The Secretary of State for the Home Department v EB [2016] EWHC 1970 (Admin)

[2016] EWHC 1970 (Admin)Case No PTA/10/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF PROCEEDINGS UNDER TERRORISM PREVENTION AND INVESTIGATIONS MEASURES ACT 2011
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/07/2016
Before
MR JUSTICE MITTING
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTApplicantEBRespondent
Miss Lisa Giovannetti QC, Mr Andrew Deakin And Mr James Stansfeld (instructed by Government Legal Department) for ApplicantMr Naeem Mian And Miss Sultana Tafadar (instructed by Rahman Ravelli Solicitors) for RespondentMr Zubair Ahmad And Mr Dominic Lewis (instructed by the Special Advocates’ Support Office) as Special AdvocatesHearing Hearing dates: 11 – 15 July 2016

Open Judgment Approved

[1]EB is a 28 year old British citizen of Algerian extraction. On 13 October 2013 he was arrested on suspicion of possession of a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58 Terrorism Act 2000. On 20 October 2013 he was charged with the same offence and his case was transferred for trial to the Central Criminal Court. On 7 October 2015, six days before his trial was to begin, he changed his plea to guilty of that offence. On 1 April 2015 he was sentenced to three years imprisonment. Because of the time which he had spent on remand he was released on licence on 21 April 2015. The licence expires on 20 October 2016.[2]On 17 April 2015 the Secretary of State was given permission to impose terrorism prevention and investigation measures on EB by Ouseley J. The TPIM was imposed on 21 April 2015. On 20 April 2016 the Secretary of State extended the TPIM for one year to 20 April 2017. There is no appeal against that decision.[3]On 22 October 2015 EB applied to the Secretary of State to vary some of the measures. On 13 November 2015, the Secretary of State refused in substance to make the variations requested. On 9 December 2015 EB gave notice of appeal against three of the measures. The notice was given in a form applicable to the modification or renewal of non-derogating control orders under the Prevention of Terrorism Act 2005, but all have sensibly treated it as an appeal against the Secretary of State’s refusal to vary the measures specified in the TPIM notice under section 16(3)(a) Terrorism Prevention and Investigation Measures Act 2011.[4]On 4 February 2016 Cranston J ordered that the statutory review of the TPIM and the hearing of EB’s appeal should take place together in the week commencing 11 July 2016. This is the open judgment on both review and appeal. There is also an in-camera judgment and a closed judgment. Any court subsequently wishing to understand the reasons for the decisions made by me will have to read all three judgments.

Law

[5]Under section 2(1) of the 2011 Act the Secretary of State may by a TPIM notice impose specified terrorism prevention and investigation measures on an individual if the five conditions set out in section 3 are met. They are, “(1) Condition A is that the Secretary of State is satisfied on the balance of probabilities 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….” It is common ground that condition E was met when Ouseley J granted permission on 21 April 2015 and that if condition A is satisfied, so is condition B. The live issues all concern conditions A, C and D.[6]Terrorism-related activity is defined in section 4 “(1) For the purposes of this Act, 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 Act it is immaterial whether the acts of terrorism in question are specified acts of terrorism or acts of terrorism in general.”[7]The Secretary of State can extend a TPIM notice for one year under section 5(3) if conditions A, C and D are met. An individual subject to a TPIM notice can apply to the Secretary of State to vary measures specified in the notice under section 12(2). The Secretary of State may, by way of variation of measures specified in a TPIM notice, relax or remove measures under section 12(1).[8]The function of the court is to review the decisions of the Secretary of State that conditions A – E were met and continue to be met and that the individual measures in respect of which an application has been made under section 12(2) continue to be necessary for the statutory purposes under section 16(3)(b). In each case, the court must apply the principles applicable on an application for judicial review: section 16(6).[9]In conducting such a review, the court is not the primary fact-finder. The court is only entitled to quash the Secretary of State’s decision if satisfied either that she did not decide on the balance of probabilities that the individual is or has been involved in terrorism-related activities or that her decision that he had been was irrational or took into account matters which she should not have taken into account or failed to take into account matters which she should have taken into account. Her decision is in principle susceptible to review if based on an established potentially determinative mistake of fact: E v Secretary of State for the Home Department [2004] QB 1044.[10]EB adamantly denies that he has ever been involved in terrorism-related activity, despite his plea of guilty to the section 58 offence. The possibility that the Secretary of State has made her decisions upon a potentially determinative mistake of fact needs, therefore, to be explored. I have undertaken this task with the assistance of the special advocates in the closed hearing. I have decided, on the facts of the case, that it would be desirable, even if not legally necessary, that I should satisfy myself, on the balance of probabilities, whether or not EB has been involved in terrorism-related activity; and, having done so to compare my decision and the material which underlies it with the decisions of the Secretary of State and the material, substantially the same, which underlay her decisions.[11]As to the challenged individual measures which the Secretary of State has refused to vary, the test is necessity, both at the date of the Secretary of State’s refusal and now. Necessity requires a judgment on the proportionality of each disputed measure; but I am obliged to recognise that the Secretary of State is better placed than the court to decide what individual measures are required to protect the public against the risk posed by an individual: MB v Secretary of State for the Home Department [2006] EWCA Civ 1140, a control order case, whose reasoning applies with equal force to TPIMs.

The Secretary of State’s decisions under conditions A, C and D

[12]The Secretary of State’s decisions were taken on the basis of the Security Service’s letter of recommendation for a contingency TPIM notice dated 3 March 2015 and the Home Office memorandum of 5 March 2015 and supporting material. The recommendation of the Security Service and its endorsement by Home Office officials was based on six assessments: that EBa. A. Was a committed Islamist extremist and holds strong Islamist extremist views.b. B. At some point between January and June 2013, travelled to Syria where he associated with Islamist extremists and undertook Islamist extremist activity, possibly including training and fighting.c. C. Engaged in UK focussed attack planning alongside EF.d. D. In October 2013 discussed the acquisition of a firearm in connection with the above attack planning.e. E. In October 2013 was found in possession of a document containing instructions on bomb-making in association with his UK focussed attack plans andf. F. Has maintained an Islamist extremist mindset since his arrest and would seek to re-engage in significant terrorism-related activity once released from custody. For the purpose of determining whether or not condition A was satisfied, assessments B to E inclusive are potentially determinative. At their heart is assessment B: that EB travelled to Syria between January and June 2013, associated with Islamist extremists, and undertook Islamist extremist activity.[13]The Secretary of State can be taken to have accepted the core assessments of the Security Service, in particular assessment B.

EB’s case

[14]EB flatly denies assessments A, B, C and F. He has denied assessment D, but in terms that are ambiguous. He admits the section 58 offence, but denies that it had anything to do with attack planning. He has produced a detailed witness statement signed on 1 February 2016 to which he has annexed some contemporaneous documents. He has not given oral evidence or been cross-examined on it. Sections C and D of his witness statement deal with the core assessment.

The facts

[15]It is common ground that on 24 January 2013, EB flew from Heathrow to Cairo to meet his longstanding friend EF who had been in Cairo since 27 December 2012. EB has produced copies of emails exchanged between him and EF between 18 and 25 January 2013. I accept that the emails are genuine in the sense that they were typed and sent on the days and at the times stated in the annexed copies. They begin by EB telling EF about the death in a car accident a month before of a man known to both of them and continue with EB’s statement of his wish for “chicks and hot weather” to make him feel better. There then follows an exchange, mostly about destinations other than Egypt to fulfil that requirement, in which EB expresses a preference for them. Eventually, he relented and agreed to travel to Cairo. He told EF that he had booked the flight ticket (for 24/25 January) on 21 January 2013.[16]It is common ground that on 26 January 2013 both EF and EB flew from Cairo to Istanbul. EB says that this was a last minute decision, made because EF was concerned about his position. Although EB’s statement is laconic about the grounds for this concern, they have been expanded upon by Mr Mian in the in-camera hearing, in terms which I cannot set out in this open judgment. I have nevertheless taken them into account in reaching the conclusion expressed below.[17]It is common ground that EB telephoned his mother on 28 January 2013. EB states that he was unable to speak to his mother and left a voicemail. She told police on 30 January 2013 that he had telephoned her on 28 January from a telephone number ending 7139 and was in Turkey, with “Horrum”, was helping with humanitarian aid and would call her in a month or two. There was no challenge to the police record of his mother’s statement to them, which is consistent with the evidence of EB and her own later account that she played a voicemail message to them. She reported that EB was missing to the police on 29 January 2013.[18]In her unsigned and undated witness statement, EB’s mother said that “a couple of days” after the voicemail message of 28 January 2013, she received another telephone call from him and that after that call, they kept in regular contact on the telephone. She also said that she travelled to see him in Turkey “about three weeks later”. Her statement is inaccurate. It is common ground that she travelled to Istanbul to visit EB on 19 April 2013. I accept that she was in communication with him for about three weeks before her visit. I do not accept that she received a telephone call two days after the voicemail on 28 January 2013. She would surely have told the police about it had she done so; and I do not accept that she and EB were in communication from then until about three weeks before she flew to Istanbul to visit him on 19 April 2013. The explanation for her error may be that she has confused the first police visit to her home on 30 January 2013 with the second on 5 April 2013, in which she told the police that she had received a call from EB on 30 March 2013.[19]In paragraph 26 of his witness statement EB says that he was in regular contact with his mother “throughout February, March and April”, by email and phone. He annexes, as evidence of this contact emails exchanged between them from 5 February 2013 to 4 June 2013, two days before his return to the United Kingdom. The first pair of emails annexed read as follows:
“From: mounir rarmoul mrarmoul@googlemail.com Date: 9 April 2013 22:28:20 To:frarmoul@aol.com Subject: Re: Mum Hey mum. How is everything. I am good and well. Email me when you can. Take care. Love you. See you soon inshallah On 5 February 2013 17:28, <frarmoul@aol.com> wrote: Hi Son, please call me if you get this email. Me and Amin are both not very well, Let me know if you are Ok or need money or anything? Love u Mum. Let me know if you are ever coming back home?”
Date: 9 April 2013 22:28:20 To:frarmoul@aol.com Subject: Re: Mum On 5 February 2013 17:28, <frarmoul@aol.com> wrote:

Subject: Re: Mum

[20]The deployment of this pair of emails by EB is instructive in two respects: it is inconsistent with the, plainly truthful and accurate, report of his mother to the police who visited her on 5 April 2013 that he had telephoned her on 30 March 2013 (1OS/27/174); and, if his email of 9 April 2013 was a response to her email of 5 February 2013, it disproves his contention that he was in regular communication with his mother by email throughout February and March 2013. I am satisfied, to a standard higher than the balance of probabilities, that he was not. From the end of January until the end of March, EB was out of communication with his family in the UK.[21]Why was he out of contact with his family? EB offers no explanation. His case is that he was helping refugees on the Turkish side of the Syrian border in February and returned to Istanbul at the beginning of March (as to that, see paragraph 31 of his witness statement). No explanation, plausible or otherwise, has been offered by him or on his behalf as to why it would not have been possible for him to communicate with his family in the UK in either situation. Nobody has suggested that working facilities for the transmission of mobile telephone messages and emails on the Turkish side of the border with Syria did not exist or that there was any difficulty in making use of established facilities in Istanbul. The only material to which Mr Mian can point which might support EB’s account is the statement reported by EF’s wife, on the basis of a telephone call between him and her on 29 March 2013 that his uncle Kemal had been visited by EF in hospital in Istanbul “on a regular basis for the last number of days”. (IOS/27/174). This is not inconsistent with the return of EF and EB to Istanbul on or shortly before he made his call to his wife on 29 March 2013. I am satisfied that EB cut off communication with his family in the UK for about two months for a purpose: to ensure that his whereabouts and activities could not be detected by any agency with the capacity to monitor or intercept electronic communications.[22]I am satisfied on the balance of probabilities, principally on the basis of material disclosed only in the Secretary of State’s closed case, that EF and EB did travel to Syria and remain there for substantially all of February and March 2013. On the same basis, I am also satisfied on the balance of probabilities that, while there, they associated with Islamist extremists and did participate in terrorism-related activity, as defined in section 4 of the 2011 Act. On the same basis, I am also satisfied on the balance of probabilities that, before EB arrived in Cairo, EF intended that both should travel to Syria for those purposes: and that the exchange of emails on which EB relies between 18 and 25 January, was intended to conceal their true purpose from any agency with the capacity to intercept them.[23]In reaching those conclusions, it has not been necessary for me to form a conclusion about the matters discussed in paragraphs 31 to 39 inclusive of the written closing submissions of Mr Mian and Miss Tafadar, which I address briefly in the in-camera judgment. Nor do I accept that EB’s mother told the police that he had told her that he was in Syria.[24]I deal with assessment C in the in-camera judgment.[25]A probe inserted in EF’s car on 1 October 2013 recorded a discussion between EF and EB about the acquisition of a live firearm on 3 October 2013, in the following uncoded terms, “EF He’s supposed to text me when he’s got the deal done (a reference to Khalid) And by the way it’s only about a grand so…I don’t think its going to be a great quality EB No it won’t If it fires? If it actually EF It will, it’s not a replica it’s a (unclear) I said EB It’s not great though but it’s alright EF Better than nothing EB It’s better than nothing (unclear) EF At the moment EB We should have got that when we have a place to hide it, where we gonna hide it? EF At my house EB Okay, yeah that’s the safest place (unclear) EF That’s true” (1OS/22/137-139). And by the way it’s only about a grand so…I don’t think its going to be a great quality If it fires? If it actually EB It’s not great though but it’s alright EF Better than nothing EB It’s better than nothing (unclear) EF At the moment EF At my house EB Okay, yeah that’s the safest place (unclear) EF That’s true”

EB Okay, yeah that’s the safest place (unclear)

[26]They returned to the topic on 8 October 2013, this time in coded language: “EF Do you understand? Making contact? So basically update me at every stage and just say yeah the sausage is nice erm, there’s enough sauce in it EB What’s the sausage? EF Bullets. If there’s not enough sauce in it, you will have to make that decision if we’re gonna take it or not. (Unclear) If it’s less than five (?) it’s not worth it bruv. Understand? I mean that big time. And the price let me know how much (unclear)” (1OS/23/154). So basically update me at every stage and just say yeah the sausage is nice erm, there’s enough sauce in it[27]EB’s response to this allegation is laconic. In paragraph 39 of his witness statement, all that he says is, “I deny that (EF) and I were attempting to obtain firearms in order to support UK focussed attack plans. We did not discuss attack plans, nor did we progress from discussing terrorist attacks to making practical arrangements for these attacks. Any supposed discussion of the acquisition of firearms was not in relation to terrorism.” He goes on to make a comment which can only be dealt with in the in-camera judgment.[28]The inevitable inference from EB’s response to this material is that he accepts that he and EF were discussing a firearm and ammunition and, by inference, were attempting to obtain them.[29]On 30 September 2013, a police search of EF’s car revealed that both he and EB had an SD card taped inside the case of each man’s iPhone. It contained detailed instructions for the construction of improvised explosive devices. This was the subject of the section 58 charge of which they were both convicted. All that EB says about it in paragraph 38 of his witness statement is, “I was found in possession of a document containing instructions on bomb-making. I had this document because (EF) asked me to download it so that he could refer to it.” This laconic statement conceals more than it reveals. In particular, it does not begin to explain why both had the same document in their possession. For reasons explained in part in the in-camera judgment and in part in the closed judgment, I am satisfied that EB had it in his possession for a terrorism-related purpose.[30]Assessments A and F are securely founded on the facts which I have found to be proved in the three judgments: save, perhaps, in the case of the support of terrorism-related activities by a state for its own purposes, it is inevitable that an individual who has undertaken terrorism-related activities will have an extremist mindset, at least before he undertakes them. Possession of an extremist mindset is not itself a terrorism-related activity as defined by section 4. For reasons set out in the closed judgment, I am satisfied that the Secretary of State was entitled to conclude that EB had an Islamist extremist mindset before and after his arrest and that she was entitled to take that into account in determining whether or not to impose TPIMs and to determine what they should be.[31]The material presented to the Secretary of State by the Security Service and by her officials focussed on the issues which I have determined in the three judgments on the balance of probabilities. The minor errors noted by the open advocates were not material to the decision. Applying judicial review standards, nothing material was omitted and nothing material was included which should not have been. The decision was securely founded on fact and was one to which she was entitled to come. She was entitled to be satisfied on the balance of probabilities that EB had been involved in terrorism-related activity. He has not acknowledged it, nor given any clear indication that he intends to put it behind him. In those circumstances the Secretary of State’s conclusion that it was necessary for purposes connected with protecting members of the public from the risk of terrorism for TPIMs to be imposed on him was reasonable. Conditions A and C were satisfied.[32]Mr Mian’s cross-examination of Paul Daly, Head of the Home Office TPIM and Passport Seizure Team leaves open the possibility, not explicitly advanced in his written closing submissions, that the existence of similar terms in his prison licence made it unnecessary to impose TPIMs on EB. If this suggestion is alive, I reject it. The Secretary of State was entitled to conclude that measures supervised by her officials with the assistance of the police and the Security Service were necessary for the purpose of protecting members of the public from a risk of terrorism. The probation service, which is principally responsible for monitoring licence conditions, does not have the capacity which the Home Office, the police and the Security Service have to protect the public. Further, the licence will expire in October 2016. Given the potential for events in northern Syria and northern Iraq to trigger terrorist attacks in Europe, including the United Kingdom, the Secretary of State was entitled to conclude that TPIMs enduring for a maximum of two years after EB’s release from prison were necessary to protect members of the public from a risk of terrorism, both during and beyond the licence period.[33]EB has not acknowledged that he has undertaken the terrorism-related activities which I have found that he has. It is true that he has complied, to the letter, with the TPIMs imposed upon him, save in one minor instance which was not his fault. He has also entered into extensive discussions with a Home Office appointed intervention provider (an expert in de-radicalisation), to whom he has maintained the same account about his knowledge of and involvement in EF’s activities as he has in these proceedings. There are encouraging signs that he wishes to resume productive work and to undertake necessary training courses to permit him to do so. He was married in an Islamic ceremony in the spring of 2015. There is no reason to doubt that the marriage is genuine. These positive developments give some reason to hope that he will put terrorism-related activity behind him. The Secretary of State and her advisers must have in mind an exit strategy. Mr Daly assures me, and I accept, that he has this well in mind.[34]There remains, however, a formidable obstacle to a successful exit strategy: EB’s unwillingness to acknowledge, even informally and obliquely that he has engaged in the terrorism-related activities which the Secretary of State (and I) have found on balance of probabilities that he has done. Unless and until he does, the Secretary of State faces the unenviable choice between maintaining measures which have been effective to contain the risk posed by him, and are likely to remain so, for a limited period, expiring in April 2017 and taking the short-term risk of relaxation of the measures. Her decision, to date, is that the measures should remain in place and that any relaxation should be under her control, on the advice of her officials, the Security Service and the police. That is a reasonable decision. It would not be open to me to upset it on judicial review grounds.[35]For the reasons given, I am satisfied that conditions A and C were, have at all material times been, and remain met. EB’s appeal against the refusal to vary three of the measures and a review of aspects of four of the measures[36]EB appealed against the Secretary of State’s refusal to vary three of the measures, i) the measure relocating him from London to a provincial city. ii) the requirement for notification of meetings with persons outside a limited category outside his residence. iii) the restriction on the amount of cash which he could have in any week to £50. (iii) is no longer in issue, the limit having been increased since his notice of appeal to £75 per week.[37]In addition EB challenges the necessity for the imposition of the following measures iv) two exclusion zones in the provincial city. v) the requirement to report daily to a police station. vi) the length of the curfew imposed on him (10 hours, from 9pm until 7am). vii) the need to receive approval before accessing a website on the internet for the first time and the prohibition on others entering his property with an internet enabled device.[38]The main focus of the hearing was on the relocation measure and the Secretary of State’s refusal to vary it so as to permit EB to live nearer to his mother and wife in London. EB contends that this measure alone imposes upon him an unnecessary and disproportionate restriction on his ability to conduct private and family life which has adversely affected his health and well-being. He has produced two unchallenged reports from Dr. Quinton Deeley, a Consultant Psychiatrist, dated 18 January 2016 and 2 July 2016. His diagnosis was that EB suffered from a mild depressive disorder and from post-traumatic stress disorder and symptoms of anxiety. In his opinion, which I accept, relocation to a provincial city, away from his mother and wife, coupled with the restrictions on establishing social contact with others have a significant adverse effect upon his mental health and well-being. The imposition and retention of such a measure can only be justified if it is necessary and proportionate. Mr Mian submits that, because when the statement made by Emma Ross on 3 November 2014 in support of a contingency TPIM notice was made, there was no proposal for relocation necessity is not established. There is a simple and sufficient answer to that submission: when the statement was made, the Secretary of State could not lawfully have imposed a TPIM containing a relocation measure. The principal justification for the measure is set out in paragraph 69 of the first open statement: that it reduces the likelihood that EB will abscond, leave the United Kingdom and resume terrorism-related activity abroad. Witness FM gave an additional reason: that it reduced his ability to make contact with other extremists based in and near London. I am satisfied, applying judicial review principles, that the Secretary of State was entitled to impose and is entitled to maintain this measure. I accept that it imposes a substantial burden upon EB’s wife and parents, because they have to travel to a provincial city to see him. The burden is somewhat mitigated by the Secretary of State’s willingness to pay the reasonable cost of their travel. I also accept that it would be at least problematic, more likely impracticable, for his wife to move permanently to live with him, for reasons connected with her family – her parents’ ill-health and their ignorance of the fact that she has married him. Like the Secretary of State’s advisers, I am concerned that maintenance of this measure until the TPIM expires may damage a factor vital to weaning EB off terrorism-related activities: the support and companionship of his wife and family. As I have already stated, I am satisfied that this is an acutely difficult judgment for the Secretary of State to make. The foundation for the relocation measure is, however, sound. It is significantly more difficult to abscond from the United Kingdom from a provincial city than from London; and exclusion from the London area reduces his capacity to make contact with extremists based there.[39]The two exclusion zones about which EB complains in the provincial city are the bus station from which National Express services run and a small area of the centre of the provincial city in which a Territorial Army barracks is located. Maintenance of the first exclusion zone is clearly necessary. During the course of the hearing, EB’s representatives canvassed the possibility that the second exclusion zone could be varied so as to permit him to travel through it on public transport, without alighting. This is a proposal which the Secretary of State should consider, but will need the advice of the Security Service and the police before making a decision. Until she has that advice, I cannot say that her decision to maintain the exclusion zone is unreasonable.

The association measure

[40]Paragraph 9.3 of the TPIM notice prohibits him from meeting persons other than his wife, parents and brother plus other limited categories of persons outside his residence unless he has notified the Home Office of their name and address and the location of the meeting two working days before the first meeting. It also required him to notify the Home Office of any gathering at which he expected to meet such a person two working days before the gathering and to continue or resume a meeting with a person by chance, except on two days prior notification. These requirements are troublesome to administer both for EB and for the Home Office and, I accept, impose significant constraints upon his social life. Having to ask an acquaintance at first meeting for name and address must, despite what Mr Daly said in cross-examination, impose a severe constraint on developing acquaintanceships or forming friendships. Nevertheless, I am satisfied that, in principle, the Secretary of State was entitled to decide that the measure was necessary. In one particular respect, it may inhibit a successful exit strategy. An important feature of it is that EB should be encouraged to attend training courses with a view to resuming paid work. He will inevitably meet large numbers of people for the first time, whose identities he does not know. To ask him to obtain their names and addresses before meeting them again on the course or at social events during it, would be burdensome and pointless. The Secretary of State, through Mr Daly, has indicated that, once EB has provided details of the courses which he wishes to attend to the Home Office and they have approved them, this measure will be relaxed in respect of such occasions. I accept that they will be. On that premise, I also accept the Secretary of State’s decision to uphold this measure is necessary and proportionate.[41]Paragraph 11 of the TPIM notice requires EB to report daily at the police station nearest to his house, about 20 minutes walk away from it. The justification for the measure is that it reduces the risk of absconding and permits EB to be seen face-to-face daily by a police officer. The measure is inconvenient for EB, but now that he has a bicycle, not especially time consuming. I accept that it is necessary and that the Secretary of State was and is entitled to decide that it is. The wearing of a GPS tag supplements, rather than eliminates, the need for this measure.[42]EB complains that the overnight curfew is too long principally because it inhibits his ability to socialise with his friends and family, principally his wife. He has a point. The Secretary of State has stated that she is “agreeable to considering requests that EB’s curfew be relaxed (from 9pm to 7am to 11pm to 7am)” on the dates when they visit him. Unless there was a specific reason for refusing to relax the curfew on those occasions, I would not consider the refusal to be reasonable. The Secretary of State has stated that, despite the cautious words used, “the Home Office will look to facilitate such a request wherever possible”. I am satisfied that this meets the (reasonable) request of EB and does not require the wording of the curfew measure to be redrawn.[43]Little if any attention was paid to (vii) in the hearing. I have no reason to doubt that, in principle, the measure is necessary and proportionate and am not in any position to judge whether or not an alternative form of words might meet the Secretary of State’s requirements. I am not satisfied that her decision to maintain this measure is unreasonable and would suggest that if EB has a proposal for variation, which would reduce the difficulties for him and his visitors (by, for example, permitting his wife and parents to bring their identified mobile telephones into his house) he should make it.[44]For the reasons given, I am satisfied that the disputed measures are, both individually and in the context of the measures taken as a whole, ones which the Secretary of State could reasonably have decided to impose and maintain. I therefore reject the appeal and decline to quash any of the measures or give directions to the Secretary of State in relation to them under section 16(6) and (7).

Disclosure

[45]Although EB has not had disclosed to him the intelligence and evidential material on the basis of which I have decided that assessment B is made out, he has had sufficient details of the allegation to be able to give effective instructions to the Special Advocates about it and to give and call evidence in support of his account which, if true, might rebut it – for example, an account of when and where and under whose auspices he provided help to refugees; and some supporting documentary evidence from the organisation or organisations for which he was working.

Cited in 1 later judgment