Terrorism Act 2005 was conducted by Wilkie J between 20th and 31st July 2009. In written judgments handed down on 21st December 2009, Wilkie J upheld the order and, with some modifications, its conditions. An appeal against his judgment was dismissed by the Court of Appeal on 21st June 2011. There have been three modification appeals under section 10(3) of the 2005 Act, the last of which was dismissed by Silber J on 3rd October 2011.

[2]On 23rd January 2012 the control order was revoked by the Secretary of State and a notice served under the Terrorism Prevention and Investigation Measures Act 2011 (The TPIM notice). This is my open judgment on the review of the TPIM notice under section 9 of the 2011 Act. It is also my open judgment on AM’s appeal against the last renewal of the control order under section 10(1) of the 2005 Act. There are also confidential and closed judgments on both issues. (The need for a confidential judgment arises out of the disclosure to AM and his legal team in 2009 of information which they undertook to keep confidential and which became the subject of the confidential, but not closed judgment of Wilkie J. Identical undertakings have been given for the purpose of these proceedings in respect of the same information). I will deal first with the review of the TPIM notice.

The review of the TPIM notice – law

[3]Section 2(1) of the 2011 Act permits the Secretary of State to impose specified measures on an individual if conditions A – E in section 3 are met. Under section 9, my function is to review the decisions of the Secretary of State that the conditions set out in section 3 were met when the order was made and continue to be met; and in doing so I must apply the principles applicable on an application for judicial review. The conditions with which I am concerned are conditions A – D:

“(1) Condition A is that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism- related activity (the “relevant activity”). (2) Condition B is that some or all of the relevant activity is new terrorism-related activity. (3) Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual. (4) Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.”

For the purpose of this review, “new terrorism- related activity” has the meaning prescribed by section 3(6)(a):

“If no TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring at any time (whether before or after the coming into force of this Act).”

[4]“Terrorism” has the same meaning as in section 1 of the Terrorism Act 2000 (section 30 of the 2011 Act) and “terrorism-related activity” is any one or more of the acts and conduct set out in section 4 of the 2011 Act. No issue arises about these definitions: it is common ground that the activities in which AM was believed to have been involved before 21st June 2007 were terrorism-related activities and that there is no open evidence or suggestion that he has undertaken any such activities since then.

[5]Section 5 imposes a two year limit for TPIM notices, by providing that a TPIM notice is in force for one year and may be extended on only one occasion – if conditions A, C and D are met. The combined effect of section 3(2) and (6)(b) is that once a TPIM notice has been in force in relation to an individual, specified measures may only be imposed by a new TPIM notice if the Secretary of State reasonably believes that the individual has been involved in terrorism-related activity occurring after the original notice came into force.

[6]Paragraph 4 of schedule 8 to the 2011 Act provides, “New powers not affected by previous control order 4. The Secretary of State’s powers under this Act in relation to an individual are not affected by a control order having been made in relation to that individual.”

[7]Under section 7(5), I have the power to quash the TPIM notice or measures specified in it and/or to give directions to the Secretary of State for the revocation of the notice or the variation of measures specified in it.

The TPIM notice – the issues

[8]The principal issues which I have to determine are, i) whether conditions A – D are satisfied In particular whether ii) the terrorism-related activity occurring before June 2007 in which AM was believed to have been involved suffices to justify the imposition of the measures specified in the TPIM notice in the case of an individual who has already been subject to a control order, founded on the same activities, for 4 ½ years and iii) whether the Secretary of State is entitled to rely on AM’s perceived failure to demonstrate a change in outlook since 2006/07 to justify the imposition of the measures specified in the TPIM notice iv) whether individual measures are necessary and/or justified. Although Mr. Squires does not formally concede that the Secretary of State reasonably believes and has reasonable grounds to believe that AM was involved in terrorism-related activity before June 2007, he has helpfully indicated that it is not a live issue. For that reason, I have been able to set out my conclusions on that issue in all three judgments shortly. They are, nonetheless, my conclusions. It would not, in principle, be sufficient for the Secretary of State to rely only on Wilkie J’s conclusions to form the reasonable belief which she must have or for me to uphold that belief solely by reference to his findings.

Issue (ii)

[9]Mr. Squires makes a fundamental and principled challenge to the imposition of measures on AM, which I summarise as follows. Because there is no open evidence or suggestion that AM has been involved in terrorism-related activity since 21st June 2007 and was the subject of a control order until it was revoked on 23rd January 2012, the 2011 Act did not empower the Secretary of State to impose specified measures by the TPIM notice served on that date. Section 2(1) gave to her a discretion, based upon a judgment made under section 3(3) that it was necessary to impose the measures which could only be exercised to promote the policy and objects of the Act. In reviewing the Secretary of State’s decision, I must discern the mischief to which the Act is directed. The mischief is, or includes, the excessive (“disproportionate”) exercise of state power to protect members of the public from a risk of terrorism by imposing obligations on an individual for a renewable and potentially indefinite period. To that end, I am entitled to and should have regard to the statements made by the Secretary of State to Parliament when introducing the Bill. Taking all that into account, I should conclude that, in the absence of a change in circumstances including, but not limited to, involvement in terrorism-related activity since the imposition of the control order, the Secretary of State was not entitled to serve a TPIM notice on AM or, if she was, should not have done so.

[10]I deal first with Mr. Squires’s invitation to examine what the Secretary of State said to Parliament on introducing the Bill. He accepts that the first of the three requirements identified by Lord Browne-Wilkinson in Pepper v. Hart

[1993] AC 593

at 640C is not satisfied: the legislative provisions which set out the circumstances in which the Secretary of State may serve a TPIM notice are not ambiguous or obscure. Nevertheless, he submits that parliamentary materials are admissible to help discern the mischief to which the legislation is directed. He relies upon the analysis of the scope of the power to give effect to decisions of the United Nations Security Council by Order in Council by Lord Hope in Ahmed v. Her Majesty’s Treasury

[2010] 2 AC 534

, which included reference to a statement made in the course of the debate at second reading in paragraphs 15 – 16 and 43. Whether or not it was permissible to make that reference does not appear to have been argued. There is, however, authority which binds me to disregard what the Secretary of State said: the speeches of the majority in R v. Environment Secretary ex parte Spath Holme Limited

[2001] 2 AC 349

. It was suggested that parliamentary materials were admissible to limit the scope of a power conferred by section 11 of the Housing Rent and Subsidies Act 1975 to limit rents. A majority of the House rejected that submission. per Lord Bingham at 392C – D “Here the issue turns not on the meaning of a statutory expression but on the scope of the statutory power. In this context a minister might describe the circumstances in which the government contemplated use of a power, and might be pressed about exercise of the power in other situations which might arise. No doubt the minister would seek to give helpful answers. But it is most unlikely that he would seek to define the legal effect of the draftsman’s language, or to predict all the circumstances in which the power might be used, or to bind any successor administration. Only if a minister were, improbably, to give a categorical assurance to Parliament that a power would not be used in a given situation, such that Parliament could be taken to have legislated on that basis, does it seem to me that a Parliamentary statement on the scope of a power would be properly admissible.” per Lord Hope 407E - H:

“Then there is the question whether it is proper to examine the statements made by ministers during the passage of the 1975 Act through Parliament as reported in Hansard. Here again I think that it is, at best, highly doubtful whether in this case that this exercise is legitimate. My own view is that it is not. It is important to appreciate the purpose for which Your Lordships have been invited to undertake the exercise. It is not to construe words used in the legislation which are said to be ambiguous or obscure or which, having regard to their ordinary meaning, would lead to absurdity: see Pepper v. Hart [1993] AC 593 640C per Lord Browne-Wilkinson. Its purpose is to identify the reasons of policy for which the discretionary power to make orders restricting or preventing increases in rents was sought to be obtained from Parliament by the Executive. It is not the language used by the draftsman that is in issue here, but what was in the mind of the minister. In my opinion there are sound reasons of principle for rejecting the argument that statement made by ministers in Parliament may be used to identify the policy and objects of an enactment for the purpose of identifying the scope of a discretionary power which Parliament has conferred on the Executive. As Lord Reid made clear in Padfield v. Minister of Agriculture Fisheries & Food [1968] AC 997 1030 B – C, the policy and objects of the Act must be determined by construing the Act. The underlying rule is that it is the intention of Parliament that defines the policy and objects of the Act, not the purpose or intention of the Executive. The law-making function belongs to Parliament, not the Executive.” and at 408C – D “As I have already sought to explain, the passages in Hansard to which Your Lordships have been referred deal not with the meaning of words or possible interpretations of expressions that were or might be ambiguous but with statements made by ministers as to matters of policy. I consider that to permit resort to Hansard as a source for material of that kind to define the scope of a discretionary power conferred by Parliament would be to extend the decision in Pepper v. Hart well beyond its proper limits. I respectfully agree with my noble and learned friend Lord Bingham of Cornhill for all the reasons that he has given, that it is important that the conditions laid down by the House in that case should be strictly insisted upon.” and per Lord Hutton at 413G “I respectfully agree with my noble and learned friend Lord Bingham of Cornhill that the conditions laid down by the House in Pepper v. Hart should be strictly adhered to.”

Even Lord Nicholls, who was prepared to contemplate the admission of ministerial statements to Parliament to discern the purpose for which a power was conferred by legislation (see 398C) set out clear limitations upon the use to which the statements could be put at 399D, “They are part of the legislative background, but they are no more than this. This cannot be emphasised too strongly. Government statements, however they are made and however explicit they may be, cannot control the meaning of an Act of Parliament.”

[11]Those observations, which form part of the ratio of the case, were made in circumstances that are closely analogous to those obtaining here. Both the appellants in that case and the respondent in this seek to discern, or impose, a limit upon a power granted by clear express words in primary legislation by reference to statements made by the promoter of the legislation to Parliament. The exercise is impermissible. Mr. Squires’s proper concession that there is no ambiguity in the words used in the relevant parts of the 2011 Act is fatal to his contention that they should be construed by reference to what was said in Parliament.

[12]The purpose of the Act and the mischief at which it was directed can be discerned from its provisions, including its long title, “An Act to abolish control orders and make provision for the imposition of terrorism prevention and investigation measures.” Section 1 repealed the Prevention of Terrorism Act 2005, which gave power to impose control orders, with effect from 15th December 2011: sections 1 and 31(2). Repeal was subject to transitional provisions, which are contained in schedule 8. Control orders in force immediately before commencement were to remain in force until 42 days after commencement: paragraphs 1 and 9 of schedule 8. Thus, no control order could be made or renewed after 15th December 2011 or continued after 26th January 2012. Thereafter, the only preventative measures which the Secretary of State could impose are those set out in a TPIM notice. I accept Mr. Squires’s submission that the 2011 Act contains an unequivocal Parliamentary decision that such measures could not be imposed for more than two years, except when the Secretary of State reasonably believed that “new terrorism-related activity”, as defined (for the purpose of the present case) in section 3(6)(b) had occurred – i.e. terrorism-related activity occurring after the TPIM notice came into force. That demonstrates a clear parliamentary intention that, for the future, the Secretary of State’s powers should, subject to that qualification, be time-limited.

[13]None of that, however, establishes what Parliament’s intention was in the case of an individual, such as AM, who had already been subject to a control order made because the Secretary of State reasonably suspected him of involvement in the same terrorism-related activity as that in respect of which she now claims to have a reasonable belief. If the 2011 Act had been silent about the issue, discerning the parliamentary intention might have been problematic. But it is not. Two provisions put Parliament’s intention beyond doubt. Section 3(6)(a) expressly provides what is to happen if no TPIM notice relating to the individual has ever been in force. In that event, “new terrorism-related activity” means “terrorism-related activity occurring at any time (whether before or after the coming into force of this Act)”. The draftsman could readily have excluded activity occurring before the coming into force of the 2011 Act which had given rise to reasonable suspicion on the part of the Secretary of State so as to found the making of a control order; but he did not. The absence of such a proviso is telling. It demonstrates that the limitation for which Mr. Squires contends cannot have been in the mind of the legislature when it enacted the 2011 Act. If there were any room for doubt, it is conclusively allayed by paragraph 4 of schedule 8 which, in terms, provides that the Secretary of State’s powers under the 2011 Act “are not affected by a control order having been made in relation to that individual”. If the Secretary of State’s powers are not so affected, the exercise of the powers must likewise be unaffected. The inescapable conclusion is that Parliament has addressed the problem identified by Mr. Squires and provided a clear answer to it: provided that the conditions set out in section 3 are satisfied, the Secretary of State is entitled to impose measures by a TPIM notice on an individual in respect of activities which wholly or in part founded the making of a control order. Of course, the fact that a control order was made and, in the case of AM, has been in force for 4 ½ years, is a relevant factor in determining whether or not the imposition of measures by a TPIM notice is necessary – i.e. whether or not condition C is satisfied. But it is no more than that – a factor to be taken into account.

[14]Mr. Squires submits that construction of the 2011 Act leads to absurdities, which Parliament cannot have intended and may lead to similar cases being treated differently. The paradigm example is that of two individuals involved in the same terrorism-related activity before 15th December 2011 in respect of one of whom only a control order has been made. He may be subjected to a longer period of restrictive measures than the other man, although both were involved in the same activities. No such instance has, as far as I know, occurred. The only circumstance which I can conceive in which it might occur is if two individuals, both British citizens, engaged together in terrorism-related activity before 15th December 2011. One of them left the United Kingdom, but the other did not and had a control order imposed upon him. Superficially, the individual who remained behind would have been treated differently. However, a closer analysis suggests that, as at the date upon which TPIM notices were served on both individuals, there would be no difference in treatment. Provided that the statutory conditions were fulfilled, both would have the same measures imposed upon them. The individual who had been subject to the control order could only have a TPIM notice served upon him if the Secretary of State reasonably considered that it was necessary for purposes connected with protecting members of the public from a risk of terrorism that measures should be imposed upon him. In practice, that would be because the imposition of the control order had not eliminated that risk or reduced it to an acceptable level. In each case, a decision based upon the particular risk posed by each individual would have to be made in the light of all relevant circumstances, including the fact that one of them had been subject to a control order. There would be no anomaly or unjustifiable difference in treatment.

[15]Mr. Squires acknowledges that Parliament did address the situation of an individual who had been subject to a control order in paragraph 4 of schedule 8. His explanation for that paragraph is that it was to cater for circumstances in which the restrictive measures imposed under the two regimes were significantly different from each other – for example, when an individual had been subject to compulsory relocation under a control order and when it was revoked returned to his previous address. Such a construction would create anomalies. Several individuals subject to control orders were compulsorily relocated. Some of them successfully resisted or challenged relocation on the ground that it disproportionately interfered with their and their family’s right to respect for family and private life under

Article 8 ECHR

; but not all succeeded. The risk to public security posed by each of them was not the only or even principal consideration. Married men were more likely to succeed in resisting relocation than unmarried men. Mr. Squires’s suggested construction would put the unmarried man at a further disadvantage by comparison with his married counterpart, which might well have been difficult to justify. The fact is that no scheme is likely entirely to eliminate all anomaly. The sensible application of the statutory criteria should keep anomlies within acceptable bounds.

[16]For those reasons, I am satisfied that the Secretary of State was not disentitled to form the reasonable belief that AM had been involved in new terrorism-related activity by reason of the fact that on the open evidence it had all occurred before the making of a control order in respect of him on 21st June 2007.

Issue (i) – Condition A

(i) – Condition A

[17]Applying the principles applicable on an application for judicial review, including heightened scrutiny, I am satisfied that the Secretary of State was entitled reasonably to believe that AM had been involved in terrorism-related activity, in the respects identified below. There is a compelling case that he did. He has not chosen to answer it by oral evidence in these proceedings. Unlike Wilkie J, I have not had the opportunity of assessing his oral evidence and demeanour for myself. I am, however, entitled to rely on the conclusions expressed about him by Wilkie J in his open judgment at paragraph 193 and do so.

[18]The Secretary of State was entitled reasonably to believe the following. i) There was a viable plot to commit mass murder by bringing down transatlantic passenger airliners by suicide bombings which was disrupted by the arrest and prosecution of a number of individuals in the United Kingdom on 9th August 2006. The existence of the plot and the participation of 12 individuals in it is conclusively established by their conviction for conspiracy to murder, to cause a public nuisance and to cause explosions, as appropriate, and by the evidence deployed at their criminal trials. ii) The plot was co-ordinated from Pakistan by Rashid Rauf. iii) In the period before the arrests, Mohammed Gulzar, an acquitted defendant, was in contact with Rauf and with one of the convicted plotters, Assad Sarwar. His role was to act as an explosives advisor and co-ordinator in the United Kingdom. iv) Shortly before the arrests, Gulzar telephoned AM and arranged that he would travel to meet him. His purpose was to provide him with details of his role in the plot and to help him to make a martyrdom video. He was prevented from doing so by his arrest. v) Despite the arrest of the plotters (including Rauf in Pakistan) AM remained committed to future terrorism-related activity, as he explained to an associate at a meeting in London in the middle of October 2006. vi) AM did not tell the truth about the purpose of his trip to Oman in April 2007. vii) In the light of those conclusions, the purpose of his lengthy trips to Pakistan in 2004 and 2005, when aged 16 and 17 respectively, included terrorist training, which he received.

Issues (i) and (ii) – Condition B

(i) and (ii) – Condition B

[19]For the reasons explained under the heading Question (ii), this was new terrorism-related activity.

Issues (ii) and (iii) – Condition C

[20]The Secretary of State founds her conclusion that it remains necessary to impose specified measures on AM by a TPIM notice to protect members of the public from a risk of terrorism on three factors: i) The nature of AM’s terrorism-related activity: he was willing to martyr himself and to kill large numbers of people in 2006. ii) He was not deterred by the arrest of other plotters, but stated his willingness in October 2006, to conduct a further attack. iii) There is no convincing evidence that he has turned away from an extremist agenda.

[21]Mr. Squires’s submissions focussed on issue (iii). He submitted that the Secretary of State’s decision was flawed in two respects: she failed to have regard to a number of factors – the elapse of time since the control order was made, the absence of any open evidence or suggestion of terrorism-related activity since it was and the indications that, whatever AM’s views may have been in 2006/07, he has since matured and turned to non-threatening activities; and it is unreasonable to hold his failure to admit the truth against him, because to do so would risk self-incrimination and prosecution.

[22]The Security Service and, as far as I know, the Secretary of State, accept that there are tentative signs of a change in AM’s outlook. The fact that there is no open evidence or suggestion of terrorism-related activity since 21st June 2007 is in part a testament to the efficacy of the preventative measures that have been taken against him since 2007, but also an encouraging sign. So too is the fact that he has undertaken a first degree course in finance and business at the University of Central Lancashire. As at the date of the hearing, he was predicted to do well in his final exams. He also undertook part-time work. These positive factors are only partly offset by his conviction for participation in road traffic insurance fraud in October 2011. Nevertheless, the Security Service and, I am entitled to assume, the Secretary of State, remain of the view that these outward signs of change must be viewed with caution. Subject to Mr. Squires’s point about self-incrimination, that is a view which I consider justifiable and share. But for the disruption of the transatlantic airlines plot, there is every reason to believe that AM would have killed himself and a large number of other people. The arrest and prosecution of other plotters did not deter him. In those circumstances, convincing evidence of a change of heart was required before the Secretary of State could reasonably consider that the need to protect members of the public from a risk of terrorism had gone or been reduced to a level at which preventative measures were no longer required.

[23]Mr. Squires submits that AM has done all that can reasonably be expected of him, because to demonstrate that he has had a change of heart would require him to make self-incriminating admissions in circumstances in which he may be prosecuted. The Security Service has pointed to the observations of Silber J in his open judgment of 3rd October 2011, in which he made it clear that there were numerous ways in which AM could demonstrate that he had renounced his previous views. I agree and am satisfied that, as AM knows, he could do so without putting himself at risk of prosecution. I have identified one such way in the confidential judgment. Renunciation is a course which has been adopted by other individuals formerly engaged in terrorism-related activity, which has permitted the Security Service and the Secretary of State (and on occasions, when they have not yet been persuaded, a court) that the risk of resumption has been removed or at least sufficiently reduced.

[24]AM contends that until he is free of restrictive measures, he cannot contemplate marriage or starting a family. He is of an age when he would contemplate doing so, as his contemporaries have done. Accordingly, Mr. Squires submits that the imposition of specified measures has a disproportionately severe effect upon AM. AM has chosen not to give oral evidence about his current personal circumstances, so that his concerns cannot be clarified and tested. I am, however, prepared to accept that the imposition of the specified measures has had a chilling effect upon his social life and personal development. This is the unavoidable consequence of the situation in which his own activities have placed him. In the light of the factors set out above, some such effect is the necessary and unavoidable consequence of measures properly taken for the purpose of protecting the public from a risk of terrorism. The measures are not disproportionate.

[25]For the reasons given, I am satisfied that condition C was met when the TPIM notice was served and remain so now.

Issue (iv) – Condition D

[26]The TPIM notice imposes an overnight residence requirement from midnight to 8 am at the Home Office provided accommodation which AM has occupied since June 2007. He is required to make two telephone calls to a monitoring company between midday - 1pm and 4pm - 5pm. He is required to give two day’s notice of the names and addresses, if known, of any person whom he will meet at a meeting or gathering or whom he will invite into his home, before meeting them for the first time. He is prohibited from associating with two individuals. All visitors to his home are required to switch off electronic communications devices, including mobile telephones, before entering. He is allowed a fixed line telephone, a mobile telephone and a computer capable of being connected to the internet by non-wireless means. When visiting the home of his mother and three youngest sisters, they are required to switch off their mobile telephones and computers while he is there. He requires permission for certain categories of work, but not for others. He is excluded from ports and airports and from the Manchester Olympic park. He is required to wear a GPS tag and to keep the battery charged.

[27]He challenges four of the conditions: i) The requirement that his mother and sisters switch off their mobile telephones and computers and kindred devices when he visits their home (about 25 minutes walk from his). ii) The requirement for two day’s prior notification before meeting someone for the first time or inviting them into his home. iii) The requirement that visitors switch off mobile telephones and kindred devices when entering his home. iv) The requirement to wear a GPS tag.

[28]It is common ground that the observations of Lord Phillips CJ in Secretary of State for the Home Department v. MB

[2007] QB 415

at paragraphs 63 – 65 apply to specified measures in a TPIM notice as they did to obligations under a control order. I am familiar with them and only a summary is required: I must give intense scrutiny to the necessity for the specified measures, while paying a degree of deference to the decisions taken by the Secretary of State.

[29]As to (i), AM maintains that the condition causes annoyance and distress to his sisters which has caused him to reduce the number and length of visits to his family home. I do not accept that this causes a major problem for them. It is a small price to pay for visits by their brother which, in the early days of the control order, had, for good reason, been prohibited. Further, given the deference which I must to the views of the Secretary of State and her security advisers, I am satisfied that this measure is necessary and proportionate.

[30]As to (ii), I have already indicated that I accept that the specified measures have had a chilling effect on AM’s social life and personal development. The reasons for the imposition of the requirement for two days prior notification have been explained to me in closed session. Miss Giovannetti QC has submitted in the open session that AM has not given any concrete example of the inhibiting effect of the measure. In this instance, I accept AM’s case that it is bound to have a significant inhibiting effect, even though he has not given concrete examples of it. I am conscious of the fact that I may not fully have understood the extent of past notification under this measure and its predecessor. My understanding, derived from what Miss Giovannetti told me in closing submissions is that, when the TPIM notice was served only two current names had been notified. This suggests either a significant degree of social isolation on the part of AM or that the requirement has, in practice, proved ineffective. Neither would be satisfactory. A decision to maintain a measure which had either or both of those consequences would be difficult to justify. Further, as the Security Service and the Secretary of State recognise, an exit strategy has to be planned. Deportation is impermissible and prosecution unlikely. The only viable exit strategy is encouraging and facilitating a change in outlook by AM. To that end, it is imperative that he is encouraged to lead as normal a life as possible, consistent with the requirements of public protection. Maintenance of a measure which is either over restrictive or ineffective does not serve that end. Accordingly, even giving due deference to the views of the Security Service and of the Secretary of State, I am satisfied that the decision to maintain the requirement for prior notification is flawed. It should be replaced by a requirement for notification after the first meeting or gathering or visit at AM’s home. This possibility was canvassed during the open hearing and initial drafts have been circulated. I will leave it to the parties to discuss the precise terms of revision of measure 7.2. If agreement cannot be reached, I will resolve the difference on paper.

[31]As to (iii), I am satisfied that this requirement is necessary and proportionate. I acknowledge that Wilkie J decided that it was not necessary for approved visitors to switch off their telephones. Since he made that decision, events and technology have moved on. Many – perhaps most – modern handheld communication devices can be connected wirelessly to the internet. For reasons explained in the closed judgment, it is undesirable that the devices brought into AM’s home by visitors should be capable of being used while there.

[32]As to (iv), a GPS tag was fitted to AM’s ankle on 12th April 2012. It is bulkier than the tag previously fitted. That tag only worked within about 50 metres of the monitoring box installed in AM’s home and did no more than signify his departure and arrival. As witness AU explained, the GPS tag permits his movements to be monitored and so serves two purposes: to ensure compliance with some of the measures – the overnight residence requirement and the prohibition on access to certain places; and it provides part of an intelligence picture about his movements. The fitting of the GPS tag was not due to any act on the part of AM or any perception of a change in the risk posed by him, but to improvements in technology. It has already permitted a modest relaxation in the telephoning requirements and is one of the factors that has led me to direct that the notification requirement is modified. For the future, it may either alert the Security Service to specific concerns about AM or help to allay concern about his acts and motivation. I am satisfied that the fitting of the new device was and is necessary and proportionate. I do not accept AM’s complaint that it is significantly more embarrassing or inhibiting than the old tag.

[33]For the reasons given, I accept and direct that measure 7.2 be modified, but dismiss the challenge to the remaining measures. The appeal against the renewal of the control order under section 10(1) of the 2005 Act

[34]For the same reasons as I have upheld the imposition of specified measures by the TPIM notice, I dismiss the appeal against renewal of the control order.