Commissioner of Police of The Metropolis v Haroon Aswat [2025] EWHC 786 (KB)

[2025] EWHC 786 (KB)Case No KB-2025-000222
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/04/2025
Before
MR JUSTICE JAY
Between
COMMISSIONER OF POLICE OF THE METROPOLISClaimantMR HAROON ASWATDefendant
John Goss (instructed by Directorate of Legal Services, Metropolitan Police Service) for ClaimantThe Defendant in Person for in personHearing Hearing date: 1 April 2025
Approved Judgment.............................MR JUSTICE JAY
[1]The Commissioner of Police of the Metropolis (“the Claimant”) applies for a notification order under section 57 of and schedule 4 to the Counter-Terrorism Act 2008 (“the 2008 Act”) against Mr Haroon Aswat (“the Defendant”).[2]The Defendant appears before me in person. Belatedly, he has acknowledged service. Although he does not oppose the making of the order it is important that I be satisfied that all the conditions are properly fulfilled.[3]On 30 March 2015 the Defendant pleaded guilty in the United States to one count of conspiracy to provide support to a foreign terrorist organisation before 1 January 2000 and to a similar count of providing material to such an organisation. He received a total sentence of imprisonment of 20 years. He did not serve the entirety of that sentence because periods of detention in this country awaiting extradition were taken into account.[4]The Defendant is now 50 years old. He was born in Yorkshire. From November 1999 he was involved under the direction of Abu Hamza in an attempt to set up a terrorist training camp in Oregon in the United States and then in similar activities in Seattle. The United States Government described the purpose of this camp as “to train young impressionable men in America to fight and kill so that so they could travel to Afghanistan to join forces with al Qaeda”. The Defendant subsequently left America and received training in an al Qaeda training camp in Afghanistan in mid-2001. On 20 July 2005 he was arrested in Zambia and extradited to the United Kingdom. At the time of his arrest terrorist material and what may have been component parts for explosive devices was taken from him. On 7 August that year he was arrested in the United Kingdom under section 73 of the Extradition Act 2003 pursuant to an American arrest warrant. The subsequent extradition proceedings were extremely lengthy. Eventually the Defendant was extradited to America to stand trial.[5]From 27 March 2008 to the date of his extradition the Defendant was detained pursuant to powers under the Mental Health Act 1983 at Broadmoor secure hospital. Having served his sentence in America, the Defendant was deported from there to the United Kingdom in December 2022 and since then he has been detained under the Mental Health Act 1983, currently at Bethlem Royal Hospital. The Defendant’s treatment has been effective and his release from detention is expected in the relatively near future. I understand that he will return to his family in Yorkshire.[6]When the Defendant was still in an American secure unit and his deportation to the United Kingdom was under contemplation, a British psychiatrist Dr Richard Taylor was dispatched to America in the summer of 2022, and on 11 September he prepared a report. This report identifies that in 2017 the defendant made remarks to prison staff in support of al Qaeda and threatened violence towards them, and that in 2022 while actively psychotic he sent letters which made demands and death threats seemingly motivated by terrorist ideology. At one point in his interview with Dr Taylor he said “I am a terrorist” and Dr Taylor’s assessment was that he openly endorsed extremist ideology.[7]Dr Taylor concluded that there was no evidence that the Defendant was mentally ill at the time of his index offences. It seemed likely that he has had limited opportunity to address the radical extremist mindset evident at the time of his offences. He had traits of glibness, superficial charm, charisma, intelligence, and elements of manipulativeness or narcissism. Even when in a relatively stable mental state the Defendant has continued to express violent extremists Islamic ideology. The diagnosis which he has received is of schizoaffective disorder the symptoms of which may include unpredictable and aggressive behaviour. In 2022 he was highly ambivalent about the need for medication and had relapsed twice as a result of stopping treatment. When he relapses he becomes more violent.[8]Although Dr Taylor did not conduct a full risk assessment for terrorist risk, he identified 15 of the 22 relevant factors in ERG22+ as being likely to be present. By way of conclusion, “there remains the risk of Islamic violent extremism motivated targeted terrorist offending behaviour given his threats to kill Jews, Christians and certain groups of Muslims … [t]here is also a risk of him influencing other vulnerable individuals, as when he is in an abnormal mental state his religious extremist rhetoric is amplified by mental illness.”[9]No formal terrorist risk assessment has been carried out in the United Kingdom since the Defendant’s return here. The circumstances of his detention have precluded that. However, on the basis of the material which is available the Defendant has been assessed by various police officers - including by Detective Inspector Karen Bradley who is the senior officer dealing with this case - that he remains a risk to national security.[10]The notification requirements imposed by the 2008 Act provide important national security safeguards. By the relevant provisions of the 2008 Act which I have already referred to, these particular requirements can be applied to individuals convicted of terrorism offences outside the United Kingdom by an application for a notification order. There are three conditions for making an order as set out in para 3 of Schedule 4. The first condition is that under the law in force in the country outside the United Kingdom, the individual has been convicted of a corresponding foreign offence and has received in respect of the offence the sentence equivalent to a sentence mentioned in various sections of the 2008 Act. The first condition is not made out if there is evidence of a flagrant denial of the person's right to a fair trial. The second condition is that a sentence was imposed or order made after the coming into force of this Act. The third condition is that the period for which the notification requirements would apply in respect of the offence has not expired.[11]By para 3(6) of Schedule 4, “if on an application for a notification order it is proved that the conditions in sub-paragraphs (2), (4) and (5) are met, the court must make the order”.[12]In my judgement, it is clear that these conditions have been fulfilled in the present case. The first condition is deemed to be met unless it is contested in the Acknowledgment of Service and it has not been. In any event, by para 2 of Schedule 4 to the 2008 Act, the corresponding offence here is the carrying out of actual acts done for the purposes of terrorism. As for the second condition, the relevant equivalent UK “triggering sentence” is one of imprisonment for a term of 12 months or more: see section 45(1)(ii). As for the third condition, the relevant period for which notification requirements would apply is 30 years: see section 53(1)(a)(ii).[13]As I have said, the court must make an order under section 57 and Schedule 4 if the three conditions are met. I was taken by Mr Goss is his helpful skeleton argument to relevant authority. It seems to me that for present purposes it is reasonably clear, first, that the statutory scheme is ECHR compliant: see R (Irfan) v SSHD [2012] EWCA Civ 1471; [2013] QB 855; secondly, that there is no room in the statutory scheme for an individuated proportionality exercise: see R (Halabi) v The Crown Court at Southwark [2020] EWHC 1053 (Admin); [2021] 1 WLR 3830, a decision of the Divisional Court (Haddon-Cave LJ and Holgate J) at paras 57-58; and, thirdly, it is at least arguable that Article 8 of the Convention has an independent scope on an individualised basis in a “wholly exceptional case”: see the decision of Collins-Rice J in Commissioner of Police of the Metropolis v Bary [2022] EWHC 405(QB), at para 39. Plainly, there is a tension between Halabi and Bary which one day may require resolution.[14]The last reported Part 4 application in this jurisdiction was Chief Constable of West Midlands Police v Geele [2023] EWHC 2819 (KB). Chamberlain J was of the following view:
“17. There is an issue which may fall to be determined in another case as to whether the mandatory terms are para 3(6) of schedule 4 themselves determine the question of proportionality or whether the court in considering whether the application is vitiated by a public law error should conduct a proportionality exercise on the facts of the individual case. 18. The answer to that question does not matter in this case because even if it is necessary to conduct a proportionality exercise on the facts of the individual case I am wholly satisfied that on the facts of this case the decision to apply for a notification order constitutes a proportionate restriction or Mr Geele’s Article 8 rights.”
[15]I will assume for present purposes that the exceptional jurisdiction identified by Collins-Rice J exists. I am entirely satisfied that there is no room for its application on these facts. These were very serious offences and there is evidence of ongoing risk. A risk assessment in relation to terrorist offending is always inherently uncertain and in the present case is compounded by the mental instability of the Defendant. As for the three conditions, I have already explained why in my judgment these have been met. I deal ideal for completeness with two subsidiary points. First, there is no evidence that the Defendant did not receive a fair trial in America, and as I have said he did plead guilty. Secondly, the sentence imposed on the Defendant in 2015 was after the commencement of Part 4 of the 2008 Act and it does not matter for present purposes that the relevant offending occurred before its coming into force.[16]Overall, I am satisfied for the reasons that I have given that a notification order should be made in all the circumstances of this case.