Secretary of State for the Home Department v IM & Ors [2018] EWHC 1664 (Admin)

Case No PTA/1/2016[2018] EWHC 1664 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 5 June 2018
Before
MR JUSTICE NICOL
Between
Secretary of State for the Home DepartmentClaimantIM & OrsDefendant
APPLICATION BY LONDON BOROUGH OF WALTHAM FOREST
RE: SECRETARY OF STATE FOR THE HOME DEPARTMENT
-V-
IM, LG AND JM
ANONYMISATION APPLIES
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A P P E A R A N C E S
MS R KIRBY and MR C BARNES (instructed by London Borough of Waltham Forest) appeared on behalf of the Applicant.
MS C MCGAHEY QC and MR J STANSFELD (instructed by Government Legal Department) appeared on behalf of the Respondent.
MR S POWLES (instructed by Ahmed & Co) appeared on behalf of IM.
J U D G M E N T
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[1]In 2016 the Secretary of State began proceedings against IM, JM and LG for measures under the Terrorism Prevention and Investigation Measures Act 2011 ("TPIM A 2011"). The court ordered that each of three respondents be anonymised.[2]The Act requires a review to be conducted of the measures (see TPIM A 2011 s.9). I conducted that review and on 30 June 2017 gave judgment. I had to consider whether the statutory conditions for a TPIM existed at the time when the TPIMs had been made and continued to exist at the date of the hearing.[3]Subject to some variations in relation to certain particular measures, I upheld the TPIMs in relation to each of the three respondents. That meant that I held that the Secretary of State for the Home Department was entitled and right to conclude that the respondents had engaged in terrorism related activities. The evidence before me included closed material and accordingly, I gave open and closed judgments.[4]One of the respondents is IM. He has five children. On 4 April 2017 the London Borough of Waltham Forest ("LBWF") issued proceedings in respect of the four children, who were then living with their mother. The proceedings were for supervision orders under the Children Act 1989 s.31(1)(b).[5]The fifth child, referred to as child A, was then living with her father. Child A, who is now 14, was subsequently made the subject of proceedings by the local authority in which she and her father lived. Child A moved back to London in March 2018. The responsibility for the proceedings in relation to her has been transferred to LBWF. In relation to child A, the application is for a care order under the Children Act 1989 s.31(1)(a). I am told that there are no interim orders in place, but, with the agreement of her parents, child A is presently in foster care.[6]In respect of all the children, LBWF will only be able to obtain the orders it seeks if it can satisfy the requirements of s.31(2) of the Children Act 1989. This says:
"A court may only make a care order or supervision order if it is satisfied - (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to - (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control."
[7]The concern of LBWF is the risk to the children because of the parents' extreme political beliefs and the risk that they have, or are likely to, radicalise each of their children. LBWF also fears that the parents have failed to cooperate with them and have obstructed their efforts to work outside formal court proceedings. I am told that both parents deny that they hold extreme political views.[8]The first stage for the local authority is to establish the factual background of the parents and the family. The case has been allocated to Gwynneth Knowles J. A fact-finding hearing has been listed for twelve days commencing on 25 June 2018. A hearing of the present application has been listed with that fact-finding hearing in mind. I have reserved this judgment, but only for a few hours so that it can be made available to the parties as soon as possible.[9]The TPIMs which I reviewed originally lasted for one year. They were extended for a further year, but they cannot be extended further. Consequently, the TPIM in relation to IM will come to an end on 19 June 2018.[10]It is in relation to that hearing that LBWF issued the present application on 4 April 2018. It seeks disclosure into the family proceedings of certain documents produced in the course of the TPIM proceedings before me. CPR r.5.4C makes provision for a non-party's rights of access to certain documents, but in TPIM proceedings that provision is displaced unless the court orders otherwise: see CPR r.80.30.[11]Other documents which LBWF wishes to see would anyway have to be the subject of an application. They include witness statements which were adopted as the witnesses' evidence-in-chief. By CPR r.32.13 such statements are open to inspection unless the court orders otherwise, but only during the trial. The trial in question concluded long ago.[12]In order to explain what documents LBWF wishes to access, it is necessary to explain a little more about the TPIM proceedings. The Secretary of State's case against each of the three respondents involved their alleged association with an organisation called Al-Muhajiroun ("ALM"), which was founded in the UK by Omar Bakri Muhammad in 1996. Its aim was the establishment of an Islamic Caliphate ruled by Sharia law.[13]ALM was publicly disbanded by Omar Bakri Muhammad in 2004. The position of IM and JM in the TPIM proceedings was that, thereafter, ALM ceased to exist. The Secretary of State's position was that it re-emerged under a different name and was effectively the same organisation. For simplicity, it continued to be referred to as ‘ALM’. In the TPIM proceedings the Secretary of State produced three open statements regarding ALM known as ALM1, ALM2 and ALM3. These referred to IM, but also to a number of other individuals alleged to be associated with ALM, including JM and LG.[14]For each of the respondents, the Secretary of State also produced respondent-specific statements. In IM's case there were two, which I shall refer to as SSHD IM1 and SSHD IM2. Each such statement was accompanied by the supporting material which could be disclosed in open form. The supporting evidence included a copy of a television programme.[15]In addition, the Secretary of State also relied on two open statements made by a Home Office civil servant, Paul Daly, which were accompanied by redacted copies of minutes of regular meetings held in connection with those subject to TPIMs. Those statements of Mr Daly are referred to as Daly 1 and Daly 2.[16]IM served the following evidence: his first witness statement (IM1), which included in the exhibit medical records of a third party minor; a witness statement from his former wife and the mother of the five children who were the subject of the family proceedings; a psychiatric report on IM from Dr Meena Naguib dated 15 August 2016; an independent social worker's report from Christine Brown dated 21 October 2016 on the third party minor; and IM's second witness statement, which included an exhibited letter concerning certain medical disorders of IM (IM2). I understand that IM has already voluntarily disclosed the report or reports of Christine Brown. He has not wished to disclose anything further from the TPIM proceedings.[17]I have said I delivered open and closed judgments. The open judgment was in different forms. I included a confidential annex which was provided only to IM, his legal team and his special advocates. This dealt exclusively with evidence concerning a third party minor which I had permitted to be given in private. I explain my decision in this regard in my judgment Secretary of State for the Home Department v IM, JM and LG [2017] EWHC 376 (Admin).[18]Furthermore, the form of the open judgment released for publication was redacted so as to avoid potential clues as to the identity of the three respondents. This also omitted the confidential annex. It is this form of the judgment which is available online as Secretary of State for the Home Department v LG, IM and JM [2017] EWHC 1529 (Admin).[19]After this lengthy introduction, I can now explain what LBWF wishes to have released into the family proceedings. They are(a) an unredacted version of the paragraphs of the open judgment which specifically concern IM, viz paras.152 to 213;(b) the three open statements about ALM (ALM1, ALM2 and ALM3);(c) Mr Daly's two statements, Daly 1 and Daly 2;(d) the open statements from the SSHD regarding IM specifically (viz SSHD IM1 and SSHD IM2);(e) the two statements filed by IM (IM1 and IM2);(f) the statement of IM's former wife;(g) the psychiatric report of Dr Meena Naguib;(h) the confidential annex to my open judgment.[20]On behalf of LBWF, Ms Kirby emphasises that she does not (my emphasis) seek(1) any closed material;(2) any material relating to JM and LG; and(3) any other parts of the unredacted open judgment apart from what has been identified above.[21]The Secretary of State opposes the disclosure of categories (b) to (e). The Secretary of State is neutral as to the application in relation to categories (f) and (g) if disclosure can be made without risking breaching the anonymity order in relation to IM. The Secretary of State is also neutral as regards (h). Mr Powles on IM's behalf opposes all of the disclosure applications except for (a) and (h). Ms Ghrálaigh provided a skeleton argument on behalf of JM and objected to the disclosure of (a), (b), (c) and (d).[22]Ms Kirby for LBWF told me that the local authority became aware of the TPIM proceedings in September 2017. It was only in February 2018 that it had understood that there was a publicly available version of my open judgment. It obtained this. It told Gwynneth Knowles J that it wished to rely on it and its underlying facts as an efficient means of establishing that IM held extreme political views and was a member of a proscribed organisation and had through radicalisation encouraged others to join ISIL and was involved in terrorism-related activity. Gwynneth Knowles J had directed IM to state what parts of the judgment he accepted and what parts he did not. I am told that on 6 March 2018 he said that he did not accept any part of it. It was this which prompted LBWF to make the present application to me in April 2018.[23]I refused permission to appeal my judgment in the TPIM proceedings. IM and the other two respondents have renewed their applications for permission to appeal to the Court of Appeal. LBWF says that at a hearing in the Family Court on 4 May 2018, IM said that the Court of Appeal had granted permission. The Secretary of State's understanding was that the application for permission had not yet been decided by the Court of Appeal. As I informed the parties, in view of this uncertainty, I made my own enquiries and found that the application for permission to appeal was still outstanding in the Court of Appeal.[24]Ms Kirby submits that LBWF should be able to rely upon the factual underpinning of the judgment which I made. Reliance upon my judgment alone would not, it is said, be sufficient because of the possibility that it will be overturned on appeal. It is said that the present proceedings are already long running and should be brought to an early end if the factual foundation for my decision is unreliable. Uncertainty will continue and that would mean that the children either had been or were likely to be exposed to continuing significant harm.[25]She further notes that IM did not give evidence in the proceedings before me, but in the family proceedings he would be a competent witness. Indeed, she submitted that he would be a compellable witness, although she was a little unclear as to which party might compel his attendance as a witness. In any event, she submitted it was almost invariable in family proceedings for parents to give evidence at a fact-finding hearing and I should assume that IM would do so. I add that Mr Powles for IM is not instructed in the family court proceedings and was not able to tell me if IM did intend to give evidence.[26]If IM gave evidence, the material available to me should be put to him and also to his wife if she gave evidence, Ms Kirby submitted. Family proceedings normally take place in private and are normally subject to reporting restrictions preventing the identification of children. LBWF is obliged to put before the court all relevant evidence.[27]She submits that assuming there is an analogous balancing exercise to that in PII situations, the likely detriment from disclosure of the requested material into the family proceedings would be very modest at worst. IM himself will, of course, have had access to all the open material in the course of the TPIM proceedings.[28]Ms McGahey QC on behalf of the Secretary of State resists disclosure on the following bases. The material disclosed in open by the Secretary of State was sensitive. For the purpose of the TPIM proceedings, a balance had to be struck between retaining the secrecy of this material and giving IM the greatest possible opportunity to meet the case against him. IM's statements were a direct response to the Secretary of State's case. The balance which the Secretary of State had to strike for the purpose of the TPIM proceedings is now passed. There is no longer a national security benefit in allowing further disclosure. If open TPIM materials were to be made more widely available, it could act as a disinhibitor to future TPIM proceedings.[29]The material which is sought by LBWF in ALM1, 2 and 3 and SSHD IM1 and SSHD IM2 is substantial. LBWF has said that it does not seek material identifying the other two respondents, i.e. JM and LG, but redacting the material to conceal that which would identify those two would entail very considerable work. That is not a burden which the Secretary of State should be required to undertake unless the interests of justice in the family proceedings really demands it.[30]In any case, Ms McGahey submits this additional material would not assist the family court. It would in any case only have an incomplete picture of the underlying evidence before me because it would not have the closed evidence. In my open judgment, I said that I relied on both open and closed material. Furthermore, I had heard oral evidence from Mr Daly and a security service witness in open and closed hearings. The documentary evidence would not give more information about this oral evidence than is already contained in the open judgment.[31]Ms McGahey disputes the relevance of the application for permission to appeal my TPIM judgment to the Court of Appeal. My judgment remains valid unless and until it is overturned by the Court of Appeal. Permission to appeal has not yet been granted. If permission was granted and the appeal was allowed, the family court might have to reconsider its decision even if the present application for disclosure was granted. Further, the present grounds of appeal challenge my approach to the granting of a TPIM order rather than the findings of fact which I made.[32]Mr Powles for IM argues that the family court is best placed to decide what material it requires LBWF to produce. He submits that LBWF repeatedly requested access to IM's medical records, but has been refused. In light of that, this court should not grant it access to Dr Naguib's report. In any case, that report is now dated. If the family court was to consider psychiatric evidence appropriate, it should commission an up to date report. In any case, the present hearing is concerned exclusively with whether the children have suffered significant harm or are likely to do so. IM's mental health forms no part of the findings which LBWF seeks to establish by maintaining that threshold exists.[33]Mr Powles also argues that the police and local authority had duties under the Counter-Terrorism and Security Act 2015 s.26, 36, 37 and 38 to cooperate for child protection purposes and to share all appropriate evidence. That regime, he argues, should not be sidestepped by seeking evidence adduced in the TPIM proceedings. The evidence in the TPIM proceedings was geared to a different function: whether the conditions for a TPIM were satisfied, as was the evidence of IM and his wife in reply. There is no good reason, he argues, for the court to exercise its power in favour of LBWF's application.[34]JM opposes the application and adopts the submissions by Mr Powles. Ms Ghrálaigh also argues that this would be a breach of JM's rights under Art.8 of the ECHR. Further, she submits there should not be disclosure of any material which would reveal JM's identity.[35]I can start with the parts of Ms Kirby's application which turned out to be non-contentious. First, at the hearing neither Ms McGahey nor Mr Powles objected to the London Borough of Waltham Forest being provided with a version of the open judgment which included the unredacted paras.152 to 213. Those redactions were made to preserve IM's anonymity. The local authority, of course, knows his identity. There is no good reason why they should not see those paragraphs without the redactions.[36]Next, I take the statement provided by IM's ex-wife for the TPIM proceedings. She is the mother of the five children. Ms Kirby told me that she was aware of the present application and of the present hearing. She has chosen not to provide any skeleton argument or be represented at the hearing. I can see no reason why her statement made for the purpose of the TPIM proceedings should not be released into the family court proceedings.[37]Next I take the confidential annex to my open judgment. Mr Powles did not resist disclosure of this to the local authority for the purpose of the family proceedings. That was obviously a sensible concession.[38]I can next take together the application for the Secretary of State's open evidence in the TPIM proceedings, i.e. categories (b), (c) and (d) above. As to these, first, I do not accept Mr Powles' argument that the application should be rejected on the grounds that it is too late. It is perhaps curious that the local authority was not aware of the TPIM until September 2017 and that it was not aware of the redacted open judgment until February 2018, but that is the evidence and I have no reason to doubt it.[39]The fact-finding hearing is due to take place later this month. It has been possible with cooperation from all sides to accommodate a hearing of the application in sufficient time before then.[40]Nor do I accept Mr Powles' argument that I should leave it to the family court to decide what evidence it wishes to hear. While family proceedings have some aspects which are unique, a judge of that court is normally reliant, like any other judge, on the parties for adducing such evidence as is considered relevant and admissible.[41]I do not accept either that the police can be relied upon to disclose any relevant material. The Secretary of State has access to additional sources of information. In addition, it is a necessary condition for a TPIM that the Secretary of State has consulted the police as to whether there are realistic grounds for a successful prosecution: see TPIMA 2011 s.10. I was told in the TPIM proceedings that the Secretary of State had been told in relation to each respondent that there was insufficient evidence to provide a realistic prospect of charging them with terrorism-related offences.[42]While I do not accept these grounds of opposition to the application, I do consider that the arguments of Ms McGahey have greater force. The material which LBWF seeks was disclosed to IM and the other respondents and was deployed in a public hearing. However, in judging whether that was appropriate, the Secretary of State had to strike a balance between the potential advantages and disadvantages of so acting.[43]So far as inculpatory material is concerned, the Secretary of State is free to make this choice when deciding what open material to serve. He or she may supplement the open material with closed inculpatory material, but the objection to disclosure of closed material is reviewed by the special advocates for the individual and the negotiations then take place with the Secretary of State's lawyers.[44]Ultimately, the court can be asked to rule on whether the objection to disclosure is sound. However, if the court rules against the Secretary of State, disclosure does not automatically follow. The Secretary of State is then put to an election: either to rely on the material and disclose it; or to abandon reliance on that material. There is an equivalent process with exculpatory material. The Secretary of State can be put to the choice of making an appropriate admission or abandoning reliance on the aspect of his or her case to which the exculpatory material goes.[45]I accept that these matters can sometimes involve difficult and delicate judgments. It would not be safe to assume that because they have been made in favour of deploying the material relied upon by the Secretary of State against IM, the same assessment would have been made had it been known that the material might have to be disclosed to a further group of people in the course of family proceedings.[46]Ms Kirby is no doubt right that the Secretary of State must also have a concern about the potential radicalisation of children, but that is only one element which has to feature in the Secretary of State's judgments. On matters of this kind, the court should be very cautious before disagreeing with the Secretary of State's view as to where the proper balance on matters of national security lies.[47]I also agree with Ms McGahey that the advantages which the LBWF claims for disclosure are, in any case, unreal. As she rightly says, even if the disclosure sought is made, Gwynneth Knowles J will not have the whole factual foundation on which I made my decisions. She will not have the closed material. In principle, closed material can be exculpatory as well as inculpatory. She will be able to learn only indirectly what I have said in my open judgment about the oral evidence which I heard from the witnesses called by the Secretary of State.[48]Ms Kirby accepted in the course of her submissions that it would be open to Gwynneth Knowles J to take into account my findings of fact. Of course, like any first instance judge, I must accept that my conclusions may be overturned on appeal. However, as Ms McGahey argued, for the time being, they stand. The Court of Appeal has yet to grant even permission. The grounds of appeal presently advanced by IM in the Court of Appeal concern the law regarding TPIMs and the one ground of appeal which had sought to challenge the findings of fact has not been pursued. If I am wrong about this, then if the Court of Appeal grants permission and if the judgment I gave is overturned, it may mean that the whole foundation will be undermined even if disclosure was to be ordered.[49]These essentially are the reasons why I would refuse the application in relation to categories (b), (c) and (d).[50]Ms McGahey accepted that the objection to the work which would be involved in making the necessary redactions was very much secondary. She was right that of itself, that would not be a sufficient objection. However, having seen the material, I do recognise that the task would be formidable.[51]In addition to taking out the express references to JM and LG, it would be necessary to consider what other redactions should be made to avoid indirect identification. I also agree that this would not just be a task of "cutting", but sometimes additions would be necessary to make sense of what remains. Had there been good grounds otherwise for ordering disclosure, that is a burden which the Secretary of State would have had to bear, but I accept that those grounds have not been established.[52]As for the two statements filed by IM in the TPIM proceedings, I also accept the submissions of Ms McGahey that these were responsive to the Secretary of State's case. Thus the objection to ordering disclosure of the Secretary of State's own material applies indirectly to them. I accept Ms McGahey's argument.[53]The final category is the psychiatric report of Dr Naguib. Ms Kirby fairly accepted that IM's mental state is not material to the present stage with which Gwynneth Knowles J is concerned. She submitted that it would nonetheless be convenient to deal with this matter now.[54]There are though other difficulties advanced by Mr Powles. First, the report was prepared nearly two years ago. If and insofar as IM's mental health is relevant to later stages of Gwynneth Knowles J's enquiry, it will surely be more useful to have an up to date report.[55]For this reason, I am not persuaded that the present material available justifies further disclosure of that report. Should that change and there be a good reason why Dr Naguib's views are relevant, then a further application could be made by LBWF.[56]Second, as I understand it, a party to family proceedings cannot be compelled to provide medical evidence. On the face of it, that alone would be a good reason why I should refuse the order in relation to Dr Naguib's report. Conclusion[57]Returning to Ms Kirby's categories, (a) an unredacted version of the paragraphs of the judgment which specifically concern IM, paras.152 to 213: this is granted. I shall ask the Secretary of State to provide a copy of the unredacted version of those paragraphs to LBWF.[58]The three open statements about ALM, ALM1, ALM2 and ALM3: this is refused. Mr Daly's two statements, Daly 1 and Daly 2: this is refused. The open statements from the Secretary of State regarding IM specifically, viz SSHD IM1 and SSHD IM2: these are refused. The two statements filed by IM, IM1 and IM2: these are refused.[59]The statement of IM's former wife: this is granted. Again, I shall ask the Secretary of State to provide a copy to LBWF.[60]The psychiatric report of Dr Meena Naguib: this is refused, but if conditions change and the applicant wishes to do so, the application can be renewed on forty-eight hours' notice to IM's solicitors.[61]Confidential annex to my open judgment: this is granted. Again, I shall ask the Secretary of State to make a copy available to LBWF. MR JUSTICE NICOL: Mr Stansfeld, the requests are made politely to the Secretary of State, but I hope the Secretary of State would consider they're not unreasonable. MR STANSFELD: My Lord, we're of course happy to provide that information. MR JUSTICE NICOL: Good. MR STANSFELD: We'll endeavour to do so as soon as possible. MR JUSTICE NICOL: Well, obviously that's necessary because, as you heard from my judgment and as you can see from the papers, the factual hearing before Mrs Justice Gwynneth Knowles is due to take place very soon. MR STANSFELD: My Lord, yes, well aware of that. Certainly, it shouldn't be too onerous a task and we'd hope to be able to do that relatively quickly. MR JUSTICE NICOL: Good. MR STANSFELD: My Lord, one observation just in respect of your judgment, just in respect of a redaction to any printed judgment. You named the documentary in your judgment. That has been redacted in the other judgments that have been published. MR JUSTICE NICOL: Yes. MR STANSFELD: We would ask that continues for consistency. MR JUSTICE NICOL: I will ask the reporter who's in court, please, to not report the name of the documentary. MR STANSFELD: Thank you, my Lord. MR JUSTICE NICOL: Good. Yes, Mr Powles, anything? MR POWLES: Forgive me, my Lord. (After a pause) My Lord, there's only the question of costs for this application made by the local authority. MR JUSTICE NICOL: Costs? Yes. Are you making an application for costs? MR POWLES: My Lord, yes. MR JUSTICE NICOL: Yes. Anything else you want to say in support of that? MR POWLES: No, my Lord. MR JUSTICE NICOL: No, right. MS KIRBY: My Lord, just on the issue of the speed of the limited disclosure that's been ordered, Mrs Justice Gwynneth Knowles has directed that the local authority recast its case as a final version by Friday at 4 o'clock of this week. So we'd be very grateful if those documents could be with us as soon as possible so that they can be included in that final pleading, references to them and included in the bundle. But I can probably speak with my learned friend about that. MR JUSTICE NICOL: Mr Stansfeld, it's a relatively modest task. If I say by close of business tomorrow, can you do that? MR STANSFELD: My Lord, yes. MS KIRBY: Thank you, my Lord. I don't know whether your Lordship wants to hear from me on the issue of costs. MR JUSTICE NICOL: Yes. MS KIRBY: I presume my learned friend is legally aided. In addition to that, the local authority has been compelled to come to this court in pursuit of its dual public duty and primarily because IM in particular has been hugely unhelpful in terms of disclosure of any relevant information in relation to these proceedings or about his activities generally. It's not by choice that the local authority finds itself making the application that it has. IM or on his behalf, some concessions were made today which could have been made previously and a written document, it's submitted, had the points that IM wished to make. MR JUSTICE NICOL: Thank you. Mr Powles, anything you want to say? MR POWLES: Nothing in response. MR JUSTICE NICOL: I'll make no order as to costs. It does seem to me that while the local authority hasn't got everything it wanted, it did get something and it's not exactly complete vindication for IM's position. Right. Anything else that I can do? MS KIRBY: Thank you, my Lord. MR STANSFELD: Thank you, my Lord. MR JUSTICE NICOL: No. Good, all right. Thank you all very much indeed. MS KIRBY: Thank you, my Lord.