“(1) In this Act ‘terrorism’ means the use or threat of action where - (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (2) Action falls within this subsection if it – (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section – (a) ‘action’ includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other then the United Kingdom and (d) ‘the government’ means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.” (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (a) ‘action’ includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other then the United Kingdom and (d) ‘the government’ means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.”
“(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. (5) Condition E is that – (a) The court gives the Secretary of State permission under section 6, or (b) The Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission. (6) In this section “new terrorism-related activity” means – (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); (b) If only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force; or (c) If two or more TPIM notices relating to the individual have been in force, terrorism-related activity occurring after such a notice came into force most recently.” (a) The court gives the Secretary of State permission under section 6, or (b) The Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission. (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); (b) If only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force; or (c) If two or more TPIM notices relating to the individual have been in force, terrorism-related activity occurring after such a notice came into force most recently.”
“It is implicit in the scheme that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order.”
“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 obligations that it is necessary to impose may depend upon 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.”
“Belief is a state of mind by which the person in question thinks that X is the case. Suspicion is a state of mind by which the person in question thinks that X may be the case”
“Mr Otty has submitted that if facts have to be established to find a reasonable belief, they must be established at least on the balance of probabilities. He submitted that “belief involves a judgment that a state of affairs legally exists” citing words of Kerr L.C.J. in paragraph 14 of his judgment in Northern Ireland in Re Alexander [2009] NIQB 20. But that observation does not mean that the existence of the state of affairs must be established to any particular standard. It is entirely consistent with the view that for the belief to be reasonable it must be shown that material provided justified the belief that the state of affairs did exist whether or not subsequent investigation or testing in court shows that it did not. The reality is, as I have said, that to found a reasonable belief that a subject is or has been involved in TRA and that a TPIM is necessary does not involve the requirement to establish involvement in specific TRA to any higher standard than that which can properly give rise to such a belief. No doubt some facts which go to forming the belief will be clearly established, others may be based on an assessment of the various pieces of evidence available. But there is certainly no requirement that particular TRA needs to be established to the standard of at least more probable than not.”
“The judge is entitled to take the view that a person who really does have a case to answer will make every effort to provide his special advocate with the information he needs to make the challenge.”
“His failure to give evidence cannot be used against him to strengthen the applicant’s case. There is no burden on him to establish that the allegations are untrue. But I am entitled to attach less weight to an untested statement, particularly if I am satisfied that explanations could but have not been given to deal with any material which has been disclosed.”
“This is not a situation such as applies in a criminal case where a defendant is entitled to say nothing and play his cards close to his chest. While he does not have to explain himself, BM’s failure to do so when he could can properly be used to form the view that an adverse conclusion is justified. This approach echoes what Lord Hope said in paragraph 86 of AF (No. 3) supra. It does not shift the burden to BM to show that an allegation is not to be relied on but reflects the reality that an adverse view has been formed by the applicant based on all material available to her and BM has the opportunity to explain if he can why that view is not appropriate. A failure to take steps reasonably open to him to deal with any of the allegations can therefore mean that the adverse view will be maintained.”
“The difficulty is that, … neither Mr Jones nor J was cross–examined about the continuing necessity of any of the individual obligations to which E is subjected. Since the Applicant’s witnesses were not challenged about the necessity of the individual obligations, there is no material before me upon which I can conclude that the less restrictive alternatives I have considered would be adequate to meet E’s assessed risk. There is accordingly no material to set against the Secretary of State’s decision that all the obligations remain necessary as part of the “intense scrutiny” referred to by the Court of Appeal. Bearing in mind the “degree of deference” which the Court of Appeal has stated must be given to the decision of the Secretary of State as to the necessity of the individual obligations imposed, I have concluded that this is not a case in which it can be said that the Secretary of State’s decision is flawed.”
“You must not meet any other person (including by attending any meeting or gathering) unless: … (b) you have notified the Home Office of the name and address of the person and the time and location of the meeting or gathering at least two working days before the first time you meet them; …”
“The Secretary of State may, in particular, impose any of the following requirements – (a) a requirement not to associate or communicate with specified persons, or specified descriptions of persons, without the permission of the Secretary of State; (b) a requirement to give notice to the Secretary of State before associating or communicating with other persons (whether at all or in specified circumstances); (c) a requirement to comply with any other specified conditions in connection with associating or communicating with other persons”
“If her evidence, undisclosed to the Respondents, contradicts their direct evidence or, by evidence of circumstances and context puts it in a different light, the Respondents will still have had the opportunity to put in whatever they wish to support the allegations they have made. They know the case because they are making it. Their ability to know the response so as to put in first their evidence in rebuttal, evidence of circumstances they must already know of, is not essential to fairness of the proceedings”
“It is well established that the Court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will “offend the court’s sense of justice and propriety” (per Lord Lowry in R v Horseferry Road Magistrate’s Court, ex parte Bennett[1994] 1 AC 42 74G) or will “undermine public confidence in the criminal justice system and bring it into disrepute” (per Lord Steyn inR v Latif and Shahzad[1996] 1WLR 104 , 112F).”
“Discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely “pour encourager les autres”
“The Board does not consider that the “but for” test will always or even in most cases necessarily determine whether a stay should be granted on the grounds of abuse of process. The facts of the present case demonstrate the dangers of attempting a classification of cases in this area of the law and disregarding the salutary words of Lord Steyn. For reasons which will appear, it is the Board’s view that the Commissioner reached the right conclusion in this case, or at least a conclusion that he was entitled to reach. And yet it was accepted at all times by the prosecution that but for the unlawful and misleading misconduct of the Jersey Police in relation to the installation and use of the audio device, the prosecution in this case could not have succeeded and there would be no trial unless the police were able to obtain the necessary evidence by other (lawful) means.”
“My Lords, this appeal raises an important question of principle. When a person is arrested and charged with a criminal offence, is it a valid ground of objection to the exercise of the court’s jurisdiction to try him that the prosecuting authority secured the prisoner’s presence within the territorial jurisdiction of the court by forcibly abducting him from within the jurisdiction of some other state, in violation of international law, in violation of the laws of the state from which he was abducted, in violation of whatever rights he enjoyed under the laws of that state and in disregard of available procedures to secure his lawful extradition to this country from the state where he was residing? This is to state the issue very starkly, perhaps some may think tendentiously. But because this appeal has to be determined on the basis of assumed facts, your Lordships, as it seems to me, cannot avoid grappling with the issue in this stark form.”
“The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused.”
“Although the cases recognise that a balance must be made which involves a consideration of the seriousness of the offence charged, the Court will always be alive to the possibility that it is in the most serious cases that a calculation may be made that the laudable end of bringing a defendant to trial justifies illicit means. That is a calculation with which the Court will not necessarily agree.”
“The elected government has a special responsibility in what may be called strategic fields of policy, such as the conduct of foreign relations and matters of national security. It arises in part from considerations of competence, in part from the constitutional imperative of electoral accountability.”
“I understand that the Court has asked for information from the Foreign and Commonwealth Office as to the status of Somaliland. A British protectorate for 74 years, Somaliland gained independence on26 June 1960 . Five days later, it chose union with the Trust Territory of Somaliland under Italian administration. Following the war of 1982-1991, Somaliland declared independence in May 1991. In 2001, the Somaliland administration held a referendum which had the effect of endorsing a new constitution together with 97% of those who took part voting to reaffirm their independence. Somaliland claims recognition as a state based on colonial borders, stating that it voluntarily united with the Trust Territory of Somaliland under Italian Administration to form the Somali Republic, and has now voluntarily withdrawn. In a letter from Birnberg Peirce and Partners of9 July 2012 , the Respondents ask whether HMG recognises Somaliland as an independent state. HMG does not. Nor does any other state. However, the position of Somaliland is not to be equated with that of unrecognised states where a territorial situation raises issues of illegality under international law and which, therefore, states have been called on by the United Nations Security Council and General Assembly not to recognise.”
“Once the question for the court becomes one of making its own assessment of the evidence, making findings of fact on all the relevant evidence placed before it and drawing the appropriate legal conclusion, and is no longer a question of simply reflecting government policy, letters from the Foreign and Commonwealth Office become merely part of the evidence in the case. In the present case no problem of admissibility arises. In so far as the letters make statements about what is happening in the territory of some foreign state, such letters may not be the best evidence; but as regards to the question whether Her Majesty’s Government had dealings with the foreign government it will almost certainly be the best and only conclusive evidence of that fact. Where Her Majesty’s Government is dealing with the foreign government on a normal government to government basis as the government of the relevant foreign state, it is unlikely in the extreme that the inference that the foreign government is the government of that state would be capable of being rebutted and questions of public policy and considerations of the inter-relationship of the judicial and executive arms of government may be paramount: see The Arantzazu Mendi[1939] AC 256 , 264 and Gur Corporation v Trust Bank of Africa Ltd [1987] Q.B. 599, 625. But now that the question has ceased to be one of recognition, the theoretical possibility of rebuttal must exist.”
“Our policy has long been that the Somali people themselves should determine their future relationship and that their neighbours and other African countries should take the lead in recognising any new arrangements. We appreciate the aspirations of the Somalilanders, and have encouraged them to engage with the Somali peace process, including resolving their differences with the Transitional Federal Government (TFG).”
“Nevertheless, HMG does acknowledge that the Somaliland administration has effective control, and exercises de facto administrative authority, over all the territory of Somaliland, except parts of the border regions of Sool and Sanaag which are disputed with the neighbouring Somali state of Puntland. There has also been similar acknowledgement at an international level. For example the UN Security Council Report of Secretary-General on the Modalities for the Establishment of Specialized Somali Anti-Piracy Courts (S/2011/360) states at paragraph 5 of Annex II: ‘Relations between the Transitional Federal Government and the main regional authorities within Somalia are complex.’ ‘Somaliland’ has not been recognised as a State by the Transitional Federal Government nor internationally, but is de facto self-governing. ’ ”
“In the absence of final settlement of relations between Somaliland and the TFG, the UK and other states have taken a pragmatic approach to engagement with the Somaliland authorities. The UK and many other states and international organisations, including the UN, have and will continue to have direct dealings with the Somaliland authorities on many issues.”
“The Home Secretary was advised that these claims had no bearing on the decision to impose a control order on [CF].”
“Although this has no bearing on the decision to make a control order, the Secretary of State is aware of pre-action correspondence sent to other government departments by [CF’s] mother relating to the circumstances and conditions of his arrest and detention in Somaliland.”
“It is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to an obligation not to misrepresent. It consists of a duty to consider what any other interested person would, if present, wish to adduce by way of fact, or to say in answer to the application, and to place that material before the judge. That duty applies to an applicant for a restraint order under POCA in exactly the same way as to any other applicant for an order without notice. … In effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and having answered that question, that is what he must tell the judge.”
“The judge should be told anything to the knowledge of the party applying that might weigh against making an order.”