BF v Secretary of State for the Home Department [2013] EWHC 2329 (Admin)

[2013] EWHC 2329 (Admin)Case No PTA/2/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE TERRORISM PREVENTION
AND INVESTIGATION MEASURES ACT 2011
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 30 th July 2013
Before
MR JUSTICE SILBER
Between
BFAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Edward Grieves (instructed by Tuckers) for AppellantJonathan Hall and Rupert Jones (instructed by Treasury Solicitor) for RespondentJudith Farbey QC and Melanie Plimmer (instructed by Special Advocate Support Office) as Special Advocates
Judgment

I. Introduction

[1]BF was subject to a control order imposed on him on 25 March 2009. On 27 October 2009, the control order was revoked because it was no longer necessary as BF had been previously arrested for suspected terrorism-related activities and he had been remanded in custody. On 8 November 2010, he was acquitted of those offences and on 12 November 2010, a second control order was served on BF.[2]On 18 July 2011, Davis J (as he then was) upheld the control order in a Closed and in an Open judgment (“the 2011 judgments”). In November 2011, the renewed control order was served. It was revoked on 20 January 2012 and it was replaced with a Terrorism Prevention Investigation Measures notice (“TPIM”) made by the Secretary of State for the Home Department (“the Secretary of State”) on 16 January 2012.[3]On 25 June 2012, McCombe J (as he then was) upheld the TPIM under section 9 of the Terrorism Prevention and Investigation Act 2011 (“the 2011 Act”) in a Closed and in an Open judgment (“the 2012 judgments”). On 22 January 2013, the Secretary of State served a TPIM extension notice upon BF thereby extending the original TPIM and making BF subject to conditions for a further year until expiry of the renewal on 22 January 2014. It is this notice which is the subject of the present challenge.[4]There has been a progressive relaxation of the measures applicable to BF since he was placed under his first control order with a further relaxation being granted when the present TPIM was imposed in January 2013. In addition, permission has been given on numerous occasions for BF to be given dispensation from the terms of the orders imposed on him for particular purposes.

II. The Legislative Background

[5]The making and extension of TPIMs are governed by the 2011 Act which replaces the old Control Order regime. Section 2(2) of the 2011 Act defines “terrorism prevention and investigation measures” as requirements, restrictions and other provision which may be made in relation to an individual by virtue of Schedule 1 of that Act.[6]By virtue of section 30(1) of the 2011 Act, “terrorism” has the same meaning as in the Terrorism Act 2000 which provides, at section 1 (insofar as is relevant) that:- “(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 than 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. (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 than 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.”[7]Section 4(1) of the 2011 Act defines “terrorism-related activity” as being:- “…involvement in terrorism-related activity is any one or more of the following -(a) the commission, preparation or instigation of acts of terrorism;(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;(d) conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c); and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally.” (a) the commission, preparation or instigation of acts of terrorism; (b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so; (c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so; (d) conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c);[8]By section 2(1) of the 2011 Act, the Secretary of State may impose TPIMs on an individual if conditions A to E are met. For the purposes of this judgment the conditions for imposing a TPIM Notice are (with emphasis added) that:- “...A…the Secretary of State reasonably believes that the individual is, or has been involved in terrorism-related activity… …C…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. …D…the Secretary of State reasonably considers that it is necessary, for purposes of 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.”[9]Section 5 enables a TPIM to be extended on one occasion. It provides that:- “…(1) A TPIM notice—(a) comes into force when the notice is served on the individual or, if later, at the time specified for this purpose in the notice; and(b) is in force for the period of one year. (2) The Secretary of State may by notice extend a TPIM notice for a period of one year beginning when the TPIM notice would otherwise expire. (3) A TPIM notice— (a)may be extended under subsection (2) only if conditions A, C and D are met; and (b) may be so extended on only one occasion. (4) This section is subject, in particular, to sections 13 (revocation and revival of TPIM notices) and 14 (replacement of TPIM notice that is quashed etc).” (b) is in force for the period of one year. (a)may be extended under subsection (2) only if conditions A, C and D are met; and (b) may be so extended on only one occasion.[10]The right of appeal against a TPIM extension under section 5(2) of the 2011 Act is contained in section 16(1). In such a case “…the function of the court on such an appeal is to review the Secretary of State's decisions that conditions A, C and D were met and continue to be met” (Section 16(1)(b)). In doing so, the Court must apply the principles applicable on an application for judicial review (section 16(6)). If the Court does not dismiss the appeal, its powers on appeal are contained in section 16(7), with the relevant powers being to quash the TPIM extension, or to give directions for the revocation of the TPIM, to quash individual measures, or to give directions for the variation of individual measures.[11]The correct approach to reviewing the necessity of control order obligations - which it is not disputed must apply with relevant modification in the case of TPIM measures - was explained in Secretary of State for the Home Department v MB [2007] QB 415 by Lord Phillips of Worth Matravers CJ, when giving the judgment of the Court of Appeal in that case, who explained that:- “…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.” [§63][12]Lord Phillips went on to say that the Secretary of State was “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” [64]. He then observed that in spite of such deference, the courts have to give “intense scrutinyto the necessity for each of the obligation imposed on an individual”. The court in carrying out that exercise should explore alternative means of achieving the same result.[13]It is common ground that, as was explained by Wilkie J in CF v Secretary of State for the Home Department [2013] EWHC 843 (Admin):-(a) “the graver the impact of the measure, the more compelling the justification will need to be and the greater care with which it must be examined” [25];(b) “that the term "necessity" is not to be equated with "useful", "reasonable" or "desirable" [26]; and(c) “the court must examine each measure individually and should not too readily accept claims to be deferential bearing in mind that the Secretary of State has not heard or read all the evidence which is before the court”.[14]McCombe J found in his 2012 judgment that Condition A had been met because of BF’s activities before March 2009. BF does not seek to challenge that finding and he accepts Condition A is satisfied for the purpose of these proceedings. The issue therefore relates to whether Conditions C and D were satisfied when the TPIM Extension Notice was served in January 2013 and at the present time. I received oral and written submissions in Open and Closed session on this issue. A Closed judgment supplements this Open judgment and provides additional support for it.

III. The Case for the Secretary of State for Home Department

[15]The case for the Secretary of State is that the material which was before McCombe J continues to be relevant as were the findings of Davis J. Their findings were that:-(a) BF was in Pakistan in June 2008 when others known to him, properly assessed as linked to terrorism-related activities, were also there;(b) He was planning a further trip to Pakistan in March 2009 when others known to him, some of whom he had met beforehand who were themselves properly assessed to be linked to terrorism-related activity, were also proposing to travel to Pakistan;(c) BF’s fingerprints were found on letters from the Adam brothers; and that(d) There was the “farewell letter” to BF’s family found in a bag in his residence in March 2009 saying “I will always remember you and my babies… tell them [dad] loves them very much but had to go for the sake of Allah”. BF also asked his parents, his brothers and sisters and his wife for their forgiveness. Davis J regarded the letter “as of the greatest significance and is... highly incriminating.. it indicates that BF was contemplating parting from his wife and children for good”.[16]The conclusion of McCombe J was that he accepted the submissions of the Secretary of State that the fundamentals of the case for continuing controls remained much as they had done at the time of Davis J’s judgment.[17]McCombe J accepted [61] the submissions made by the Secretary of State that:- “[47] The SSHD, through Mr Hall and Mr Jones, submits that the fundamentals of the case for continued controls remain much as they were at the time of the judgment of Davis J in July last year. It is submitted that the very serious extremist conduct embarked upon by BF and his associates in 2008, and its potential continuance in 2009, merits the greatest possible caution on the part of the SSHD and of the court. The fact of that conduct and of the persistent desire of BF to engage in it has not been challenged on the evidence. BF is a man clearly demonstrated as having the will to engage in very serious terrorist activity and shown to have taken active steps to put that will into practice. While BF has given limited evidence as to his present circumstances, he has given no evidence as to the extent to which (if at all) he has renounced his previous opinions and activities. He has given no counter to the concerns expressed about V's sympathies and mindset. Nor has he submitted himself to oral examination about these matters. As to Condition A he has, in effect, put the SSHD to continued proof of the allegations concerning his conduct in 2008/9, without accepting the truth of those allegations. [48] In this respect, Counsel commends to my attention a passage in the judgment of Collins J in SSHD v BM[2012] EWHC 714 (Admin) at para 23, in the following terms:
“23 In this case, BM has made a number of statements in relation to the control order and the TPIM. He has chosen not to give evidence which could have been tested in cross-examination but to rely on those statements. 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.” [49] In the circumstances of this case, Mr Hall submits that BF has not displaced the evidence of an extremist mindset and a continued intention to travel abroad to engage in TRA, both of which have been well manifested in the past, in spite of what one might have thought were compelling family circumstances to the contrary.” “23 In this case, BM has made a number of statements in relation to the control order and the TPIM. He has chosen not to give evidence which could have been tested in cross-examination but to rely on those statements. 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.”
[18]The Secretary of State’s present position is that the Security Services assess that:-(a) BF is a long-term, committed and historically well-connected extremist and his close associates continue to be involved in ongoing extremist activities;(b) BF maintains a desire to travel overseas and he would seek to travel after restrictions are removed and he would seek to engage in terrorist-related activities;(c) His second wife V is likely to encourage BF to conduct terrorist activities overseas in the light of her mindset; and(d) Given the activities of his “close extremist associates, BF would seek to engage in terrorism related activity overseas. One possible destination would be Syria”.[19]In support of these contentions, it is pointed out that BF has been silent on the nature of his beliefs. McCombe J attached importance in the 2012 Open judgment to the:- “absence [on BF’s part] of any express rejection of his previous attitudes and highly dangerous previous activities” [60].[20]Nevertheless despite the observations of McCombe J, BF is yet to renounce his belief. This point is fortified by the statement of Collins J in Secretary of State for the Home Department v BM which I quoted in paragraph 17 above.[21]Mr Hall submits there has been nothing adduced by BF to rebut or displace the evidence of BF’s extremist mindset while his intention to travel abroad to engage in TRA which have manifested themselves in the past, but he has now been prevented from carrying out his intention by the imposition on him of the control order and of the TPIM.[22]Mr Hall says that the risk posed by BF has become much more serious as he entered into an Islamic marriage with V in January 2011 and that she is assessed as holding extremist views, and is likely to encourage BF to engage in terrorism related activities. It is also said that BF and V “continue to exhibit security conscious behaviour”.[23]Another basis of the case of the Secretary of State is that BF continues to associate with Islamist extremists, who may share his views such as A, who is an associate of BM, a prohibited associate. In his witness statement, BF admits to monthly or two-monthly social contact with A and a certain amount of contact at his local mosque on Hampton Road. He does not say whether A shares his or has his own extremist views but he states that:- “I do not have any contact with him for any terrorist related purpose”.[24]The case for the Secretary of State is that she was and she is entitled to conclude on advice from the Security Service that BF’s risk requires an extension of the TPIM rather than its cessation in January 2013 or at the present time.

IV. The Case for BF

[25]In response, Mr Edward Grieves, counsel for BF, contends that the basic rule is that the restrictions imposed on BF should only last for two years. He points out that section 5 of the 2011 Act specifies that there is a two year time limit for TPIM notices. He fortifies this submission by explaining that Lord Carlile of Berriew QC, the last Government Independent Reviewer on Terrorism, took the view that control orders should generally have a life of no more than two years.[26]When faced with a similar argument, Mitting J explained in the Secretary of State for the Home Department v AT and AW [2009] EWHC 512 (Admin) that he did not accept that this fact would mean that the Secretary of State should not in that case have decided not to impose a control order in force. He observed that:- “29…I do, however, acknowledge Lord Carlile's view that control orders should generally have a life of no more than two years and accept the submissions made by both Open and Closed advocates on behalf of AT that the periods during which he has been imprisoned and subject to restrictions imposed by home detention curfew, SIAC bail order and the control order should be taken into account; but I do not accept that the Secretary of State should, as a result, have decided not to impose a control order or to maintain it in force. The management of the risk posed by AT is a delicate and difficult task. The imposition of a control order was and remains a necessary and proportionate response to that risk, because it diminishes the risk that AT will re-engage in the affairs of the LIFG in a way which would assist those who wish to continue the armed struggle. That is a sufficient justification of the making and continuance of the order”[27]Mr. Grieves submits that the TPIM should be quashed because:-(a) The case against BF depended and depends on his association with a number of other people who the Security Services note have died according to media reporting. Thus on 5 October 2010, the BBC reported that Mohammed Jabar Ahmed was killed in a drone strike in September 2010. On 18 November 2011, the Telegraph reported that Jabbar’s brother, Mohammed Azmir Khan, and Ibrahim Adam were killed in a drone attack in 2011. Thus it is said that the danger posed by BF has receded;(b) BF has requested from the Secretary of State the identities of the extremists with whom he was allegedly associating but the request was refused. The Amended Extension Statement, however, only named A, who is alleged to be an associate of BM but it is not alleged that BF has been associating with A for purposes connected with terrorism. BF has made a short witness statement explaining that this is the first time A has featured, that he, that is BF, has not had contact with him for terrorist-related purposes but that he will try and minimise contact with him now that he, that is BF, is aware of the situation;(c) This failure of the Secretary of State to give details of the extremists with whom it is said BF was associating prevents sensible submissions from BF’s Open advocate;(d) There is no evidence at all that BF has acted in breach of his TPIM;(e) Dispensations from the terms of BF’s TPIM have been given to him on a regular basis when he has asked for them for a good reason. He has not used any such opportunity to abscond or to engage in terrorist-related activities;(f) BF has not indicated any intention to travel abroad for terrorist-related activities;(g) BF has no specific links with Syria;(h) The controls on him have now been greatly relaxed so that, for example:- i. Under the first and second control orders BF was precluded from having visitors to his residence without the prior permission of the Home Office and there was a prohibition on prearranged meetings without the prior permission of the Home Office. Both those restrictions were removed when the control order was renewed in November 2011 and have not been imposed in the TPIM or when it was extended; ii) The first and second control orders had a geographical boundary but the TPIM has a much smaller exclusion zone and it now excludes places, shops and premises which provide specified goods and services such as electronic communication devices, internet access and travel agencies; and iii) BF’s original residence requirement was limited to one address but it has been extended to two addresses not only V’s address but the address of his first wife.(i) He has a large and involved family life and his family have suffered greatly because of the continued imposition of the TPIM;(j) He cooperates with the police and if the police wish to see him, he voluntarily goes to the police station;(k) There is also a mental health report from Dr. Richard Duffett a Consultant Psychiatrist dated 27 March 2013 which shows the adverse effects of the TPIM on him and in particular that his depression and feeling of anxiety will continue while he is subject to a TPIM but “may resolve if this is lifted”. According to that report BF is unlikely to find paid employment in the near future due to his mental health problems; and(l) The length of time during which a person has been subjected to a control order should be taken into account as explained by Mitting J in AT (supra) when he accepted the submission that “the periods during which [the person concerned] has been imprisoned and subject to restrictions imposed by home detention curfew, SIAC bail order and the control order should be taken into account” [26].

V. Conclusions on Condition C

[28]The issue for me is whether in the light of all the evidence and the submissions, 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 a TPIM to be imposed on BF.[29]My starting point has to be what evidence there is of what BF did or was involved in before the control orders were imposed. Obviously, the mere fact that BF behaved in that way a few years ago does not mean that he will or might behave in that way in the future, but this previous conduct cannot be ignored as a factor.[30]Both McCombe J and Davis J gave Open and Closed judgments. I have taken into account and adopt their Closed judgments. In his Open judgment, McCombe J explained that he accepted Davis J’s findings in paragraphs 53 and 54 of the 2011 judgment in which he concluded that:- 53. Reviewing the totality of the evidence and documents before me I am in no doubt that there were and are reasonable grounds for suspecting that BF has been involved in terrorism related activity. My own view is that that accords with the (very strong) probabilities on the facts; and the Secretary of State’s assessment thus was reasonable and is in no way flawed. 54. It is the combination of factual circumstances which justifies that conclusion; indeed if BF’s contentions were correct they would involve happenstance and coincidence to an utterly implausible degree. There can be no doubt that he was in Pakistan (not in Karachi, however, although Karachi was the stated destination on his visa) in June 2008 at a time when others known to him, properly assessed as linked to terrorism related activities, were also there. There can be no doubt again that he was planning a further trip to Pakistan in March 2009 when others known to him-some of whom he met shortly beforehand and themselves properly assessed to be linked to terrorism related activity - were also proposing to travel to Pakistan at around that time. Yet further the links of the Adam brothers to terrorism related activities is incontrovertible. As to the explanation advanced at the criminal trial, and maintained before me, as to how, via contact with Kahn, BF’s fingerprints were found on the letters from the Adam brothers (albeit it is emphasised other fingerprints were also found) without connoting any kind of involvement in couriering the letters or with the Adam Brothers, such explanation, taken on its own, is, implausible but (perhaps) just about possible. It becomes highly improbable when it is seen that the whole alleged incident concerning Khan and the letters occurred very shortly after BF had returned from Pakistan and where he had been assessed to be associating with others properly assessed to be linked to terrorism and had been there precisely at a time when the Adam brothers themselves had been assessed to have gone to Pakistan.”31. McCombe J explained that there was also the “farewell letter” to BF’s family found in a bag in BF’s residence in March 2009, evincing (according to the Security Service) a clear indication of BF’s desire to travel to Pakistan to engage in terrorism-related activity and his acknowledgement that he might not survive. Both Davis J and McCombe J found this letter to be “highly incriminating” and found that it strongly supported the assessment made by the Security Service.32. More than four years have now elapsed since BF was first subject to a control order. During that time, the restrictions on him have been relaxed. To determine if condition C has been satisfied, I take account of the factors relied on by Mr. Grieves, including those to which I have referred in paragraph 27 above and those relied on by Mr Hall.33. So over and above the matters to which I have referred and which satisfy requirement A (namely that the Secretary of State reasonably believes that BF is or has been involved in terrorism-related activity), there are five factors which individually and more importantly cumulatively satisfy me that requirement C is satisfied and I will now set them out in no particular order of importance.34. First, BF has made no response to the assertion that he holds extremist views even though this was a point made against him by McCombe J who said that BF “has given no evidence as to the extent to which (if at all) he has renounced his previous opinions and activities”. This point was relied on again by the Secretary of State in his Open Statement where the Security Service assesses BF as a “long-term, committed and historically well-connected extremist”. BF has served two witness statements which deal with many matters raised in the Open Statement of the Secretary of State, but significantly they do not deal with the important assertions relating to his extremist views, but he does “point out that I do not have discussions about terrorist related activities whether in this country or abroad with V”. BF and V continue to exhibit security conscious behaviour. I have given weight to BF’s security conscious behaviour in the Closed judgment.[35]Second, there is no response from BF or his new wife V to the assessments of the Security Service first that she holds Islamist extremist views, second that she has a continued influence over BF, and third that she is likely to encourage BF to engage in further terrorism-related activity overseas when he ceases to be subject to a TPIM. BF’s only response, which is set out in the last sentence of the last paragraph, does not deal with all aspects of these assertions and in particular V’s Islamist extremist views.[36]Third, there is the assertion that BF continues to associate with Islamist extremists including A, who is assessed to be an associate of BM. He responded to this assertion in a witness statement of 29 May 2013 in which he stated that he does have contact with A, but this is not for any terrorist–related purposes. BF does not deny that A holds extremist views and he does not even say that he does not know if he holds those views. I have not in the Closed judgment placed decisive weight on any other current association or associations.[37]Fourth, there are ways in which an Islamist extremist could become involved in terrorist activities because there is evidence that any British Islamist extremist, who was able to travel to Syria, would be able to connect with Al Qaeda-linked elements in Syria. In that event, such a person would constitute a significant threat to United Kingdom national security and be able to engage in terrorist training and fighting. Of course the terms of the TPIM now prevent BF from becoming involved in such activities.[38]Fifth, the Security Services assess that BF would travel abroad so as to use opportunities to engage in terrorism-related activities if he was not subject to a TPIM which has to be considered in the context of previous terrorist-related activities of BF which satisfy Condition A.[39]For those reasons I have concluded 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 a TPIM to be imposed on BF. The material set out in the accompanying Closed judgment provides additional and corroborative support.

VI. Condition D

[40]I have already explained the way in which the restrictions on BF set out in the control order and the TPIM have been relaxed. BF contends, as I have explained in paragraph 27, that the present restrictions are not necessary and that Condition D cannot be satisfied. Mr Grieves stresses particularly the facts that BF has complied with all his conditions of his TPIM and that when a restriction has been waived for a particular purpose, he has not absconded. BF also explains clearly the serious and unfair effect of the restrictions on him and on his extended family, which is supported by the psychiatric report.[41]Mr. Grieves submits that it is noteworthy that there were 19 occasions between 28 May 2012 and 16 May 2013 when BF was given permission to call the monitoring company from his mobile so that he could be away from his residence all day without having to make the afternoon call from the fixed line in his residence. He further submits that during those occasions, BF did not become involved with terrorism-related activities or break the conditions in his TPIM. So it is said that is not necessary for BF to report to the monitoring company from his home and he could either report from his mobile or not at all.[42]It is clear that many obligations imposed on BF by his original TPIM have been removed. Thus BF is no longer prohibited from entering certain specified places and areas; and the financial services as well as the property measures were removed. The work or studies measure was relaxed so that BF was no longer required to give prior notification in relation to work outside notified fields but he still needs to give notification before undertaking work or studies in a notified field.43. The case for the Special Advocates was that if Condition C has been satisfied, then the measures included in the TPIM as extended are unnecessarily wide with the result that Condition D has not been satisfied. Miss Farbey submitted that the measures imposed by the Secretary of State are unnecessary. She contended that there is no proper explanation or justification for them.44. The Security Service considered that the measures currently imposed on BF were necessary to restrict or prevent his ability to travel overseas. It is explained that each of the measures in the TPIM is either directly or indirectly targeted at addressing this risk which is associated with his ability to abscond. It is clear that the question of whether the measures should be retained as being necessary and proportionate is subject to continuing review as is shown by the fact that many have been relaxed from time to time as I have explained in paragraph 27(h) above. In addition many issues still remain as to whether the current measures imposed on BF are necessary to restrict BF’s involvement in terrorism-related activity.45. This requires an assessment of the danger posed by BF and in particular the correctness of the Security Service’s assessment that BF maintains an aim to travel abroad and will seek to travel in the absence of TPIM restrictions in order to engage in terrorism related activity.46. Turning to the individual measures, a specific argument was raised against the obligation of BF having to report to the monitoring company from either his home or that of V. It was said that instead he should either be allowed to report from his mobile phone or not at all particularly in the light of the GPS tag which he wears and of the fact that he has been given a dispensation from reporting from his home or that of V on many occasions. The Security Service explained that the requirement for BF to call the monitoring company each day from either house provided a level of additional reassurance over and above the GPS tag that BF had not absconded. In addition it reduced the amount of time in which BF could seek to abscond as well as deterring BF from absconding.[47]In my view these restrictions were necessary and proportionate to reduce the chance that BF will abscond so as to become involved in terrorism-related activity. In the light of the matters set out in this judgment when dealing with requirement C, I cannot say that this decision to prevent him using a mobile phone is flawed.[48]I have considered the entire package of restrictions on BF and have concluded after taking account of all the submissions of Mr Grieves and Miss Farbey that they are necessary and proportionate and were so when the present TPIM was made in January 2013 and at the present time. If need be, I would have reached the same conclusion because as Ouseley J explained in Secretary of State v BG [2011] EWHC 1478 (Admin), the Secretary of State has to be given “considerable respect” in the “sensitive task of winding down” ([66] and [67]).The matters set out in the Closed judgment provide additional support for this conclusion.

VII. The Bank Mellat Judgment

[49]After the oral hearing in this case was concluded, the Supreme Court delivered its judgment in Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38 on 19 June 2013 in which Lord Neuberger of Abbotsbury set out certain conclusions from his experience having had a Closed material hearing and he said that:- “68. First, where a judge gives an Open judgment and a Closed judgment, it is highly desirable that, in the Open judgment, the judge(i) identifies every conclusion in that judgment which has been reached in whole or in part in the light of points made or evidence referred to in the Closed judgment, and(ii) that the judge says that this is what he or she has done. This was a point made by Carnwath LJ, in a judgment given after Mitting J's judgments in this case, in AT v Secretary of State for the Home Department [2012] EWCA Civ 42, para 51. 69. Secondly, a judge who has relied on Closed material in a Closed judgment, should say in the Open judgment as much as can properly be said about the Closed material which he has relied on. Any party who has been excluded from the Closed hearing should know as much as possible about the court's reasoning, and the evidence and arguments it received. Further, the more the judge can say about the Closed material in the Open judgment, the less likely it is that a Closed hearing will be asked for or accorded on an appeal. In cases where judges have to give a Closed judgment, they should say in their Open judgment, as far as they properly can, what the Closed material has contributed to the overall assessment they have reached in their Open judgment.”[50]In the light of those observations I asked counsel for BF, the Special Advocates and Counsel for the Secretary of State to give me their observations and make written comments. I then received helpful thoughtful comments from all of them.[51]In consequence, and in the light of the continuing role of the Special Advocate and the Secretary of State to ensure that prior to publication as much as possible concerning the Court’s reasoning is contained in the Open judgment, I invited comments from both the Special Advocate and the Secretary of State as to whether my draft Open judgment complied with the duty of ensuring that as much as possible of the Court’s reasoning was contained in the Open judgment. Having sent the drafts of the Open and the Closed judgment to the parties I received helpful comments and this Open judgment is the consequence.

VIII. Conclusion

[52]Notwithstanding the able arguments of Mr Grieves, this challenge must be rejected.

Cited in 2 later judgments