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||Neutral Citation Number:  EWHC 1529 (Admin)
||Case No: PTA/1/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
Mr Justice Nicol
|| Secretary of State for the Home Department
||- and -
Cathryn McGahey QC, Ben Watson, Andrew Deakin and James Stansfeld (instructed by Government Legal Department) for the Applicant
Tom Hickman and Jessica Jones (instructed by Birnberg Peirce) for LG
Danny Friedman QC and Steven Powles (instructed by Ahmed and Co) for IM
Hugh Southey QC and Blinne Ní Ghrálaigh (instructed by Ahmed and Co) for JM
Helen Mountfield QC and Shaheen Rahman QC (for LG) and Charles Cory-Wright QC and Martin Goudie QC (for IM and JM) (Special Advocates instructed by The Special Advocates' Support Office)
Hearing dates: 20th-24th March, 27th-31st March and 3rd -7th April 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Approved Judgement (Redacted for Distribution to the Public)
Mr Justice Nicol:
- The Terrorism Prevention and Investigation Measures Act 2011 ('TPMIA 2011') introduced Terrorist Prevention and Investigation Measures ('TPIMs'). These are various restrictions and requirements of a kind which are listed in Schedule 1 to TPIMA 2011. The Act has a 'sunset clause' so that the SSHD's TPIM powers will come to an end automatically. Originally, the date was 5 years from Royal Assent (14th December 2011) – s.21(1), but s.21(2) authorised the SSHD to extend their life for another 5 years and this power was exercised by the Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016 SI 2016 No.1166. Section 2 of the Act authorises the Secretary of State for the Home Department ('SSHD') to issue a notice setting out the particular measures which the SSHD imposes on the individual in question. Before a TPIM can be imposed, five conditions must be met – see TPIMA 2011 s.3. The last condition is that the SSHD obtains the permission of the Court before issuing a TPIM notice. A low threshold is set at that stage: the Court has only to be satisfied that the application is not 'obviously flawed' – see TPIMA 2011 s.6(3). Cranston J. concluded that the SSHD had satisfied this initial test for the three individuals with whom I am concerned and granted her permission to issue the TPIM notices for each of them. By orders of the same day, he required each of them to be anonymised. Hence, they are referred to in these proceedings as LG, IM and JM. They must not be identified in any report of these proceedings.
- Although a low threshold is set at the permission stage, the Court is required to conduct a more stringent review subsequently - see TPIMA 2011 s.9. It is the reviews under s.9 which I have been conducting in respect of LG, IM and JM.
- The five conditions which must be met before a TPIM can be imposed are referred to as 'Conditions A – E' and they are spelt out in s.6 of TPIMA 2011 which currently says,
'(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 measure to be imposed on the individual.
(5) Condition E is that
(a) the Court gives the Secretary of State permission under s.6 or…'
- Conditions A, B and D use the expression 'terrorism-related activity' ('TRA'). This term is defined in TPIMA 2011 s.4 as follows,
'(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 (a);
And for the purposes of this Act it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism in general.
(2) For the purposes of this Act, it is immaterial whether an individual's involvement in terrorism-related activity occurs before or after the coming into force of this Act.'
- TPIMA 2011 s.30(1) defines 'terrorism' by reference to the Terrorism Act 2000 ('TA 2000') s.1(1) – (4) which says,
'(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 purposes 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.
- Section 1 of TA 2000 has a fifth subsection which says,
'(5) A reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.'
Reference has been made to several proscribed organisations in these proceedings, as I shall explain. However, I am asked to note that TA 2000 s.1(5) is not incorporated into the definition of terrorism for the purposes of the TIPMA 2011 by s.30(1). However, rather confusingly, the term 'act of terrorism' does include anything constituting an action taken for the purposes of terrorism within the meaning of TA 2000 s.1(5) – see TPIMA 2011 s.30(1).
- I have said that I have been conducting 'review hearings' for each of the TPIM notices. Shortly after a TPIM notice is served, there must be a directions hearing at which arrangements are to be made for a further hearing in relation to the measures imposed by the notice – see TPIMA 2011 s.8. The function of the Court at such review hearings is dealt with in TPIMA 2011 s.9 which says,
'(1) On a review hearing…the function of the court is to review the decisions of the Secretary of State that the relevant conditions were met and continue to be met.
(2) In doing so, the court must apply the principles applicable on an application for judicial review.
(5) The court has the following powers (and only those powers) on a review hearing –
(a) power to quash the TPIM notice;
(b) power to quash measures specified in the TPIM notice;
(c) power to give directions to the Secretary of State for, or in relation to, -
(i) the revocation of the TPIM notice, or
(ii) the variation of measures specified in the TPIM notice.
(6) If the court does not exercise any of its powers under subsection (5), the court must decide that the TPIM notice is to continue in force.
(7) If the court exercises a power under subsection (5)(b) or (c) (ii), the court must decide that the TPIM notice is to continue in force subject to the exercise of that power.
(8) In this section "relevant conditions" means –
(a) condition A;
(b) condition B;
(c) condition C; and
(d) condition D.'
- I shall return to the issue of precisely what standard I should apply in carrying out this review since this was a matter of debate between the parties. At this stage, though, I observe that s.9(1) requires me to review the decisions of the Secretary of State that the specified conditions 'were met and continue to be met'. This use of the past and present tense means, for instance in the context of Condition C, that I must review, not only the decision of the Secretary of State that, at the time of the TPIM notice, she reasonably considered that it was necessary for purposes connected with protecting members of the public from a risk of terrorism for a TPIM to be imposed, but also her decision that she reasonably considers that a TPIM continues to be necessary for that purpose at the time of my review. Likewise for the purpose of Condition D, I must review her decision that she reasonably considered each individual measure was necessary for preventing or restricting the individual's involvement in TRA at the time of the TPIM notice and also her decision that she reasonably considers that particular measure for that particular individual, continues to be necessary for those purposes now. It seems to me that Condition D also required the SSHD to be satisfied that the package of measures as a whole was necessary.
- In this regard, Condition A is rather different. I repeat, 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' [my emphasis].
- I take from this and s.9(1):
a. At the time of issuing the TPIM notice the SSHD must be satisfied on the balance of probabilities that the respondent is now, or has in the past, been involved in TRA.
b. At the time of the review hearing the SSHD must still be satisfied that the respondent is now, or has in the past, been involved in TRA.
c. But, it is not necessary that the SSHD be satisfied that the respondent is still, at the time of the review hearing, involved in TRA. Indeed, were it otherwise, the SSHD would have to be satisfied that the TPIM had failed to achieve its objective and that is unlikely to have been Parliament's intention.
d. Condition B potentially imposes a restriction on the relevance of past involvement in TRA, since the TRA with which the respondent has been involved must be 'new' TRA. However, the term 'new TRA' is defined in s.3(6). No TPIM notice had before June 2016 been issued to any of these Respondents. It follows that any TRA with which these Respondents was involved was necessarily 'new' TRA for the purposes of Condition B – see TPIMA 2011 s.3(6)(a). Each of the Respondents accepted that, in the circumstances of these cases, Condition B imposes no substantive additional requirement over and above Condition A.
e. While there is no other express restriction on how far back in the past involvement in TRA may have occurred, for the purposes of Condition A, its distance in time from the imposition of the TPIM, may be relevant to the necessity and proportionality of the TPIM (i.e. Condition C) or the individual measures (i.e. Condition D) – see for instance SSHD v BM  1 WLR 2734 at  per Collins J.
Ms McGahey QC, for the SSHD, drew my attention to TPIMA 2011 s.30(4) which says,
'For the purposes of determining what measures may be imposed on an individual, it is immaterial whether the involvement in [TRA] to be prevented or restricted by the measures is connected with matters to which the Secretary of State's belief for the purpose of Condition A relates.'
Thus, she is right that there is not a necessary connection between the past involvement in TRA and the protection of the public from terrorism which the TPIM or the individual measures are intended to afford. However, on the facts of this case, the SSHD relies on the same pool of evidence to show that the three Conditions A, C and D, were and continue to be satisfied.
- These three review hearings have been held together for convenience because there is a common element to the factual background of each of them. Nonetheless, the exercise which I must perform is an individual one in each case. Thus, I must, in each individual case, review the decisions of the SSHD that each of the Conditions A, C and D was met when the TPIM was imposed and that it continues to be met. That will include a review of the proportionality of the measures as regards each of the individuals.
- The common thread which runs through the three cases has to do with the SSHD's case that each of LG, IM and JM are members of, and are or were senior leaders of, an organisation called Al Muhajiroun ('ALM'). ALM was founded in the UK by Omar Bakri Mohammed ('OBM') in 1996. Its aim was the establishment of an Islamic Caliphate ruled by Sharia law. OBM publicly disbanded ALM in 2004. The position of IM and JM is that ALM then ceased to exist. The SSHD's position is that it re-emerged under the names of Al Ghurabaa / The Saved Sect.
- The TA 2000 s.3 allows the SSHD to ban or proscribe terrorist organisations which are judged to promote and encourage terrorism. In 2006 the SSHD proscribed Al Ghurabaa / The Saved Sect. Terrorist organisations can change their names (as the SSHD says had already happened with ALM by 2006). The TA 2000 s.3(6) allows the SSHD to give alternative names adopted by proscribed organisations. The SSHD has used this power to give the following as alternative names for ALM: Muslims Against Crusades, Need4Khilafah, the Shariah Project and the Islamic Dawah Foundation. In the case of the last three, these were added by The Proscribed Organisations (Name Changes) Order 2014 SI 2014 No. 1612 with effect from 27th June 2014. Unless the context requires otherwise, I shall continue to refer to all of them as 'ALM'.
- Islamic State in the Levant, Islamic State in Sham and Daesh are all alternative names for the organisation which, as is notorious, has declared its control of various parts of Syria and Iraq. The different names are unimportant and I shall refer to it as 'ISIL'.
- Al-Qaeda was proscribed in 2001. It is the SSHD's case that ISIL began as an affiliate of Al-Qaeda and so was effectively also proscribed. On 20th June 2014 ISIL was proscribed by the SSHD in its own name as a terrorist organisation – see Terrorism Act 2000 (Proscribed Organisations) Amendment (No.2) Order 2014 SI 2014 No. 1624.
- The leader of ISIL is Abu Bakr Al-Baghdadi ('Al-Baghdadi'). On 29th June 2014 Al-Baghdadi declared that the areas under ISIL's control were the Caliphate whose emergence had been long foretold by, at least some, Muslims and that he was the Caliph.
- ISIL has called for attacks on the West and disbelievers more generally. Thus for instance, the ISIL spokesman, Abu Mohammed Al-Adnani released a speech on 21st September 2014 which called on Muslims to carry out individual attacks against disbelievers, whether civilian or military, whenever possible and with whatever weapons were available. There have been hundreds of incidents in response. In 2015, for instance, some 55 attacks were attributed to core ISIL actions and 454 to affiliated branches. The attack on the Tunisian beach resort in June 2015, the bombing of the Russian airliner over Sinai in October 2015 and the attacks in Paris in November 2015 are all assessed to be ISIL attacks.
- Part of the concern with ALM is that its senior leaders have influenced, encouraged or given tacit approval to a number of UK attack plans. These include the following:
a. Brustom Ziamani ('Ziamani') who was found in possession of a knife and a hammer when arrested in August 2014. He was convicted of an offence under Terrorism Act 2006 s.5 and sentenced to 22 years' imprisonment with 5 years on licence. The sentencing judge said that he had come under the malign influence of ALM.
b. Nadir Ali Syed ('Nadir') who was arrested in November 2014 and convicted of planning an ISIL-inspired knife attack. Nadir attended ALM da'wah stalls on a number of occasions. He was sentenced to life imprisonment with a minimum term of 15 years.
c. [redacted] a 15 year old boy who was convicted of inciting another person to commit an act of terrorism [redacted]. [The boy] and LG had exchanged a number of messages. [The boy] was sentenced to detention for life with a minimum term of 5 years.
d. Junead Khan planned a terrorist attack against US military personnel. He bought a knife and planned to emulate Jihadi John by beheading one of them. He was arrested in July 2015 and convicted in April 2016. He was sentenced to life imprisonment with a minimum term of 12 years. He was a member of ALM. In passing sentence, Edis J. said Khan had been radicalised by ALM.
- On 7th July 2014 a document was posted to an Indonesian website. This purported to pledge the allegiance of ALM to the Islamic State declared by Al-Baghdadi. The document was posted by Mohammed Fachry, who is believed to be a senior leader of ALM in Indonesia. It purported to be signed by OBM among others. It called on Muslims living in non-Muslim lands to migrate to the Caliphate and stated that it was the obligation of every Muslim to pledge their allegiance to the Islamic Caliphate. The police believed that it remained on line for 48 hours.
- In [redacted] individuals, including LG, IM and JM were arrested under TA 2000 ss.11 and 12 and Terrorism Act 2006 s.1 for offences linked to ALM. They were all bailed. In September 2015 the three Respondents were told that no further action would be taken against them. They were never charged.
- [redacted] It is the SSHD's case that Anjem Choudary ('Anjem') and Mizanur Rahman ('Mizanur') were, and are, senior leaders of ALM. On 5th August 2015 Anjem and Mizanur were charged with offences under TA 2000 s.12, of inviting support for a terrorist organisation, namely ISIL. They had been among the signatories of the ALM declaration on 7th July 2014. Anjem and Mizanur were tried and convicted. They were each sentenced to 5 ½ years' imprisonment.
The procedural history
- Before applying for permission to issue a TPIM, the SSHD is required by TPIMA 2011 s.10 to consult with the police as to whether there was evidence which could lead to a realistic prospect of a successful prosecution. The SSHD did so in relation to each of these Respondents and was told that there was insufficient admissible evidence to provide a realistic prospect of charging them with terrorism related offences.
- The SSHD applied for permission to impose TPIM notices on the three Respondents on 10th June 2016. Permission was granted by Cranston J. on 14th June 2016.
- In Closed, the special advocates for LG (only) submitted that important material considerations were not drawn to the attention of the SSHD before she decided to impose the TPIM in his case. They also submitted that important material was not drawn to the attention of Cranston J. at the time that he was asked to give permission for service of the notices. LG's Special Advocates submitted that, in consequence, the SSHD's decision should be quashed because she had failed to take into account all relevant considerations. Likewise Cranston J's decision was ineffective because it had been based on deficient disclosure. LG's Special Advocates relied on the decision of Mitting J. in AT v SSHD  EWHC 512 (Admin) and on the Court of Appeal in CF v SSHD  EWCA Civ 559.
- I rejected these submissions for reasons which cannot be put into open.
- The TPIM notices were served on each of the Respondents on 20th June 2016.
- The review process is triggered automatically - see TPIMA 2011 s.8. It is for the SSHD to show that the necessary conditions for each TPIM notice were, and continue to be, met. The SSHD relies on three open statements dealing with ALM generally and, for each Respondent, two open statements specific to that Respondent. There is also closed evidence. The latter has been considered by Special Advocates appointed to represent the interests of the Respondents (Ms Helen Mountfield QC and Ms Shaheen Rahman QC in the case of LG; Mr Charles Cory-Wright QC and Mr Martin Goudie QC for IM and JM) as it concerns each of them. The process required by CPR r.80.24 for consideration of the SSHD's objections to disclosing the closed material has been completed. From time to time gists of parts of the Closed hearing have been made available in Open.
- In addition to the review hearings which I have been conducting, a TPIM respondent can appeal against the refusal of the SSHD to vary a particular measure – see TPIMA 2011 s.16. LG appealed against the SSHD's refusal to vary the Overnight Residence Measure ('ORM') in his TPIM. His appeal was heard by Hickinbottom J. on 10-11th November 2016. Hickinbottom J. dismissed the appeal on 21st December 2016 see LG v SSHD  EWHC 3217 (Admin). One of the grounds on which LG had relied was that his relocation and separation from his family had caused him to be depressed and to revert to an addiction to heroin. He argued that Hickinbottom J's public judgment should be redacted to remove references to this. His application to this effect was heard on 13th February 2017, but refused in a further judgment given on 17th February 2017 – see LG v SSHD  EWHC 271 (Admin).
- The SSHD is obliged to keep under review whether Conditions C and D are met – see TPIMA 2011 s.11. The police and the Home Office have frequent contact with each of the Respondents and their solicitors. Contact Officers within the Home Office are identified with whom the Respondents and their solicitors can liaise. In addition a TPIM Review Group ('TRG') meets at least every three months to review the position of each Respondent. Additional ad hoc TRG meetings can be arranged and have been held for LG.
- I have been shown what are called 'minutes' of these meetings. There is some force to the Respondents' criticisms of the documenting of these meetings. First, although described as 'minutes' they are in reality a composite of summaries prepared in advance of the meeting and a record of discussions at the meeting. Next, not all the documents referred to may have been available at the time of the meeting. Thus, the minutes of the meeting of 20th September 2016 referred to a statement by LG of the same date and Mr Daly (the SSHD's Home Office witness) said that the statement might not have been received until after the meeting. It was possible that it was received that same morning. It was not possible to say how widely the statement had been circulated since it was not the practice to copy all the documentation to all the attendees. That said, it is not my task to review the practices of the Home Office or the TRG. I have to, and will, conduct the review which TPIMA 2011 s.9 requires. I am satisfied that I have all the material I need for that purpose. Furthermore, Mr Daly had seen all the relevant documents and reports. His views that the TPIMs were necessary and proportionate (reflecting for these purposes the views of the SSHD) were fully informed.
- So far as LG is concerned, there were further developments in June 2017. On 8th June LG was arrested for further alleged breaches of his TPIM. On 9th June he was remanded in custody until 30th June. On 10th June the SSHD revoked LG's TPIM. Nonetheless, both LG and the SSHD have urged me to continue with the review in his case as well as the reviews of IM and JM. I was informed of these developments on 13th June. By then the process of drafting this judgment was far advanced. I agreed that the course which the parties advocated was sensible without the need to invite further detailed submissions.
The TPIM measures imposed on the respondents
- Each of the TPIM notices included the following measures, although the precise details to some extent differed:
a. ORM Compulsory relocation could be required of those who were subject to Control Orders pursuant to the Prevention of Terrorism Act 2005. That feature of Control Orders was particularly controversial and, in its original form, the TPIMA 2011, which abolished Control Orders – see TPIMA 2011 s.1, did not allow for such relocation as part of a TPIM. At that stage, a TPIM could include an ORM but only in the Respondent's own home or locality or by agreement. The Independent Reviewer of Terrorism Legislation, David Anderson QC, recommended in March 2014 that this should be changed. The Counter-Terrorism and Security Act 2015 ('CTSA 2015') then amended paragraph 1 of Schedule 1 of TPIMA 2011 to allow overnight curfews at premises no more than 200 miles from the Respondent's home. Combined with the Travel Measure in paragraph 2 of Schedule 1 of TPIMA 2011, compulsory relocation has effectively been re-introduced.
Another of the changes introduced by the CTSA 2015 was to add s.2(4) to TPIMA 2011. This required the SSHD to publish the factors which she considered to be appropriate to take into account when deciding whether to impose a travel measure as part of a TPIM.
The SSHD did so on 12th February 2015 – see HLWS259 and HCWS287 - when she said she would take into account the following factors:
- the need to prevent or restrict a TPIM subject's involvement in terrorism-related activity;
- the personal circumstances of the individual;
- proximity to travel links including public transport, airports, ports and international rail terminals;
- the availability of services and amenities, including access to employment, education, places of worship and medical facilities;
- proximity to prohibited associates;
- proximity to positive personal influences;
- location of UK resident family members;
The SSHD added, 'Decisions about whether to impose travel restrictions on a TPIM subject will be taken on a case-by-case basis and will reflect the need to minimise the risk that the individual poses to the public while taking into account the personal circumstances of the individual in question.'
An ORM was included in each of the TPIM notices for these Respondents. LG was required to move from Slough to Location A1 and, recently (in circumstances mentioned below) to Location A2. IM was required to move from an address in North West London to Location B1. In January 2017 the landlord of Location B1 recovered possession of the house which had been assigned to IM and thereafter IM was required to move to Location B2 which was still within the same town, although somewhat further from its centre. JM was required to move from an address in East London to Location C1. JM's wife was pregnant and in the immediate period prior to her expected date of delivery in March 2017, JM was moved to Location C2. This was in a different town to Location C1 and was chosen to increase the chance that he could be present at the birth of his child. In the event, he could not be with his wife when she gave birth to a daughter. After his wife had given birth JM was moved back to Location C1.
As I shall explain in more detail later, each Respondent has a family, including children. The accommodation arranged in Locations A, B1, B2 and C1 was of sufficient size for their families to move with them, if they wished. As it happens, with the exception of IM's eldest daughter, none of the family members has moved. This separation from their families is one of the features of their TPIMs which has caused each of the Respondents particular hardship.
b. Travel Measure: Each of the Respondents is prohibited from leaving Great Britain without the consent of the Home Office. They must surrender any travel document and not take any step to obtain a travel document. Each TPIM was accompanied by a map which set the boundary of the Respondent's permitted area, outside of which he is not allowed to go without the permission of the Home Office. The SSHD emphasises that the permitted area includes in each case most of a sizeable town or city and within which there are mosques, shopping areas, leisure and educational facilities.
c. Exclusion Measure: Each of the Respondents is prohibited (without the permission of the Home Office) from entering (in summary) premises offering internet access to customers, currency exchanges, travel agencies, shops selling computer or electronic communication equipment, ports, airports, railway stations or coach stations.
d. Movement Directions Measure: Each Respondent must comply with directions given by a police officer.
e. Financial Services Measure: Each Respondent may use only one nominated bank account. No other person may make withdrawals from that account. Evidence must be given to the Home Office of the closure of any other accounts. Details of any loan, credit or mortgage facility must be given to the Home Office (including any credit cards) and no new facilities can be started without the Home Office's permission. Without the Home Office's permission no more than £75 can be withdrawn in cash each week or more than £75 in cash be held at any one time.
f. Property Measure: Each Respondent must inform the Home Office of any land or building which he owns or in which he has an interest, or which he rents. He must tell the Home Office the details of any vehicle that he owns, and must provide the Home Office with the details of any vehicle acquired or driven. No more than £50 can be transferred within or outside the UK unless the Home Office has given permission.
g. Weapons and Explosives Measure: their possession is prohibited.
h. Electronic Communication Device Measure ('ECDM'): No ECD may be used or possessed by the Respondent or brought into his residence and the Respondent must not knowingly permit any other person to bring one into the residence without the permission of the Home Office. Each Respondent is permitted to have (a) one computer able to connect to the internet by a fixed line only, (b) one fixed phone line, (c) one mobile phone (which cannot connect to the internet) and which no one else is permitted to use. Visitors can bring in mobile phones and various other specified equipment, provided they are switched off and not used in the residence. Each Respondent must permit a police officer to come into the residence to check compliance. Details of the permitted computer and mobile phone must be given to the Home Office. Software can only be loaded onto the permitted computer with the permission of the Home Office. Before accessing any website for the first time, the permission of the Home Office must be obtained. The IP history of the permitted computer must be provided to the Home Office at regular intervals.
i. Association Measure: Each Respondent was given a list of persons with whom he was prohibited from associating or communicating. The Home Office can, and has, from time to time, varied the list. The details of other people with whom the Respondent meets must be given to the Home Office in advance, unless it is by chance. Specified exceptions are listed in the Notice. The exceptions include specified members of the Respondent's family and children under 10. There is a ban on communicating with anyone outside the UK without the permission of the Home Office. Additionally, each Respondent was barred from doing the following,
'lead prayers, give lectures, hand out leaflets, participate in any public discussion or broadcast discussion, publish any document or statement, attend any da'wah stall, or preach or provide religious instruction or advice (except to their children and, in the case of LG and JM, their wives) without the Home Office's permission'.
j. Work or Studies Measure: prior approval must be obtained from the Home Office for any employment, training or academic study course. Work or study in certain specified fields is prohibited.
k. Reporting Measure: The Respondent is required to report in person at a specified police station on days and at times which the Home Office require. Reporting by telephone can also be required. Each Respondent is required to report in person at a specified police station within a particular time frame on each of 5 days per week and to report by telephone to the monitoring company on each of the other two days.
l. Appointments Measure: the Respondent can be required to attend appointments with specified persons as directed by the Home Office and to comply with any associated reasonable direction. The power to include an Appointments Measure in a TPIM was added by CTSA 2015 s.19. The Home Office has made use of the power in these TPIMs to require each of the Respondents to meet with an 'Intervention Provider' ('IP'). The Home Office cannot require the Respondent actively to engage with the IP. LG appears to have embraced the meetings with his IP – Imam Shafi Chowdhury ('Imam Chowdhury') with enthusiasm. He has had numerous meetings with Imam Chowdhury since they first met on 17th August 2016. Some of the meetings have lasted several hours. LG has served a witness statement from Imam Chowdhury. IM and JM have also been required to, and have, met with IPs, although on a less frequent basis. I have seen reports from all of the IPs.
m. Monitoring Measure: Each Respondent was required to have an electronic tag fitted.
A TPIM comes into force when it is served on the individual. It lasts for a year in the first place. Thus the present TPIMs will expire on about 19th June 2017. The notice may be extended by the SSHD for one further year – see TPIMA 2011 s.5 and the SSHD has said that it is her intention to renew them. Two years, however, is the maximum for the life of a TPIM. Another TPIM could only be imposed if there was evidence of 'new' TRA since the original TPIM was issued.
The nature of the Court's task on the review
Ms McGahey submitted that, by the conclusion of the hearing, there was not a great deal between the parties as to this issue. Nonetheless, it is important that I should spell out what I see as my task.
The starting point has to be TPIMA 2011 s.9(1) which says that, on the review
'the function of the court is to review the decisions of the SSHD that the relevant conditions were met and continue to be met.'
and s.9(2) which says that
'In doing so, the court must apply the principles applicable to judicial review.'
Mr Hickman for LG argued that the position is not so straightforward. He refers me to the Court of Appeal's decision in SSHD v MB  QB 415. In that case, Sullivan J. had made a declaration of incompatibility regarding the power in the Prevention of Terrorism Act 2005 to make a non-derogating control order. He had found that the provisions in the 2005 Act were incompatible with Article 6 of the European Convention on Human Rights ('ECHR'). The Court of Appeal reversed his decision. It held that the system of judicial review to which a control order was subject had sufficient flexibility to provide whatever standard of review Article 6 required. There was, therefore, no incompatibility and the court could, if Article 6 required it, substitute its own decision for that of the SSHD – see . In those circumstances, the Court said, it was not strictly necessary to decide what standard of review Article 6 did require - see , but the matter had been argued and the Court did proceed to give its views on the issue. It said that there was a distinction between a finding of fact and a decision which turned on a question of policy or expediency. Where a finding of fact was involved, Article 6 might require the evaluation to be carried out by a judicial officer.
'So far as the latter was concerned, the role of the court may be no more than reviewing the fairness and legality of the administrator to whom Parliament has entrusted the decision.' – see .
At the time, a control order could only be made if the Secretary of State had 'reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity' – see Prevention of Terrorism Act 2005 s.2(1)(a). As to this, the Court said at ,
'Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism-related activity. Thus far we accept Mr Starmer [counsel for the respondent]'s submission as to the standard of review to be carried out by the court.'
When the TPIMA 2011 first replaced control orders with TPIMs, Condition A was that the SSHD should have 'reasonable grounds to believe' that the individual was or had been involved in TRA. That set a higher test for the SSHD, but it could not diminish the standard of review exercised by the Court. Mr Hickman argues that, consistently with MB¸ it was then for the Court itself to decide as an objective fact, whether there were reasonable grounds to believe that the individual was or had been involved in TRA.
The CTSA 2015 amended Condition A. It now provides, as I have quoted above, that the SSHD must be satisfied on the balance of probabilities that the person concerned is, or has been, involved in TRA. Mr Hickman submits, that this remains an issue of objective fact. Accordingly, he argues, in line with the decision of the Court of Appeal in MB, Article 6 requires me to decide whether that objective fact exists. In other words, he submits, I must decide for myself whether I agree that on the balance of probabilities each of the Respondents is or has been involved in TRA.
Ms McGahey draws my attention to the decision of Mitting J. in SSHD v EB  EWHC 1970 (Admin). This was one of the first reviews of a TPIM after the amendment to Condition A by the CTSA 2015. At  Mitting J. said,
'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 activity 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 SSHD  QB 1044.'
Mr Hickman observes, that Mitting J. did not address the dicta in MB on which he relies (although MB is cited in  of the same judgment). Mr Hickman also notes what Mitting J. said in ,
'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 in 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.'
Pragmatically, Ms McGahey submits that, while strictly speaking, I could disagree with the SSHD's conclusion as to Condition A, but nonetheless find that her conclusion was one to which she was entitled to come, she does not seek to rely on such an argument here. On that basis, I shall take the same course as Mitting J. and examine for myself whether, on the balance of probabilities, each of the Respondents is, or has been, involved in terrorism-related activity.
After the hearing in this case, Collins J. gave judgment in SSHD v EC and EG  EWHC 795 (Admin) which was a review under TPIMA 2011 s.9 of the TPIMs imposed on EC and EG. At  Collins J. commented that he was required to conduct a Wednesbury review of the SSHD's decisions. I was aware that this judgment was imminent and gave the parties an opportunity to make brief written submissions in relation to it. Mr Hickman and Mr Southey QC (who was leading counsel for JM) noted that Collins J. had not considered the passages in MB to which I have referred above. Significantly, he had also adopted the course favoured by Mitting J. Thus he expressed his conclusions that the SSHD was not only entitled to find Condition A satisfied in relation to EC and EG, but that she was right to do so. I propose to follow the same course as both Mitting J. and Collins J. in that I will also consider for myself whether Condition A is satisfied.
That said, it was not necessary for the SSHD, and it is not necessary for me, to make more specific findings of fact as to the precise nature of any terrorism-related activity in which a Respondent is or was involved. I accept the submissions of Ms McGahey to this effect.
Conditions C and D called for a different exercise by the SSHD. They required a judgment as to whether a TPIM was necessary for purposes connected with protecting the public from a risk of terrorism (Condition C) and a judgment as to whether the individual measures were necessary for purposes connected with preventing or restricting the individual's involvement in TRA (Condition D). These are not judgments of objective fact, but matters of judgment and assessment of the kind referred to in  of MB.
In his judgment on LG's s.16 appeal, Hickinbottom J. summarised the relevant legal principles which he applied at . Because of the nature of the proceedings before him [17(i)] requires adaptation and I will say more about that. However, the other principles are applicable and I gratefully adopt them. He said,
'(ii) The court must carefully scrutinise whether the particular measure challenged is "necessary" to protect members of the public from a risk of terrorism. To be "necessary", a measure must be more than merely useful, reasonable or desirable.
(iii) Where human rights are engaged (as will usually be the case), any adverse effect on those rights resulting from the measures must be proportionate to the public interest objective of protecting members of the public from the risk of terrorism: relocation will not be "necessary" unless it is a proportionate response to the security risk posed. The exercise to be performed by the court is therefore to address proportionality, and not simply rationality. Where a particular measure is in focus, the adverse impact of that measure has to be balanced against its marginal utility, taking into account the other measures in place.
(iv) The scrutiny must be "intense" i.e. clearly focused on the decision to impose the measure in the light of relevant material put before the court, in an exercise which has been described as being analogous to the setting and review of bail conditions. The material will include evidence related to the nature of the national security case and risk, the conduct of which the individual is suspected, and any infringement of the human rights and interests of the subject and others (such as his family members) including actual and potential harm resulting from that infringement.
(v) The burden is on the Secretary of State to demonstrate that the particular measure is necessary and proportionate.
(vi) However, since the Secretary of State has been assigned by Parliament to be the primary decision-maker in respect of the imposition of such measures - and, having relevant expertise, is generally better placed than the court to decide whether a measure is necessary to protect the public against the terrorist activities of an individual - the court will accord a degree of deference to the Secretary of State's assessment of the security risk posed and what is necessary appropriately to ameliorate that risk. The court's restraint is a reflection of the fact that the Secretary of State is making an evaluative and predictive judgment of risk, to which there is more than one legitimate response.
(vi) The court has to bear in mind that it has been provided with evidence which has been withheld from the individual and his legal team on the grounds of national security, and that the Special Advocate is necessarily inhibited from taking instructions on the material which he has seen.'
Because Hickinbottom J. was dealing with an appeal under TPIMA 2011 s.16, LG was not then able to question the national security case. Hickinbottom J. therefore had to consider the challenge to the relocation measure on the basis that the national security case should be taken at its highest. I recognise that, in this respect, I am in a different position. If I were to take a different view of the national security risk posed by a Respondent, that could, in principle, affect the assessment of the necessity test in Conditions C and D. A second difference is that Hickinbottom J. was concerned only with the particular measures which resulted in LG's relocation. He was not, therefore, required to consider Condition C – whether a TPIM at all was necessary. The importance of that latter distinction between our two roles is somewhat reduced, however, when it is appreciated (a) that, of all the individual measures, relocation has probably the greatest impact and (b) as Hickinbottom J. recognised in [17(i)] the particular measure which was the subject of LG's appeal had to be seen in the context of the package of other measures as well.
I would add to the principles set out by Hickinbottom J. that, in judging necessity and proportionality it is right to take account of the resources available to the SSHD and the demands on those resources – see SSHD v MB in the Court of Appeal at  and the decision of Ouseley J. in SSHD v AF  EWHC 651 (Admin) at . The SSHD's appeal was allowed by the House of Lords in MB and AF's appeal was dismissed but none of the speeches appear to have touched on this matter – see SSHD v MB  1 AC 440. Those decisions concerned control orders, but in SSHD v CC and CF  1 WLR 2171 Lloyd Jones LJ, sitting as a judge of the High Court, held that the same approach should be followed on a review of the necessity for a TPIM under TPIMA 2011 s.9 – see . His decision was subsequently reversed by the Court of Appeal, but on other grounds – see SSHD v Mohammed (formerly CC) and CF  1 WLR 4240.
In considering proportionality the Respondents reminded me of what Lord Sumption had said in Bank Mellat v HM Treasury (No.2)  2 AC 700 when he summarised the principles at  and said the question depended on an exacting analysis of the factual case advanced in defence of the measure in question to determine,
'(i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences a fair balance has been struck between the rights of the individual and the needs of the community. These four requirements are logically separate but in practice they inevitably overlap…Before us the only issue about them concerned (iii) since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the same objective. For my part, I agree with Maurice Kay LJ that this debate is sterile in the normal case where the effectiveness of the measure and the degree of interference are not absolute values but questions of degree, inversely related to each other. The question is whether a less intrusive measure could have been used without unacceptably compromising the objective.'
Mr Hickman referred me to the Government's Review of Counter-Terrorism and Security Powers: Review Findings and Recommendations (Cmd. 8004) which proposed the abolition of control orders, but, at the same time accepted the need for a substitute and said at  'there are very likely to be a small number of people in this country who are assessed to pose an immediate and significant terrorist threat but who we can neither prosecute nor deport'. He accepted, however, that this was not intended to be the only situation where a TPIM would be appropriate. It would, in any case, not be right to supplement the test which Parliament has adopted, albeit applied in the manner that I have already discussed.
I have noted above, the comments by the parties as to the significance of the nature and timing of involvement in TRA for the purposes of Conditions C and D. I have borne these in mind. However, since those two Conditions are concerned with the necessity (and proportionality) of either a TPIM in principle, the whole package of measures or the individual measures, they are not questions of objective fact and, as I have said they are not decisions as to which, even on the basis of the comments in the Court of Appeal in MB, I am required to come to my own conclusion. So far as they are concerned, the issue is whether the SSHD was entitled (on familiar public law principles) to come to the conclusions she did.
I have also noted above the emphasis which the Respondents placed on the different purposes of Condition C ('protecting the public from a risk of terrorism') and Condition D ('preventing or restricting the individual's involvement in terrorism-related activity'). It is right, as the Respondents observe, that TRA can include action taken for the benefit of a proscribed organisation - Terrorism Act 2000 s.1(5), while 'terrorism' for the purposes of the TPIMA 2011 does not include this. However, the significance of this distinction is considerably diminished by the potential overlap between actions taken for the benefit of a proscribed organisation and the other activities in s.1(1)-(4) of Terrorism Act 2000 which do amount to terrorism for the purposes of TPIMA 2011. Furthermore, to satisfy Condition C it is not necessary that the terrorism from which the TPIM is intended to protect the public is terrorism by that same individual. Thus, in principle, Condition C may be satisfied if the TPIM is necessary to protect the public from a risk of terrorism by some third party. Of course, whether it is so necessary (and proportionate) will have to be considered against the facts of the individual case.
Evidence by the Respondents
Each of the Respondents has filed witness statements made by him in opposition to the SSHD's case. None of the Respondents was called to give oral evidence. There was some debate during the hearing as to the consequence of this omission. In the end, though, little dispute remained. I summarise my understanding of the position as follows:
a. The SSHD accepted that the witness statements were admissible evidence even though the Respondents were not called. I agree. I note that TPIMA 2011 Schedule 4 paragraph 2(a) allows rules of court to be made about evidence in TPIM proceedings. CPR r.80.22(2)(b) allows for evidence to be given in writing and, by r.80.22(4) the court may receive evidence that would not, but for that rule, be admissible in a court of law.
b. Mr Hickman for LG, Mr Friedman QC for IM and Mr Southey for JM accepted that the omission to call their clients to give oral evidence could affect the weight that I gave to their evidence. I agree.
c. Ms McGahey accepted that the omission to give oral evidence could not positively assist the SSHD's case. It could, though, substantially affect the weight to be given to those parts of the Respondents' evidence which advanced a positive case. Mr Southey argued that this could not be so since (as I understand his argument) the SSHD had not advanced a positive case in response to JM's case. That, with respect, is not correct. The SSHD's positive case is that the necessary conditions for a TPIM were and continue to be met. There is no need for her to go further and advance a positive case in response to JM's defence. I accept Ms McGahey's submission as I have summarised it.
d. Mr Southey also argued that it was material that JM was subject to care proceedings in the family court. I cannot see how this has any bearing on the weight which I should give to his statements made for the present proceedings and which have been untested in oral evidence.
e. Had a Respondent been called to give evidence, he would have been entitled to rely on the privilege against self-incrimination if his answer to any question might have tended to incriminate him. LG is being prosecuted for breach of his TPIM. While it is unlikely that he would have been asked questions that bore on this matter, it is theoretically possible and, if that had occurred, he would have had the right not to answer such a question if the answer would have tended to incriminate him. As I have said, prior to the initiation of TPIM proceedings, the SSHD complied with her duty to consult with relevant police forces as to whether there was a realistic possibility of the Respondents being charged with terrorist offences. She was told that there was not. That is a matter which has to be kept under review. The possibility of future terrorist criminal proceedings could not therefore necessarily be characterised as fanciful and, if a question was asked in cross examination which might have tended to incriminate the witness in any such proceedings, the witness again could properly have refused to answer. However, I agree with Ms McGahey that these possibilities could have been addressed on a question by question basis. They do not explain or excuse an omission to give oral evidence at all.
f. In SSHD v AF  EWHC 651 (Admin) Ouseley J addressed the significance to be attached to the failure of a respondent to a control order to give oral evidence. He was significantly influenced by the limited character of what AF had been told about the case against him. As Ouseley J. said at  'the essence of the case is in the closed material'. It was only after this decision that the House of Lords in SSHD v AF (No.3)  2 AC 269 held that a respondent to a control order (and likewise, now, to a TPIM) was entitled by Article 6 ECHR to be told far more about the case against him. Following the House of Lords decision, Collins J held a review hearing into a TPIM imposed on BM. BM, like the respondents in the present case, had put in witness statements, but had chosen not to give oral evidence. In his judgment SSHD v BM  1 WLR 2734, Collins J. said of this at ,
'His failure to give [oral] evidence cannot be used against him to strengthen the Secretary of State'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.'
Collins J. added at ,
'It does not shift the burden to BM to show that an allegation is not to be relied on but reflects the reality that an adverse view has been formed by the Secretary of State based on all the material available to her and BM has the opportunity to explain if he can why that view is not appropriate. A failure to take steps reasonably open to him to deal with any of the allegations can therefore mean that an adverse view will be maintained.'
In SSHD v CF  1 WLR 2171 Lloyd Jones LJ quoted these passages and said at  'I consider this approach is correct and fair.'
g. I respectfully agree with these views. I do not accept the submission of the Respondents who argued that they place an unfair burden on the Respondents or allow the court to proceed in a way which is impermissible in the absence of express statutory authorisation.
The Relevance of past convictions and decisions not to prosecute.
As I shall explain, JM has previous convictions for soliciting murder and fundraising for terrorism. In his opening skeleton argument Mr Southey submitted that these matters could not constitute involvement in TRA for the purposes of Condition A because that would amount to an abuse of process. Ms McGahey said that, while his previous convictions were an inevitable part of the background, they were not in themselves relied upon as part of the SSHD's national security case. In those circumstances, it is unnecessary for me to decide whether, if it had been otherwise, there would have been an abuse of process. It is sufficient for me to set down a marker that I am not to be taken as necessarily agreeing with Mr Southey's proposition. However, as Ms McGahey recognised, even if such a previous conviction could satisfy Condition A, a TPIM could only be validly imposed if the other Conditions were also satisfied.
These aside, none of the Respondents has relevant convictions and none has been prosecuted under the terrorism legislation. At times in their submissions, it was suggested that I should infer from this that the activities in which they had openly engaged (and in particular distributing or transmitting videos or other social media) could not be regarded as criminal, unlawful or as TRA. Were it otherwise, they submitted, they would and should have been prosecuted under the criminal law.
I do not accept this reasoning. The opportunity for a closed material procedure, the different standard of proof and the different rules as to admissibility of evidence, all mark out these TPIM proceedings as distinct from prosecution in the criminal courts. Section 10 imposes a duty on the SSHD to consult with the police before issuing a TPIM notice. However, as the House of Lords said of the equivalent requirement in the control order regime, the duty to consult does not mean that compliance with the duty is a necessary further condition before the administrative measure can be taken, still less that is it a condition that there should be no realistic prospect of a successful prosecution – see SSHD v E  1 AC 499 at -. In those circumstances, I agree with Ms McGahey that I cannot infer from the absence of a prosecution that any of the actions alleged against the Respondents must be assumed to be non-criminal or even lawful.
Whether these three TPIMs are unlawful because they were intended to achieve an improper purpose?
One argument advanced by all of the Respondents is that one purpose of imposing the TPIMs (and the relocation obligations in particular) was to deter other individuals from taking over their roles as senior figures within ALM and thereby further weakening the organisation. This, it is argued, was an improper purpose which infects the legality of the TPIMs and they should be quashed in consequence.
In the 1st national security statement on ALM, the strategy is explained. It is said that the use of TPIMs against senior leadership figures within ALM would
'- disrupt the individuals' engagement in terrorism related activity;
- disrupt the national leadership of ALM and, in turn, the group as a whole;
The statement then expands on each of these. Under the heading 'Long term disruption of ALM as a whole' it is said,
- degrade the "brand" of ALM to ensure the disruption is long term.'
'71. We judge the concurrent service of the TPIMs and relocation of the individuals will have an even greater effect on ALM than the previous bail restrictions. Aside from the dismantled leadership, we also assess that the TPIM action will send a strong message to the other members of ALM. We assess that the TPIMs may create an unwillingness to step up into senior leadership roles amongst the majority of the remaining ALM members, due to the knowledge of the disruptive actions that have taken place. The Security Service will continue to work to disrupt remaining ALM members, where possible, to further reduce ALM's ability to function.
Degradation of ALM as a "brand"
72. ALM has been a proscribed organisation since 2004. While disruptions against individual members have been successful, we have been unable to secure a significant and lasting disruption of the group as a whole, which we assess has led ALM members and others in the communities in which they live to believe that ALM is indestructible. We assess that disruption, through the use of terrorism related legislation, of individuals currently assessed to be senior leaders of ALM will send a strong message to those affiliated with the group that the group's activities will not be tolerated…
75. In the medium to long term, we assess that the combination of TPIMs, bail conditions and incarceration of the senior leadership will have a significant impact on the ALM brand in the following ways:
- Disruption will show that ALM members are not able to operate outside the law unchallenged, thus tarnishing the group's status;
- Those tempted to join or rise up the ranks of ALM may be dissuaded by the consequences, and deterred from doing so;
- Relocation, in particular, is likely to reduce the "badge of honour" impact. The subjects will no longer have a visible presence amongst the large concentration of extremist associates….'
These comments are echoed in the national security statements for the individual Respondents. Thus, for instance the 1st national security statement for LG said,
'71. Furthermore, we assess that removal of the senior leadership figures from London and Slough will degrade the image of power that ALM currently holds. We assess that they, and the local communities in which they live, have come to see ALM as an indestructible group. We assess that, by placing the senior leaders on TPIMs and relocating them away from their home addresses, we are eroding this image and, in turn, the appeal the group holds.
Near identical wording was included in the corresponding sections of the 1st national security statements for IM and JM.
72. The Security Service assesses that this will have the further impact of acting as a warning to other ALM members not to continue to engage in their extremist activities or take on senior leadership role within the group. We assess that the combination of the TPIM notices, as well as the prosecution of Rahman [Mizanur], Choudary [Anjem] and Brookes, will send a strong message that the activities of the ALM leadership, and therefore ALM in general, will not be tolerated by the authorities. We assess that, as a result, individuals will be less likely to engage with ALM, due to the fear of repercussions.'
The Respondents argue that the purpose of TPIMs, like that of control orders before them, is to prevent the individual concerned from being involved in terrorism in the future. They recall that under TPIMA 2011 s.3(4) and Condition D an individual measure must be necessary 'for purposes connected with preventing or restricting the individual's involvement in terrorist related activity'. Thus, they submit, a purpose of imposing relocation in order to deter others from terrorism related activity would be, and is, ultra vires.
Furthermore, it is argued, general deterrence of the kind reflected in the Security Service statements is not one of the factors which the SSHD has listed in her published statements in accordance with TPIMA 2011 s.2(4) (see above).
The Respondents also submit that, if the purpose of a TPIM was to extend to deterrence of others, then they would be taking on the character and function of criminal offences. This would then attract the more demanding procedural protections accorded to the determination of criminal charges in Article 6 of the ECHR. In the House of Lords in SSHD v MB  1 AC 440 the SSHD accepted that the civil limb of Article 6 of the ECHR applied to control order proceedings. However, it was argued that the additional procedural guarantees in Article 6 for criminal trials were not engaged because control order proceedings did not involve the determination of a criminal charge. The House of Lords accepted the SSHD's argument. As Lord Bingham said at ,
Lord Hoffman agreed and said,
'I would on balance accept the Secretary of State's submission that non-derogating control order proceedings do not involve the determination of a criminal charge. Parliament has gone to some lengths to avoid a procedure which crosses the criminal boundary: there is no assertion of criminal conduct, only a foundation of suspicion; no identification of any specific criminal offence is provided for; the order made is preventative in purpose, not punitive or retributive; and the obligations imposed must be no more restrictive than are judged necessary to achieve the preventative purpose of the order.'
He recognised that the meaning of 'criminal charge' was an autonomous concept. However, he added at 
' I also agree with my noble and learned friend that a review of a control order is not the determination of a criminal charge. As a matter of English law, this is beyond doubt. MB and AF are not charged with having committed any breach of the law, let alone a terrorist act. The order is made on the basis of suspicion about what they may do in the future and not upon a determination of what they have done in the past. And the restrictions imposed by the order are for the purpose of prevention and not punishment.'
An argument on these lines was made to Hickinbottom J. in the course of the s.16 appeal. He rejected it at  by saying,
'the Strasbourg jurisprudence recognises the distinction between determination and punishment of past guilt and prevention of future suspected wrongdoing'.
The Respondents submit that Hickinbottom J. was wrong in his conclusion. Mr Hickman notes that MB in the House of Lords was not cited to the Judge. Although that case concerned control orders, it is clear that TPIMs were intended to serve the same preventative, not deterrent, purposes. Nor, Mr Hickman says, was Hickinbottom J. referred to the SSHD's policy with which a deterrent purpose would be inconsistent. Furthermore, in his oral evidence in the present case, Mr Daly conceded that a deterrence purpose would be improper, although it might be a welcome by-product. The Security Service statements showed that deterring others from stepping up to the mark and taking on leadership roles was not just a by-product, but a central purpose of the TPIMs in general and the relocation measures in particular.
'Mr Hickman submitted that, because Condition D in s.3(4) of the TPIM Act …defines the purposes for which TPIM can be imposed in terms of "preventing or restricting the individual's involvement in terrorism related activity" (emphasis added), it was impermissible to impose a TPIM measure on an individual as a means of deterring other people from engaging in such activity. However, with respect, I regard that as somewhat simplistic. Where, as here, the subject of TPIM is a terrorist group leader, then that individual's leadership is a terrorism-related activity which a TPIM can properly address. I do not consider it is impermissible for one (of several) purposes of the TPIM to be to disrupt his leadership and thus the organisation of which he is a leader, by imposing a TPIM on him, with the aspiration or even intention of persuading others that the organisation is not viable and thereby dissuading them from becoming involved in its activities including its leadership. The submission is based upon an unnecessarily narrow interpretation of Condition D which, given its purpose, is unambiguously wider in its scope.'
The Respondents argue that I should find that deterrence was part of the reason for imposing the relocation measures. It would be for the SSHD, not the court, to decide whether, absent the improper purpose, relocation would still have been included – see SSHD v AT and AW  EWHC 512 (Admin) at - and accordingly, I should quash that measure in each of the TPIMs.
In response, Ms McGahey argues that the three broad objectives set out in the first ALM statement represent permissible purposes for a TPIM measure. She accepts that I have heard evidence that was not before Hickinbottom J., but she nonetheless adopts his argument that the degradation of ALM will also reduce the risk of the Respondents' own engagement in TRA. She accepts that it would be unjustifiable to impose a TPIM on person A in order to dissuade person B from engaging in TRA where there was no link between A's engagement in TRA and B's engagement in TRA, but that does not reflect the present cases. In these cases, she argues, disrupting the individual and disrupting the organisation are two sides of the same coin.
While I have heard oral evidence that Hickinbottom J. did not and while more arguments may have been deployed by the Respondents on this occasion, I nonetheless come to the same conclusion as he did. I agree with Ms McGahey that it would not be permissible to impose a TPIM pour encourager les autres where there is no connection between the risk of the individual respondent's engagement with TRA and the engagement of les autres in TRA. As I understood it, the evidence of Mr Daly (which had been given in Closed, but was made Open) was to the same effect i.e. that the individual measures had to be justified for the particular subject of the TPIM. The general deterrent effect on other members of ALM from 'stepping up the mark' would not be sufficient taken on its own. But, I agree with Ms McGahey as well that this model does not represent the facts of any of the present cases. Here the risk of the Respondents engaging in TRA in the future is, in part at least, connected with the continued existence of ALM. If the organisation withers, that will have a bearing on the risk that the individual Respondents will engage in TRA in the future. I have referred to 'TRA' but exactly the same points can be made if, for the purpose of Condition C, the focus is on 'terrorism' as defined in the TPIMA 2011.
Nor do I believe that acceptance of Ms McGahey's argument means that TPIMs have become criminal measures. In MB Lord Bingham at  recognised that there was no watertight distinction between prevention and punishment: prevention is one of the aims of punishment and the effect of a preventative measure may be described as severe or even 'penal'. I would add, on the same lines, that a preventative measure may have a harsh and thereby a deterrent effect. As in many other contexts, drawing a line between a preventative measure on the one hand and an instrument of the criminal law on the other can be difficult, but I am not persuaded that the collection of objectives in the ALM and national security statements for the individual Respondents crosses the line into impermissible territory.
Ms McGahey argued that the SSHD's published policy was irrelevant because it concerned the travel restriction measure (see TPIMA 2011 Schedule 1 paragraph 2) rather than the ORM (TPIMA 2011 Schedule 1 paragraph 1). I think she is right. Certainly, the whole focus of the policy relates to limitations on travel. But even if, as the Respondents argue and I accept, that it is the combination of the travel restriction measure and the ORM which constitutes mandatory relocation, Ms McGahey had an alternative argument, namely that the objectives set out in the national security statements were compatible with the published policy. The first of the factors which the SSHD said she would take into account was 'the need to prevent or restrict a TPIM subject's involvement in terrorism-related activity.' At the end of the list of bullet points, the SSHD had also added that she would take into account 'the need to minimise the risk that the individual posed to the public.' I agree with Ms McGahey. It follows that I do not accept the Respondents' submission that the TPIMs or the ORM were imposed for an improper purpose.
The significance to be accorded to the interests of the Respondents' children
Each of the Respondents has children. To varying degrees they have been adversely affected by their fathers' TPIMs. To what extent should that affect my decision as to whether the father's TPIM was necessary and proportionate and the relocation measures in particular were necessary and proportionate? I will look at the individual circumstances of each Respondent and his children in due course, but it is helpful at this stage to consider the common applicable principles. While these were much debated in the course of the hearing, there was not in the end substantial difference between the parties.
The UK is party to the United Nations Convention on the Rights of the Child ('UNCRC'). Article 3.1 of UNCRC says,
In some contexts, this obligation in international law has been matched by domestic legislation – see for instance Children Act 1989 s.1, Children Act 2004 s.11 and Borders, Citizenship and Immigration Act 2009 s.55.
'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative, authorities or legislative bodies, the best interests of the child shall be a primary consideration.'
The SSHD says that there has been no provision of domestic law incorporating the UNCRC to the TPIM or control order context. Certainly, the Respondents have not directed my attention to any such authority. But, the value of this observation is limited. Firstly, on the international plane Article 3.1 appears to be general in its character. More particularly, the European Court of Human Rights has recognised that the ECHR has to be interpreted in harmony with the general principles of international law – see Neulinger v Switzerland (2010) 28 BHRC 706 at  and so the UNCRC has a pervasive influence through the medium of Article 8 of the ECHR - see ZH (Tanzania) v SSHD  2 AC 166 at - and H(H) v Deputy Prosecutor of the Italian Republic  1 AC 338 at . In R v Petherick  1 WLR 1102 the Court of Appeal Criminal Division considered that it was unnecessary to decide whether Article 3.1 of UNCRC applied to sentencing decisions, because they were undoubtedly subject to Article 8 and the balancing which it required – see .
These authorities have also considered how the best interests of children should be taken into account. The learning was summed up by Laws LJ in SS (Nigeria) v SSHD  1 WLR 998 where he said at -,
' I will next describe the two characteristics, one positive, the other negative, which the learning shows apply in article 8 cases involving children. The first is that the interests of the child or children are a primary consideration. The second (which applies in all removal cases, whether or not there are children) is that there is no rule of "exceptionality", that is, there is no class of case where the law stipulates that an exceptional article 8 case must be shown in some situations but need not be in others.
 These two characteristics are vouchsafed by authority of the House of Lords and the Supreme Court. With great respect they are capable, if not carefully understood, of investing child cases with a uniform prevailing force which yields no or little space for the context in hand. As for the first characteristic, the key phrase is of course "a primary consideration". It appears in ZH (Tanzania)  2 AC 166 and subsequently, but is taken from article 3.1 of the UNCRC, so the choice of words may be regarded as having particular significance. What sense is to be given to the adjective "primary"? We know that it does not mean "paramount" - other considerations may ultimately prevail. And the child's interests are not "the" but only "a" primary consideration – indicating that there may be other such considerations which, presumably, may count for as much. Thus the term "primary" seems problematic. In the course of argument Mr Auburn [counsel for the SSHD] accepted that "a primary consideration" should be taken to mean a consideration of substantial importance. I think that is right.'
I did not understand any of the Respondents to take issue with Laws LJ's comments with which I respectfully agree. In any event, they are binding on me.
The SSHD also draws attention to the comments of Lord Mance in H(H) at  that no particular order for considering the competing considerations is prescribed – see, too, the views of Lady Hale at , Lord Judge CJ at  and Lord Wilson at . At  Lord Kerr took a different view, although it seems to me that the balance was in favour of the non-prescriptive approach of Lord Mance. As it happens, in the subsequent, and now leading authority on Article 8 in the extradition context, Celinski v Poland  1 WLR 551 at , Lord Thomas CJ speaking for the Divisional Court said that they hoped that District Judges would draw up a balance sheet and list the factors favouring extradition and then those factors (often including the adverse impact of extradition on children) which militated against extradition.
LG is a dual British and Pakistani national. He was born in the UK and is now 39. Until September 2015 he lived in West London. He then moved to Slough. He sometimes uses the kunya, or pseudonym, [redacted]. He is married and has four children: daughters aged 13, 12 and 8 and a son aged 4. The children are in school or pre-school in Slough and have remained there with their mother. At the time the TPIM notice was served he was receiving Job Seeker's Allowance and had occasional work as a bus driver.
In her open case the SSHD, as I have said, relies on the three statements regarding ALM (ALM1, ALM2, and ALM3) and statements specific to LG (LG1 dated 8th June 2016 and LG2, dated 6th March 2017). I also had the statements which had been prepared for the section 16 appeal. The SSHD called JB to give oral evidence. He has been a member of the Security Service since 2012. Since 2015 he has specialised in ALM. He confirmed the truth of the ALM statements and the specific national security statements for LG, IM and JM. He gave oral evidence in Open and in Closed. He was able to speak with authority based on his own personal experience and the accumulated experience of the Security Service. He backed up his assessments and opinions with examples. I found his evidence to be honest, credible and reliable.
There are also three statements specific to LG from Paul Daly, the Head of the Passport Seizure and TPIM Team within the Home Office. Mr Daly's statements concerning LG are dated 8th June 2016, 7th March 2017 and 20th March 2017. Additionally, Mr Daly made statements dated 29th September 2016 and 19th October 2016 for the variation TPIMA 2011 s.16 appeal. Mr Daly also gave oral evidence in Open and Closed sessions. He, too, had considerable experience of dealing with TPIMs. As with JB, I found his evidence to be honest, credible and reliable.
LG relies on statements which he has made for this review hearing and also statements from him and his wife [redacted] which were adduced for the s.16 appeal, statements he made to the police in response to allegations of breaches of his TPIM, and a report from Dr Deeley, a consultant psychiatrist. The dates of LG's statements are: 13th September 2016 (police statement), 20th September 2016, 30th September 2016, 6th October 2016, 4th November 2016, 15th February 2017, 17th March 2017 and 23rd March 2017. His wife's statements are dated 27th September 2016 and 16th January 2017. Dr Deeley's report is dated 8th October 2016. LG also relies on the reports of Imam Chowdhury, the Intervention Provider with whom he was required to meet and a statement which Imam Chowdhury made on 20th March 2017 for the purpose of this review in support of LG.
LG: The SSHD's national security case
The SSHD's national security case is important, in the first place, in support of her case that Condition A was (and continues to be) fulfilled, namely that she was (and is) entitled to be satisfied on the balance of probabilities that LG is or has been involved in TRA. The national security case is also highly material to Condition C (in effect, that a TPIM is necessary) and Condition D (that each of the individual measures is necessary).
In summary, the SSHD alleges that (i) LG is a member and senior leader of ALM; (ii) he encourages and (through radicalisation) facilitates the travel of others to join ISIL in ISIL controlled territory; and (iii) engages in conduct amounting to radicalisation. The SSHD emphasises that her national security case against LG (and indeed, as will be seen, her case against IM and JM) is grouped in this way for convenience, but that should not detract from her case that the evidence has to be considered as a whole for the purposes of determining whether each of the Conditions has been satisfied. The SSHD's case is that LG has been involved in TRA as defined in s.4(1)(b) and (c) of TPIMA 2011.
LG: member and senior leadership figure in ALM
It is the SSHD's case that, in the summer of 2014, LG became the leader of the West London group of ALM.
As I have said, LG was one of those who were arrested in [redacted]. He was arrested on suspicion of three offences: (a) being a member of a proscribed organisation contrary to TA 2000 s.11; (b) supporting a proscribed organisation contrary to TA 2000 s.12; (c) encouraging terrorism contrary to TA 2000 s.1. He was released on bail subject to stringent conditions. He was informed in September 2015 that he was not to be charged and no further action would be taken in respect of the matters for which he had been arrested in [redacted].
The SSHD accepts that the imposition of bail conditions impacted on LG's ability to play a role in ALM, as, since June 2016, have the TPIM measures. It is her case that ALM has no formal or rigid leadership structure. Nonetheless, it is her case that LG continues to fill a senior and leading role.
She accepts that there have been disagreements between LG and some members of ALM. But, she argues, that is because, in some part LG's views were even more extreme than those of ALM. Despite these disagreements, it is her case that LG continues to fill a leading and senior role within ALM. She does not accept his case that his attendance at ALM events was just, or primarily, to socialise.
LG: Encouraging and (through radicalisation) facilitating the travel of others to join ISIL
The SSHD's case is that LG himself wished to travel to ISIL territory. His passport was cancelled in April 2014.
Her case is that he had advance knowledge of the travel plans of three individuals who, in January 2014, tried to travel to Syria: Luqman Abdullah Hersi Warsame ('Warsame'), Nadir Ali Syed ('Nadir') and Yousaf Syed ('Yousaf'). Nadir was prevented from travelling because of bail conditions at the time. Yousaf was persuaded by his parents to come back from Turkey. Warsame succeeded in reaching Syria. He died fighting for ISIL in November 2014.
The SSHD also assesses that LG remained in contact with some of those who have travelled to ISIL's territory and passed messages to senior ALM members in the UK. The SSHD gives the examples of Abu Rahin Aziz ('Aziz'), a British national who also fought for ISIL and who was killed in Syria in July 2015. The day after his death, LG re-tweeted a message from Aziz and indicated that he saw Aziz as a martyr. LG and another British national who died fighting for ISIL, Junaid Hussain, ('Junaid') were mutual followers on Twitter and able to exchange private messages. LG sent to Mizanur via the messaging service, WhatsApp, four audio clips from another ISIL fighter, Omar Ali Hussain ('Hussain') which encouraged hijrah (in effect, travel to ISIL controlled territory) by British Muslims.
In January 2016 LG is said to have been in contact with a woman called [redacted] ['T'] and told her that,
'I support the call for sharia and I believe that Khilafah [i.e. the Caliphate] had been established and if I had a passport I would try and get there'.
He said to her that he supported ISIS and he would wish to live there.
LG: Conduct amounting to radicalisation
LG is said to have been instrumental in the radicalisation of some young British Muslims. One of them was a 15 year old boy [redacted] who was sentenced to detention for life with a minimum term of 5 years. LG was re-arrested on 23rd April 2015 in consequence of this incident though in June 2015 he was told that no charges would be brought against him in relation to this matter. On 23rd February 2015 LG told the boy that it was not permissible to kill a madkhali [a strand of Islamist thought, notable for its support for secular forms of government] 'unless you consider them kuffar [i.e. an unbeliever]'. On the same day, LG identified a particular individual as kuffar, saying, 'yes he is mushrik [someone who commits the unpardonable sin of believing in polytheism], he works with the police.' In March 2015 LG sent the boy a video in which there was reference to kafir [unbeliever] bombing a hospital and killing babies. The boy replied 'Qisas [revenge] is near.' LG sent the boy further videos. The case against the boy was that he committed his offence in March 2015.
After LG's arrest in April 2015, [redacted], a young British Muslim, posted a YouTube video in support of LG and calling on people to take action if LG was not released from police custody. The SSHD's case is that [redacted] was significantly influenced by LG. [redacted] was later convicted of offences under terrorism legislation and sentenced to 5 years' imprisonment.
Nadir, whom I have already mentioned, was alleged to have close links with LG. In November 2014 Nadir together with others purchased a knife and a knife sharpener. The same evening Nadir was arrested for an offence under TA 2006 s.5 for planning an attack similar to that on Lee Rigby. Nadir was convicted of this offence on 15th December 2015. One of the others with whom Nadir was arrested was Yousaf. He, too, was charged with an offence under TA 2006 s.5. He was tried at the same time as Nadir. The jury was unable to reach a verdict in his case. He was retried in May 2016 and acquitted. Both Nadir and Yousaf listed LG's phone number as one they wished to call from prison. LG visited Nadir in prison in January 2015.
A Canadian extremist, Fahad Shaik, admitted to watching LG's online videos. LG met Fahad Shaik when he transited through the UK in May 2015. On that occasion Fahad Shaik was stopped and interviewed. He said he had been attracted to LG's style of preaching. An examination of Shaik's phone showed about 20 photos of dead fighters and combatants carrying ISIL flags. The SSHD takes LG's impact on Shaik as illustrative of the reach of LG's radicalisation beyond the UK.
In [redacted] Channel 4 broadcast a documentary entitled [redacted] ['documentary 1'] LG was referred to in the programme [redacted].
More generally, the SSHD relies on LG's prolific use of on-line videos which has given him a considerable public profile. On [redacted] Channel 4 broadcast a documentary called [redacted] ['documentary 2'] which featured extensive interviews with LG. In the course of these, LG said, [redacted]
I have said above that the SSHD's case is that LG was involved in TRA as defined in TPIMA 2011 s.4(1)(b) and (c). She does not rely on s.4(1)(a). It is to be inferred from this that she is not alleging that LG's TRA took the form of the commission, preparation or instigation of acts of terrorism. The same applies to her case against IM and her case against JM.
LG's response to the SSHD's national security case
LG does not dispute that he has had some involvement with ALM in the past. He does dispute its extent.
LG says that, whatever may have been the position in the past, he is no longer a member of ALM or a senior leader of the organisation. Since 2015 he has had ideological differences with ALM. His views on takfir (excommunication) are at odds with those of ISIL. Indeed ISIL has murdered clerics in the territory it controls who subscribe to the same takfirist views as he does. As a result, he says, ALM regards him as deviant. He has, he says, no influence on the organisation. He does continue to meet with some of the individuals, but this is for social purposes and sometimes to express his views which ALM still regard as antithetical. In his statement of 15th February 2017 he gives an example of a conference which he attended in Edmonton, just before his TPIM notice was served in June 2016. This occurred during Ramadan and LG says he went because he knew there would be food at the end of a day of fasting. When he arrived he sat at the back of the room.
LG draws attention to a Facebook posting [redacted] who said of LG that he 'has no formal sitting in any study circle of any sheikh or his student to know what is right or wrong of Takfeer.'
LG says that he does not believe that ISIL has established a legitimate Caliphate. He says that this has been his position from at least the time the TPIM was imposed. He says he would not encourage anyone to travel to ISIL territory. He accepts that he had been open about his views on social media since around October 2014, but he believes that nothing he has published has broken the law. He says that whatever impression may have been created by [documentary 2] he would not now wish to go to Syria. He said that T was one of several women who contacted him as a result of his publications. She wanted a romantic relationship which LG says was not his wish. He made the remarks he did in an effort to put her off. They did not represent his true views.
LG spoke positively of his 15 meetings with the Intervention Provider, Imam Chowdhury.
In his statement Imam Chowdhury says that he has worked as a prison chaplain since 2008. He has worked as an Intervention Provider for the Home Office for 6 -7 years and has been engaged on this and one other TPIM case. The purpose of his work with LG has been to minimise ideological risks through dialogue and by exploring the religious basis for extremist views.
He reports a positive experience of his work with LG who, he says, wished to engage very soon. LG's main theological view was takfirist i.e. that others who did not subscribe to the same strict and literal views were not true Muslims and ought to be excommunicated. Imam Chowdhury reports that when they first met LG considered that any Muslim who took part in the democratic process was an unbeliever and those who sought redress through the British court system were apostate. LG had believed that ISIL were insufficiently extreme or pure in their approach to secular authorities.
In Imam Chowdhury's view LG has made significant progress towards becoming integrated into a more mainstream understanding of his faith. He thinks that shift in LG's attitude is believable, although incomplete. He has expressed regret for some of the videos he produced. The TPIM has given LG distance from his previous associates and allowed him space to reflect on his previous views. In Imam Chowdhury's view, continuation of the TPIM is not necessary to allow this progress to continue. As a sign of LG's progress, Imam Chowdhury notes that LG had referred him to a woman who had been depressed and whom LG thought would benefit from a more moderate environment.
Imam Chowdhury based his views on his conversations with LG. He had not had access to any of the Closed material and he was not sure that he had even seen all of the open material.
LG: Condition A: Was the SSHD entitled / right to be satisfied on the balance of probabilities that LG is or has been involved in TRA and to continue to take that view?
As I have noted, the essence of LG's response to the national security case is that, whatever may have been the position in the past, he is not now a member of ALM, there is not now a risk of him engaging in TRA or terrorism. These matters will be relevant and important in relation to my review of the SSHD's decisions in relation to Conditions C and D. As I have already explained, for the purposes of Condition A, the SSHD had to decide whether, on the balance of probabilities, she was satisfied that LG is or has been involved in TRA. In her closing submissions, the SSHD submitted that LG had not disputed that he had at least (at some time in 2014) been the leader of ALM in West London. He has not challenged the evidence that he had (again, at least, in the past) been involved in radicalising activities by making videos, nor his communications with the 15 year old boy. In [documentary 2] he [redacted]. On the basis of all of the open evidence the SSHD was clearly entitled and right to conclude that Condition A was satisfied as far as LG was concerned. That conclusion is fortified by the Closed evidence.
Condition C: Was the SSHD entitled reasonably to consider that it was necessary for purposes connected with protecting the public from a risk of terrorism to impose a TPIM on LG and is she still reasonably entitled to decide that a TPIM continues to be necessary for such a purpose?
I have said that the second question under Condition C is whether the TPIM continues (in the present tense) to be necessary. That was the question at the time of the hearing and it was still the question up to the point that the TPIM was revoked. It is likely (although I did not receive submissions on the subject) that, following the revocation of LG's TPIM on 10th June 2017, the question became whether the TPIM continued to be necessary up to the date of revocation. However, it has not been suggested that anything turns on this refinement and, for convenience, I shall still use the present tense. Exactly the same points can be made in connection with my review of Condition D in LG's case.
As I have already said, undoubtedly the measure which has caused each of the Respondents the greatest anxiety and hardship has been the ORM which, coupled with the travel restriction measure, constitutes mandatory relocation. It seems to me, though, that those measures ought properly to be reviewed in the context of Condition D and, having reviewed the measures individually, I will return to consider whether the SSHD was entitled to decide that the overall package was necessary and proportionate.
Setting aside for the present, therefore, LG's objections to relocation and the other individual measures, the essence of his case on Condition C is that a TPIM is not necessary for the purpose of protecting the public from terrorism because his views have changed. Moreover, his links with ALM are no more than historic. He is no longer a leader of the group. Such contact as he has with others whom the SSHD regards as still members of ALM are for social, or other non-terrorist purposes.
In a gist of part of the Closed evidence provided in open after the hearing, it was said that the SSHD accepted that there had been 'fluctuation in [LG's] relationship with ALM'. In his submissions dated 15th May 2017 Mr Hickman argued that this rendered the SSHD's assertion that LG was a senior leadership figure in ALM 'infirm'. However, the SSHD does not accept that LG's association with ALM is just historical. She points to the evidence that he attended an ALM event on 11th June 2016, just before the TPIM notice was served. To the extent that he had adopted a somewhat lower profile, that could be explained by matters other than a change of heart. The programme [documentary 1] in which LG had featured had been broadcast in [redacted] and the [documentary 2] programme (which also featured LG prominently) had been broadcast in [redacted]. The trial of Anjem and Mizanur was originally due to take place in early 2016. There had been a police operation against ALM in Luton. All of these were reasons why LG might have chosen to take a less prominent role in the months immediately leading up to the service of the TPIM.
The ideological difference between LG and, at least some members of ALM, appeared to be because LG thought ALM and ISIL were insufficiently extreme in their views about takfir. That gives little comfort that his risk is reduced.
Imam Chowdhury considers that LG's views were changing and in a positive direction. The SSHD does not accept this represents a genuine change of position on LG's part, but is self-serving. As Imam Chowdhury acknowledged, he did not have access to the Closed material. He was dependent on what LG chose to tell him. The SSHD also observes that, as recently as January 2016, LG was telling [redacted] T that he supported the call for sharia, that he believed the khilafah had been established and, if he had a passport, he would try to get there. It was a curious means of trying to discourage a young woman bent on a romantic relationship, particularly one who had been attracted to LG in the first place because of his extreme publications. It is not, of course, an explanation that has been tested by cross examination. Some months later (and after the TPIM had been imposed) he applied to have T as an approved contact. Furthermore, his communication with T over social media had lasted three months, and was not the brief exchange which he had previously said in a witness statement for these proceedings. There was no evidence of radicalisation in these exchanges, but there was the beginning of a pattern, [redacted], of gradually leading vulnerable individuals into more extremist meetings. LG had been found by Hickinbottom J. to have 'deliberately exaggerated the nature and extent of the abuse he has suffered [in Location A] and the effect it has had upon him' - see . It is fair to say that LG had not given oral evidence before Hickinbottom J. but the Judge was able to draw this conclusion from the contrast between what LG had said in his witness statements about the incidents in question and what could be seen on CCTV footage of one of them.
In my judgment, the SSHD was entitled to come to the reasonable conclusion that Condition C was satisfied at the time the TPIM was imposed and entitled to decide that Condition C continues to be satisfied. I accept that she was entitled, for the reasons already given, to be sceptical of LG's professed change of heart and direction and to doubt whether it was both genuine and complete. It is also noteworthy that LG chose not to support this positive case by giving oral evidence. The account of the length of his dealings with T which he gave in an earlier witness statement and which he also gave in his meetings with Imam Chowdhury was inaccurate. That, added to the findings of Hickinbottom J., gives additional support to the SSHD's conclusions regarding Condition C. In a note dated 15th May 2017 Mr Hickman argued that the T incident did not assist the SSHD because there was no evidence that he tried to recruit her to ALM. I do not accept that the relevance of the incident is so limited and Mr Hickman's submissions do not alter my conclusion. I have also reached the same view (that the SSHD was entitled to decide that Condition C was, and continues to be satisfied) on the basis of the Closed evidence.
LG: Condition D: Was the SSHD entitled reasonably to conclude that it was necessary for purposes connected with preventing or restricting LG's involvement in TRA for each of the specified measures to be imposed on him and that that continued to be the case?
I will consider separately those measures in relation to which LG or Mr Hickman raised specific objection. So far as the other measures are concerned, I consider that the SSHD was entitled to decide that they were necessary and proportionate and continue to be so. I reach the same conclusion in relation to the measures in the TPIMs for the other Respondents where no specific issue is taken with the measure in question.
I will take first the ORM and travel restriction measure which together amount to mandatory relocation.
The SSHD's case is that ORM is necessary because it will prevent LG from engaging in TRA, in particular those involving ALM and its radicalising activities; it will help prevent him from organising ALM meetings and talks in London; it will help prevent him from attending da'wah stalls and other ALM activities; it will limit his ability to act in a leadership role; and will help manage his abscond risk.
As already noted, a further advantage that the Security Service saw in ORM was that it would further disrupt and degrade ALM as an organisation.
LG argues that relocation was not and does not satisfy the requirement of necessity or proportionality. He relies in particular on the following aspects:
a. The threats to his safety which he has suffered and which continue to concern him in Location A.
b. The separation from his wife and children which has been the consequence of his relocation. His family are only able to visit him occasionally since his wife cannot drive long distances, the children's schooling is a restrictive factor and the children, in any case, are bored by the restrictive conditions under which LG has to live in consequence of the TPIM. This rupture has had an adverse effect, not only on him, but also on his wife and children. His wife struggles to look after their four children, three of whom attend different schools.
c. His sense of isolation in Location A. This isolation has led him to resume using Class A drugs
d. His sense of isolation has also adversely impacted on his mental health, as Dr Deeley has confirmed.
e. Such risk to the public of terrorism as he does pose (and LG submits that there is none) could be sufficiently and more proportionately addressed by bail type conditions. The breaches of his TPIM of which he has been accused are relatively minor. He would be aware that any further breaches could lead to a reinstatement of the ORM and, depending on the nature of the breach, might lead to an allegation that it constituted 'new' TRA so as to allow the SSHD to extend the TPIM beyond its maximum two year life.
At the time of the hearing before Hickinbottom J. there had been 7 incidents on which LG relied as showing that his safety was at risk, particularly from far right extremists. In his judgment Hickinbottom J. reviewed carefully the evidence as to each. He gave his conclusions as follows:
'130. The level of incidents has certainly not increased over time. Indeed, after some early interest (especially from neighbours), they appear to have plateaued. The police assessment makes clear that there are no significant racial tensions in [Location A] nor any significant EDL [English Defence League] presence in [Location A]. The Appellant's presence has not been assessed as having caused community tensions, and concerns have been isolated. Comments and concerns from neighbours have reduced over time.
131. Therefore, although the incidents relied upon were undeniably unfortunate, in my view, they were far from the most serious. In respect of them, the evidence is overwhelmingly to the effect that the protective measures which the Secretary of State has put in place have been implemented rigorously, fully and effectively. Every complaint made by [LG] has been logged, and has been investigated (even when [LG] himself has not requested an investigation). [LG] does not suggest that he is at real and imminent risk of death or serious injury; but if such a risk arises, there is a protocol in place to deal with it. [LG] and the relevant agencies appear to have a good relationship, and appear to be working together well. [LG] makes no complaint about them - except, perhaps, as to their assessment of future risks he faces in [Location A] - nor, in my view, on the evidence, could he.
132. The assessments of the police and MI5, notably those on review, have consistently been that, with those protective measures in place, there is no significant risk of violence towards [LG]; and, particularly, that on the basis of the current evidence, the police "… have no reason to believe that there is any real or immediate risk to life or harm relating to [LG] or his family". That assessment is worthy of considerable deference; but, in any event, on the basis of the open material, I agree with it. Mr Hickman [who then, as now, appeared for LG] submitted that the risk of serious harm substantially increased the impact of the ORM on [LG]. I agree that it would; but I do not consider that the submission that there was and is such a risk in this case has any real force.'
Before me Mr Hickman observed that 'Netflix' had recently made available [documentary 2] and that had increased LG's concern since the hearing before Hickinbottom J. [redacted]
Furthermore, since the s.16 appeal there had been two further incidents:
a. On 24th December 2016 a bin or rubbish bag outside LG's residence was found to be on fire. It required the fire brigade to put it out.
b. On 21st March 2017 LG was informed of a disturbance at his residence that had been captured on the CCTV that had been installed outside his home.
After this judgment had been prepared in draft and while the procedure in CPR r.80.29 was taking place, I was informed that yet further and more serious incidents had occurred, namely:
That evening the police served LG with a formal notice warning him that information and intelligence existed which identified him to be at risk of real and immediate harm.
The TRG minutes for the meeting on 9th March 2017 noted that the first of these incidents (the fire in the rubbish bin or bag) had been investigated by the police. It had not been possible to establish the cause of the fire. There was no information or intelligence to suggest that the EDL had been responsible. The second incident took place after that TRG meeting. In his evidence, Mr Daly said that the police were still investigating it. The CCTV on which it had been captured had been installed on the Home Office's instructions on 18th January 2017.
Dr Deeley diagnosed LG as suffering from a depressive disorder of moderate severity, a generalised anxiety disorder with severe symptoms of anxiety and an opioid dependence syndrome. LG had a past history of opioid dependence but immediately prior to his relocation he did not appear to have been suffering from any mental health conditions. In Dr Deeley's view his present conditions are a result of a predisposition to depression because of low self esteem and social isolation. The threats of violence which LG reported made him feel acutely anxious and worried about the safety of his wife and children when they visited him in Location A. He thought the prognosis was poor if LG stayed in Location A. Dr Deeley thought that LG's relapse into drug use had been precipitated by the stress of relocation and resulting insomnia.
Dr Deeley's report was before Hickinbottom J. who accepted that LG suffered loneliness, depression and symptoms of anxiety as a result of the relocation. He added (at )
The medical notes refer to LG's use of a heroin substitute. There is no further report from Dr Deeley.
'but he did not spontaneously seek medical assistance in respect of them, and that is perhaps a measure of their severity. Dr Deeley suggested some treatment, and it seems [LG] is now being prescribed anti-depressants and other drug therapy. There is no specific evidence as to the benefit he has achieved from those. There is no reason to suppose that that therapy has not been successful, at least to some extent. It is continuing, which suggests that it has been of some therapeutic benefit.'
Mr Hickman argues in addition that relocation could not be required to prevent LG's social media or online activities. These can be done anywhere and, in any case, are prevented by other measures in the TPIM. Nor is it necessary for LG to be relocated to prevent him attending da'wah stalls or giving public talks: both of these could be prevented by conditions akin to bail conditions. If these alternatives were tried and found to be wanting, then a relocation provision might be justified. The alleged risk of absconding is no more than an assertion. Even if, contrary to LG's case, he was presently a leader of ALM, his role in that capacity could be prevented more proportionately by restricting his association with others or by restrictions on his means of communication.
I note that LG's wife has said that the other restrictions in LG's TPIM would make it too difficult for their children if he moved back into their home. She does, though, support his position that he should be able to live close to his family and not be required to live in Location A.
In my view the SSHD was reasonably entitled to conclude that the ORM was and continues to be necessary (and proportionate) for purposes connected with preventing or restricting LG's involvement in TRA.
a. I recognise that, for the purpose of the s.16 appeal, Hickinbottom J. was required to take the national security case at its highest. That is not so with the s.9 review which I must conduct. However, my review of the national security case does not lead me to a different conclusion as to the necessity and proportionality of the ORM.
b. LG did not agree with Hickinbottom J's conclusions as to the incidents which had been considered by him, but realistically and appropriately recognised that, so far as they were concerned, I was not going to re-examine the same evidence. The two further incidents since that decision and which had occurred prior to the hearing before me did not significantly affect Hickinbottom J's conclusions. Like the earlier incidents they had been, or are being, properly investigated. The incidents [more recently] were more serious, but they led to the police taking swift protective action.
c. In his judgment at  Hickinbottom J. summarised the protective measures which had been put in place and appropriate action followed the [more recent] incidents.
d. LG's heroin dependence is being appropriately managed.
e. There is no further report from Dr Deeley. Such brief further medical records as I have seen do not lead me to adopt any different conclusion from Hickinbottom J. regarding LG's mental health.
f. The information concerning LG's children which was available to the SSHD at the time the TPIM was imposed was limited. There can be no criticism of the SSHD on that score. She recognised, and recognises, that the impact of an ORM, in particular, has a very serious impact on the family as a whole. She has taken what measures she can to mitigate the impact. Thus, for instance, she reimburses LG's wife for the cost of taking her family to visit LG in Location A when LG's wife is able to do so. She has permitted LG to have a Playstation for his children to use. Of course, these measures will be seen as minor by comparison with the fundamental impact of the ORM. However, even according the impact on LG's children the 'substantial importance' which Laws LJ said was required, it is still my view that the ORM was a proportionate interference.
Recalling Lord Sumption's proportionality principles, the protection of the public from terrorism and TRA was of prime importance and plainly sufficient to justify some limitation on the fundamental rights of LG and his family. There was a rational connection between relocation and the achievement of those objectives. In deciding whether less intrusive measures would have been sufficient without unacceptably compromising this objective, I bear in mind in particular:
i. The importance which the SSHD was entitled to attribute to protecting the public from terrorism.
ii. The responsibility which Parliament has given to the SSHD for making decisions of this kind.
iii. The expertise available to the SSHD, particularly through the Security Service whose evidence and reasoning has been scrutinised through this review.
For all the reasons I have given, I consider a fair balance has been struck between the interests of LG and the interests of the community.
The Closed evidence supports this conclusion. The SSHD was entitled to decide on the basis of the closed and open evidence that the lesser alternatives to an ORM would not have been adequate.
LG: Association Measure (Addition of Kareem to the list of prohibited associates)
On 13th March 2017 the SSHD added Kareem [redacted] to the list of people with whom LG was not allowed to associate or communicate. The Home Office's letter of that date said that Kareem was 'an associate of individuals linked to ALM and it was assessed that he was aware of LG's senior leadership role in ALM'. LG says that Kareem was a close friend of his with whom he had spoken regularly and frequently. This relationship was important to him and helped to reduce his feeling of isolation in Location A. Furthermore, as he had mentioned to Imam Chowdhury, he challenged Kareem on some of his views and he deployed some of the arguments which had come out of his discussions with the Imam.
Ms McGahey did not object to the issue of the addition of Kareem being added to the prohibited contacts list being canvassed in this review. In those circumstances, I will consider the issue. However, if such matters of detail are to be raised, it is important that the SSHD has sufficient notice for them to be properly addressed in the evidence.
Having considered all of the evidence, I accept that the SSHD was entitled to make this addition to the list of in LG's Association Measure. In his statement of 17th March 2017 LG complains that the information he was given as to why Kareem had been added was sparse. That is not unusual given the context in which the SSHD has to take such decisions.
Association Measure (Religious Advice)
Mr Hickman adopted the arguments which were led by Mr Friedman on this issue. He, too, submitted that, in this connection the measure was unacceptably vague and over-broad.
As I explain when I turn to the issues in IM, I agree with Mr Friedman that, in this respect, the association measure needs to be varied. On this matter, the arguments are the same for all the Respondents. So far as LG's association measure concerns religious advice, it, too, must be varied.
In the first national security statement, this requirement is justified as providing assurance of LG's whereabouts and reducing the risk of him absconding.
LG argues that the police station is a 45 minute walk from his residence and requires him to go through a shopping centre where he feels threatened. He argues that the requirement is disproportionate since the tag he wears already provides a means of monitoring his movements and he is, anyway, allowed to report by telephone at the weekends.
I have considered this issue both in open and in closed. While there is a value in requiring LG to attend personally at the police station on some days, it would be a proportionate requirement for him to do so three days a week (Mondays, Wednesdays and Fridays). On the other days (Tuesdays and Thursdays) like Saturdays and Sundays under the present arrangements, he will be required to telephone in to the monitoring company within a prescribed time band.
Financial Services Measure
This is justified in the first national security statement as a means of restricting LG's ability to fund TRA or to procure funds to assist in any attempt to abscond. Mr Hickman argues that this is not necessary. There has been no accusation against LG that he has funded TRA, or that he has any significant assets which could be used for such a purpose. Furthermore, LG has not sought to travel abroad since his passport was cancelled, and he would need to accumulate a very substantial sum to do so now. Mr Hickman added that the measure restricted LG from withdrawing more than £75 in any one week, not simply from having more than £75 on his person at any one time. There was no necessity for that prohibition. £75 was also being treated as the standard limit, without any consideration of the individual's personal circumstances.
I do not accept Mr Hickman's arguments. The SSHD was entitled to decide that both reasons justified the measure and to decide that it was proportionate. It was not necessary for the SSHD to have evidence that LG had funded TRA in the past for her to believe that the measure was necessary to stop him from funding it while on a TPIM (particularly if the other measures inhibited his other activities), and the risk of absconding against which the measure was intended to protect, was not just travelling abroad. Mr Daly also emphasised in his evidence that the measure applied only to cash. It did not stop LG from using a debit card up to any amount. There was no reason why the SSHD should not adopt a standard limit, as long as there was sufficient flexibility to alter it if an individual's circumstances meant that the standard amount would be a disproportionate restriction. There was nothing in the material which LG has put before the court to suggest that this is so in his case.
The package of measures as a whole
Mr Hickman (like Mr Friedman and Mr Southey) commented that the TPIMs imposed on the Respondents included each of the possible measures in TPIMA 2011. Taken as a whole, they submitted, this was an unreasonable, unnecessary and disproportionate burden to place on each of them and not justified by whatever limited risk to the public they might pose. They argue that bail type conditions would be sufficient. After all, it is submitted, the arrest of Mizanur and Anjem [redacted] was considered to be disruptive of ALM and the bail conditions which were then imposed inhibited Mizanur and Anjem from fully discharging their former roles as leaders of ALM.
For the reasons which I have given here (and in the Closed judgment) the SSHD was entitled to decide that this would not be an adequate solution to the risk which she considered LG posed. Taken as a whole the measures are burdensome, but the SSHD was entitled to regard them as nonetheless necessary and proportionate for purposes connected with protecting the public from a risk of TRA and a risk of terrorism.
The SSHD was and continues to be entitled and right to decide that Condition A is satisfied.
The SSHD was and continues to be entitled to decide that Condition C is satisfied.
The SSHD was and continues to be entitled to decide that Condition D is satisfied with the following exceptions:
a. The Association Measure (so far as it applies to religious advice giving) will need to be varied, as I discuss elsewhere in this judgment.
b. The Reporting Measure will need to be varied so as to require reporting to a police station on Mondays, Wednesdays and Fridays within a specified time bracket and to require a telephone call to the monitoring company on Tuesdays, Thursdays, Saturdays and Sundays, again within a specified time bracket.
IM is a 40 year old British national who was living in north west London at the time the TPIM notice was served. He was married to [redacted] but was divorced from her in 2013. They have four daughters aged 13, 11, 10 and 5 and a son aged 7. When the TPIM notice was served IM was living with his eldest daughter (the 13 year old). His ex-wife and the other children lived in East London. In September 2016 (and so about 3 months after the TPIM notice was served), IM's eldest daughter joined him in Location B1. She then moved with him to Location B2. His wife and other children remain in East London. IM uses the kunya, [redacted].
IM: the SSHD's national security case
In her open evidence, the SSHD relies on ALM1, ALM2 and ALM3, the two national security statements specific to IM viz IM1 and IM2 and Mr Daly's two statements relating to IM.
IM relies on two statements of his own, dated 29th September 2016 and 22nd March 2017, a statement from [his wife] also dated 29th September 2016, a report by a psychiatrist, Dr Meena Naguib, dated 15th August 2016 and a report from an independent social worker, Christine Brown, dated 21st October 2016. While all the other open evidence was cross-served on each of the Respondents, on 24th February 2017 I gave permission for redacted versions only of IM's evidence to be cross-served. Un-redacted versions were served on the SSHD and IM's Special Advocates. What was redacted concerned sensitive personal information about a third party minor. The redacted parts were not publicly referred to during the course of the hearing. The SSHD, LG and JM did not object to this course. I directed that notice of my decision should be served on the Press Association and gave any media organisation a limited opportunity to apply for this part of my order to be set aside or varied – see SSHD v IM, JM and LG  EWHC 376 (Admin). None did. During the open hearing, there was a short period when Mr Friedman QC, on IM's behalf, made closing submissions which made some reference to this material. He did so in the absence of LG and JM and their legal teams.
The broad outline of the SSHD's national security case against IM has the same three elements as with LG (and indeed JM – see below), namely (a) he is a senior leadership figure in ALM; (b) he encourages and (through radicalisation) facilitates the travel of others to join ISIL; and (c) he engages in conduct amounting to radicalisation. As with LG (and JM) the SSHD's case is that IM has been involved in TRA as defined by TPIMA 2011 s.4(1)(b) and (c).
IM: senior leadership figure in ALM
IM accepts that he was a member of ALM in the distant past, though not a leader. He maintains that ALM was dissolved in 2004, that the organisation no longer exists and he is not therefore a member or a leader of it. OBM is a person whom IM respects and OBM officiated at the wedding of IM and his wife. IM is not prepared to denounce OBM.
The SSHD does not accept that ALM has ceased to exist. She maintains that IM remains a senior leadership figure.
On 30th June 2014 (and so a few days after Al-Baghdadi's declaration of the Caliphate) IM engaged in an exchange of messages with Mizanur and Anjem. He is the first in that sequence to refer to ALM. He points out that it has been disbanded but a new emir needs to be appointed. He urges recognition of the Caliphate and calls for a meeting of the brothers. He was not one of those who attended the meeting which did take place (on [redacted]) but, the SSHD submits, this was because he was not trusted to be sufficiently security aware. IM himself speculated that he was not invited because he was known to be 'abrupt and unconsidered'.
In September 2014 when Mizanur was arrested, his mobile phone was seized and investigated. It included a photograph of a handwritten organogram entitled 'Cultural Committee'. This identified a 'core team' which included Anjem and Mizanur and also a name which the SSHD says is a shortened version of IM's real name.
IM appeared in the documentary [redacted] [documentary 2]
The SSHD alleges that IM was active in organising and promoting the organisation Need4Khilifah as could be seen from messages on IM's phone at the time of his arrest in [redacted]. The SSHD refers, for instance, to one such message of 15th February 2014, although it is accepted that this preceded the designation of Need4Khilafah on 26th June 2014 as an alternative name for the already proscribed organisation ALM.
IM is alleged to have taken part in a number of ALM-affiliated events including a protest outside Paddington Green Police Station on 31st January 2014, a protest outside the Lebanese Embassy on 4th April 2014 and a demonstration outside the Indian High Commission on 9th May 2014.
IM was recorded speaking at an ALM event on 27th June 2015 in which he spoke passionately against the kuffar.
IM: Encouraging and (through radicalisation) facilitating the travel of others to join ISIL
On 30th June 2014, and so a few days after Al-Baghdadi had declared a Caliphate and himself as the Caliph on 24th June 2015, IM is alleged to have declared his own allegiance to Al-Baghdadi. He said,
'I declare my obidience [sic] to the Khaleefah His order is binding on me! Allahu Akbar!'
IM's case is that he was speaking of the abstract concept of a leader governing according to Sharia law in an abstract conceptual Caliphate. The SSHD does not accept his explanation and argues that it was simply a declaration of support for Al-Baghdadi.
In IM's view there was a short (3 day) window in which Muslims should pledge their allegiance to a declared Caliphate. On 29th June 2014 IM sent Mizanur excerpts from an English translation of an ISIL speech which called on Muslims to recognise the Khalifah. The following day, 30th June 2014 (and the same day that he made his own declaration of allegiance), he said to Mizanur, that 'We have until Wednesday evening to appoint an Amir. That would be three days. The Shura needs to gather …' On 2nd July 2014 he again said to Mizanur that they had to move quickly and declare bayah [i.e. allegiance].
As already noted, it is the SSHD's case that ALM did indeed declare allegiance to Al-Baghdadi in the message that was posted on the Indonesian website on 7th July 2014.
In further support of her case that IM supported ISIL, the SSHD relied on pro-ISIL extremist material found on IM's laptop when he was arrested in [redacted], numerous internet searches regarding jihad, exceptions to the jihad obligations (the SSHD assesses that IM himself seems to have believed that he was himself exempt from a duty to travel to ISIL territory because of his ill-health), and to ISIL material found on IM's phone when he was arrested and [redacted]
As to the SSHD's case that IM encouraged others to travel to ISIL territory, she also relies on an exchange on WhatsApp with Siddartha Dhar ('Dhar') [redacted]. Dhar is alleged by the media to be an ISIL-fighter who is shown (masked) in a propaganda film murdering 5 individuals. [redacted]
IM: Conduct amounting to radicalisation
In addition to matters already referred to, the SSHD relies on [redacted].
IM's response to the national security case
IM disputes that ALM continued to exist after its disbandment in 2004. He says that there is, at most, a group of like-minded associates who share a common ideology which, if provocative, is within the law. He was not a signatory of the declaration which purported to be made on behalf of ALM. He was excited at the announcement of a Caliphate by Al-Baghdadi because this was an event for which many Muslims had been waiting, but he remained uncertain as to its legitimacy. His personal declaration of allegiance was for the abstract concept of a Caliphate. It was also a product of his mood disorder which Dr Naguib has diagnosed.
IM denies that he has ever had a leadership role within ALM. He was not identified as a 'team leader' on the organogram. Although his name featured on the list seized from [redacted, another ALM member]'s home, it appeared only with a question mark by its side, and not in the top section of the list that was assessed to denote leadership figures. He was not one of those who took part in the meeting on [redacted]. His messages which preceded this meeting support his case that he thought the organisation no longer existed – that was why a Shura and a new emir were needed.
[redacted]. His comments at the meeting in Luton in June 2015 about throwing gay men from high buildings were in line with some Muslim thinking. They were not encouragement for terrorist acts.
IM's case is that he observes the covenant of security. As such he considers that he must not attack the country in which he is living. Indeed, the SSHD does not allege that he has participated in any attack planning in the UK.
IM: Condition A: Was the SSHD entitled / right to conclude on the balance of probabilities that IM is or had been involved in TRA and is she still entitled / right to take that view?
I have summarised the SSHD's national security case. In my view she was entitled and right to decide that IM had been involved in TRA for the reasons which she has given. She was entitled and right to find that ALM continued to exist and that IM was a senior leading figure within it. She was entitled and right to find that he had, through radicalisation facilitated or encouraged others to join ISIL to whose Caliphate he had personally declared allegiance and also that his conduct amounted to radicalisation. The 1st March 2017 statement on ALM explained why the Security Service took no comfort from the Covenant of Security. Individuals could (and had) come to the view that the Covenant had been broken by the UK authorities and so relieved them of any obligation to observe its restrictions. ISIL itself had called for attacks on the West and ALM as an organisation had pledged allegiance to ISIL. My conclusions are reinforced by the Closed evidence.
IM: Condition C: Was the SSHD entitled reasonably to consider that it was necessary for purposes connected with protecting members of the public from a risk of terrorism to impose a TPIM on IM and that that continues to be the case?
In my view the SSHD was and continues to be entitled reasonably to conclude that a TPIM on IM was necessary for the purposes connected with protecting members of the public from a risk of terrorism. Once again this conclusion is supported by the Closed evidence.
IM: Condition D: Was the SSHD entitled reasonably to conclude that each of the individual measures was necessary for purposes connected with preventing or restricting IM's in TRA and that continued to be the case?
The SSHD relies on very similar matters as she did in relation to LG in support of the ORM in IM's TPIM.
Mr Friedman argued that the ORM was not necessary to protect the public from his involvement in TRA for the reasons which have been given in response to the national security case.
He argued further that the ORM was a disproportionate interference with IM's family and private life and those of his ex-wife and children. In particular, he argued, the best interests of the children were not, as they should have been, treated as a primary consideration. I have already commented on the proper approach to be taken to the best interests of children. Here it is necessary to consider the application of those principles to the facts of IM's own family. Mr Friedman argued that insufficient attention had been given to the impact of the ORM on his eldest daughter who moved to live with him in location B1 and who now lived with him in location B2. She was currently being home schooled, but, in due course, IM would wish her to go to an Islamic girls' school. The needs for her schooling and contact with her London family had either not been considered or given insufficient weight. Further evidence relevant to this issue had been given in the private hearing and which I will consider in an annexe to this judgment which will also be open but which will be given in private only to IM, the SSHD and the SAs for IM.
After his divorce, IM had continued to be actively involved with his children's lives as his ex-wife confirmed in her statements. His ex-wife had health problems of her own, consequent upon a stroke at the time of the birth of one of her children. This continues to affect her memory.
In Dr Naguib's view, IM suffers from mood disorder with symptoms akin to bi-polar affective disorder or cyclothymia which is also characterised by recurrent mood swings.
In his statements, IM says how isolated he has felt in Locations B1 and B2. He is under the care of the local mental health services. He is seeing a psychiatrist and has been referred for cognitive behaviour therapy. There are also reports that IM suffers from chronic fatigue syndrome. His present residence at location B2 is further from the police station (at which he presently has to report 5 times per week) and his doctor's surgery. Walking to each of these is burdensome for him.
Although a number of suspected breaches of IM's TPIM have been investigated, none has led to prosecution.
Mr Friedman argued that, if the ORM (and related travel measure) were not simply quashed, they should be varied to allow IM (and his eldest daughter) to live closer to Greater London. He argued that this should be required in view of his strong family ties and commitments, the weakness of the case on abscond risk, the difficulties of his other children visiting him apart from in the school holidays, the implications for IM as, effectively, a single parent and his daughter, the serious implications of the present ORM for the third party minor and the effect of the ORM on IM's health.
In his second statement in IM's case, Mr Daly says that at the time of the TPIM service was served, the SSHD was aware that IM's eldest daughter was living with him. A female police officer was available to explain the TPIM procedure to her. IM and his daughter agreed that she should initially stay in London and IM's brother came to take her. He says that the impact of the TPIM on IM's family life was given 'careful consideration' and that has continued to be the case at the TRG meetings. Mr Daly says that the SSHD arranged accommodation for IM in locations B1 and B2 which would be large enough to accommodate IM's ex-wife and children to visit. They were not aware of his daughter's health issues until they received IM's first witness statement on 3rd October 2016. The TRG meeting on 27th September 2016 considered that the TPIM was still necessary and proportionate.
The Home Office received the social work report from Ms Brown on 20th January 2017. Mr Daly had spoken to the local police who said that the local social care system was fully engaged with IM and his daughter and there was liaison between them and the relevant local authorities in London. Contrary to what Ms Brown had said, the necessary permissions had been given for IM's daughter to be able to buy a mobile phone. It would have internet capabilities, but these had to be turned off when she was in the home. IM had also been given permission to acquire a laptop and fixed line router to help with his daughter's schooling. However, it was a condition of the permission that the laptop would have to be modified to limit its capabilities. Those modifications would have prejudiced the warranty and, in those circumstances, IM did not wish to go ahead with the purchase, although a modified laptop was obtained eventually. Arrangements were also approved to allow his daughter to register at the local library and for her to obtain internet access there. The TRG meeting on 9th March 2017 recorded that IM's daughter attended madrassah classes at the local mosque and a study centre two days a week for tutoring classes. IM's reporting requirements were amended so that he did not have to make multiple journeys into the centre of town on those days. The 9th March 2017 TRG noted that the report of the social worker had been received and summarised its conclusions.
Mr Daly observed that IM's daughter had stayed with her mother for a number of days in February.
However, even taking into account all the evidence on which IM relies in open (and the evidence and submissions which I heard in Closed), in my view the SSHD was entitled to conclude that the ORM was and continues to be both necessary and proportionate for purposes connected with preventing or restricting IM's involvement in TRA.
The factors to which I referred in  above in connection with LG also apply to IM's case.
Association Measure (child visitors)
In his skeleton argument prior to the hearing, Mr Friedman argued that the association measure was excessive. This requires IM to give the Home Office advance notice of the first occasion that any new visitor comes to his residence. There is an exception for children under 10. IM lives with his 13 year old daughter. Mr Friedman's skeleton argued that the age limit of this exception should be raised to 14 to make it easier for his daughter spontaneously to bring back friends of her own age to her home.
Ms McGahey observed that this specific objection had not previously been made. Sensibly, it was agreed that it should be treated as a request for a variation of the association measure as to which the Home Office would give a considered response. If the request was refused, Mr Friedman would have the opportunity to make submissions in writing and I would treat these as an appeal under s.16 against a refusal to vary.
By a letter dated 21st April 2017, the Home Office did refuse to vary the measure. It said that it recognised the obligation to consider the best interests of IM's daughter, but did not believe the impact on her outweighed the risk which IM posed. It was assessed that IM was a senior leadership figure in ALM and a radicaliser. It was judged that children under 10 were less likely to understand his extremist views and so less likely to be influenced by them, but those over 10 were more likely to be susceptible to them. The Home Office noted that, even with the association measure remaining unchanged, IM's daughter could meet and socialise with her friends at their houses or at another venue. The restrictions on them visiting their own home was limited to a one-off notification before the first visit.
In his submissions dated 28th April 2017, Mr Friedman argued that this refusal was a disproportionate interference with the private and family lives of him and his daughter. By joining her father and living with him in location B1 (and now B2) she was separated from her mother and siblings. Her sense of isolation was great. The unaltered association measure represents a significant inhibition on her ability to initiate and foster friendships with other children in a spontaneous manner. The Home Office concern as to IM radicalising his daughter's friends is not accepted, but is anyway addressed by the separate prohibition (which would continue to apply to visitors to the house) on giving religious instruction.
In my view the SSHD has shown that the unaltered association measure is necessary and proportionate. Even teenagers are vulnerable to exploitation and radicalisation. Obviously, there is an arbitrary element in any cut-off, but I cannot say that the decision of the Home Office that it should remain at 10 is irrational (nor, to be fair, is that argued by Mr Friedman). I understand what is said about the effect which this may have on the ability of IM's daughter to make friends. However, the inhibition is itself limited in the ways in which the Home Office mentions in its letter. I note also that the association measure prohibits IM meeting with any person (unless advance notice has been given). It would not, therefore, prevent IM's daughter from inviting her friends back to their home if he was absent from the house. Of course, that is not a complete answer to her wish to be able to deal with friends spontaneously. However, the measure as it stands is not, in my view, disproportionate. It is and remains a necessary measure.
In his submissions, Mr Friedman made yet another proposal, namely that, for 10-14 year old visitors, it should not be necessary to give advance notice to the Home Office of their names and addresses, but it should be sufficient if this information was given retrospectively within 12 hours of the first visit. In a letter of 11th May 2017 the Home Office agreed to this request. This illustrates the scope for constructive dialogue, even though, as I accept, it does not address the fundamental objection to the Association Measure. That dialogue can continue irrespective of the s.9 review. In the future it may be necessary to make a clearer demarcation between requests for changes to the individual measures and the scope of the Court's review. The latter has to come to a conclusion and cannot be indefinitely postponed while tweaked requests are put to and considered by the Home Office.
Association Measure (religious advice)
Paragraph 9.5 of the TPIM says,
'You must not lead prayers, give lectures, hand out leaflets, participate in any public or broadcast discussion, publish any document or statement, attend any dawah stall, or preach or provide religious instruction or advice (except to your children at your residence) unless the Home Office has given permission for you to do so.'
Mr Friedman submits that this prohibition is unclear. He submits, uncontroversially, that any restriction on freedom of expression (or family life) must be 'in accordance with the law' and this, in turn, means that it must be formulated with sufficient precision to enable the individual - if need be with appropriate advice – to regulate his conduct – see for instance Gillan and Quinton v UK Application No.4158/05 (2010) 50 EHRR 45 at .
Mr Friedman also argues that the restriction is over-broad. He notes that in SSHD v GG  EWHC 142 (Admin) at  Collins J. required a comparable restriction in a control order to be narrowed so that it only applied to something that could 'reasonably be understood as a direct or indirect encouragement or glorification of or an inducement or assent to the commission, preparation or instigation of an act of violence.' Mr Friedman would add that the prohibition might also apply to any form of caliphate, the legitimacy or otherwise of ISIL, its published names or equivalent descriptions.
Ms McGahey commented that the SSHD was always willing to consider adjustments to the TPIM measures. No issue had been taken with the religious advice measure until the skeletons were served in these proceedings. She submitted that the matter should be resolved in correspondence.
While I agree that discussion in correspondence would have been helpful, I have to consider as part of this review whether the SSHD was entitled to conclude that Condition D is, and continues to be, satisfied for each of the measures in the TPIM. The prohibition on religious advice is undoubtedly a restriction on freedom of expression and, I agree with Mr Friedman, for that reason, it will only be compatible with Article 10 of the ECHR (as well as other qualified Convention rights) if it is sufficiently clear in its terms and not over-broad. Furthermore, to be compatible with Condition D, the measure has to be necessary for the purposes connected with preventing or restricting the individual's involvement in TRA. It is difficult to see how religious advice which does not concern the matters identified by Collins J. (as expanded by Mr Friedman) could have this effect. However, if those changes were made, there would be no good reason for an exception for such advice given in IM's home to his children. It is fair to say, that in view of the very many other issues which were canvassed at the hearing, the precise terms of the revision did not receive the attention it would otherwise have done. (I note that in GG, the religious advice issue was a separate appeal against the SSHD's refusal to vary the term). Because of this, I will allow the parties, when this judgment is circulated in draft, to make submissions as to the precise terms of a revised paragraph 9.5. Subject to such submissions, in my view it should be amended to say:
'You must not lead prayers, give lectures, hand out leaflets, participate in any public or broadcast discussion, publish any document or statement, attend any dawah stall, or preach or provide religious advice or instruction which in any case could reasonably be understood as a direct or indirect encouragement to or glorification of, inducement or assent to the commission, preparation or instigation of an act of violence, or to any form of caliphate, or to the legitimacy or otherwise of ISIL, or its alternative proscribed names or equivalent descriptions.'
Paragraph 11 of the TPIM says,
'11.1 You must report in person to a specified police station every day at times that will be notified to you in writing by the Home Office.
11.3 You must report to the electronic monitoring company using telephone on the electronic monitoring unit located in your residence on days and at time that will notified to you in writing by the Home Office.' [emphasis added]
I notice that there appears to be an error in the drafting of this measure. The equivalent to paragraph 11.1 in the TPIMs for LG and JM both say, 'You must report in person to a specified police station on days and at times that will be notified to you in writing by the Home Office' [emphasis added]. It is only IM who is told that he must report in person every day. I describe this as a drafting error since I notice that the TPIM measures proposed by the Security Service in the first national security statement for IM says that IM should be required to visit a specified police station 5 days per week and place a call through to the monitoring company from his home address at the weekends. This was matched by Mr Daly's 1st witness statement which, like the first national security statement, said that the measure would require reporting at a police station 'every week day' and making a call to the monitoring company at the weekend. Mr Daly's second witness statement accurately says that IM is required to 'report in person to a specified police station every day' but then repeats that this is actually intended to be every weekday with a telephone call at the weekends. At the least, there is no justification for continuing to include in the reporting measure what appears to be the aberrant phrase 'every day'. It would accurately reflect the 1st national security statement and Mr Daly's 1st witness statement if the same language was used as in LG and JM's reporting measures.
That, however, is not an issue between the parties. Mr Friedman understood the current requirement to be that IM was only required to attend the police station on each weekday. That, he submitted, was excessive. Location B1 was close to the police station at which IM had to report. Location B2 is considerably further. IM must either walk for 45 minutes (which taxes his health) or take a bus which is a drain on his limited resources. Furthermore, the current requirement is that he must report at the police station between 1330 and 1430. That has the effect of breaking up the home schooling day for his daughter.
This inconvenience is said to be necessary because of IM's abscond risk, but, Mr Friedman argues, that is no justification. IM has close family ties and, anyway, his passport has expired and he has not applied for another.
As JB and Mr Daly said in cross examination, they were limited in the responses which they could give on this issue in open session. I examine this question further in my Closed judgment.
Having done so, I conclude that the reporting measure is disproportionate (even on the assumption that it is intended to require attendance at the police station on 5, rather than 7, days per week). There is value in requiring IM to attend the police station regularly, but, in my view, it would be proportionate for this to be only on Mondays, Wednesdays and Fridays. On Tuesdays and Thursdays (like on Saturdays and Sundays under the existing arrangements) IM should be required to telephone in to the monitoring company within a specified time bracket.
My decision is based on the information (both open and closed) which is presently before the court. My decision does not, of course, preclude the measure being altered again should the available information change.
The package of measures as a whole
As for LG, the package of IM's TPIM measures taken as a whole is clearly burdensome. Nonetheless, in my view the SSHD was entitled to consider that it was necessary and proportionate for purposes connected with protecting the public from a risk of TRA and a risk of terrorism.
The SSHD was entitled and right to conclude that Condition A was and continues to be satisfied so far as IM is concerned.
The SSHD was entitled to conclude that Condition C was and continues to be satisfied so far as IM is concerned.
With the following qualifications, the SSHD was entitled to conclude that Condition D was and continues to be satisfied so far as each of the individual measures is concerned and so far as the package of measures as a whole is concerned.
The qualifications are that:
a. The association measure (so far as it concerns religious advice) must be varied as I have discussed above.
b. The reporting measure must be varied:
i. So that paragraph 11.1 reads 'You must report in person to a specified police station on days and at times that will be notified to you in writing by the Home Office'.
The SSHD was entitled to refuse the request to enlarge the qualification to the association measure for children between 10-14, but it is noted that she has agreed to another variation of this measure.
ii. Those requirements may include an obligation that IM reports in person at a police station within a specified time bracket on Mondays, Wednesdays and Fridays and that, within a specified time bracket, he telephones in to the monitoring company on Tuesdays, Thursdays, Saturdays and Sundays.
JM is a 34 year old British Citizen. He is married and has two daughters (aged 14 and 12) and a son (aged 4). His wife gave birth to a fourth child in the course of the review hearing. JM's 4 year old son suffers from Global Development Delay Syndrome. His wife and children continue to reside at their home address in East London. Immediately prior to the TPIM JM was working part time as administrative assistant for 'Developing Minds', a tuition centre. His daughters are home schooled by his wife. JM uses the kunya [redacted].
In open the SSHD relies on against JM: the three ALM statements; the two national security statements specific to JM; and the two statements of Mr Daly. JM relies on his undated first statement, his wife's statement dated 23rd September 2016, a social work report from Dionne Tonge dated 4th October 2016, his second statement dated 21st March 2017, his wife's second statement of 23rd March 2017, his 3rd statement of 24th March 2017, his wife's 3rd statement of 30th March 2017, a report from Stuart Banks, a computer expert, of 22nd March 2017 and two notes from the Security Service, dated 29th March 2017 and 31st March 2017.
In 2006 JM was convicted of soliciting to murder. [redacted] JM was sentenced to [redacted] imprisonment (reduced to [redacted] on appeal).
In 2008 JM was convicted of fund-raising for terrorism contrary to TA 2000 s.15. He was sentenced to [redacted] imprisonment (reduced to [redacted] on appeal) to be served consecutively to his other sentence.
In May 2009 JM was released on licence. In June 2009 he was recalled to prison following an allegation that he had breached the terms of his licence. In May 2010 the Parole Board concluded that the recall had been wrong since he had not in fact breached his licence conditions. The first national security statement in connection with JM had said that JM had breached the terms of his licence. The 2nd national security statement accepted that this was an error.
JM: The SSHD's national security case
As with the other two Respondents, the SSHD's national security case has the same three elements viz, (a) JM is a senior leadership figure in ALM; (b) he has encouraged and (through radicalisation) facilitated the travel of others to join ISIL and (c) he has engaged in conduct amounting to radicalisation. Again this is said to amount to TRA within the meaning of TPIMA 2011 s.4(1)(b) and (c).
JM: senior leadership figure in ALM
JM's importance in ALM is alleged to be illustrated by his presence, along with Anjem and Mizanur at the meeting which took place on [redacted].
The SSHD alleges that JM was one of the people who assumed leadership functions of ALM after Anjem and Mizanur were charged in 2015. JM is considered to be particularly involved in financial and logistical arrangements for ALM. He was employed by an organisation called [redacted] ['Y'] which was run by [redacted] at [redacted]. Subsequently, JM's employers' assets were frozen under counter-terrorism measures.
JM is alleged to have been involved in a number of ALM events including an anti-voting roadshow on 11th April 2015 and an ALM event in Shepherd's Bush on 3rd October 2015.
On 30th August 2014 a WhatsApp message was sent to JM. This referred to a Paltalk which was to be hosted by JM at which Anjem and Mizanur were to speak and which would also include a special address by Dhar. The message included a warning against advertising the event on social media. Another event, which was also to be hosted by JM on 20th September 2014, and at which Mizanur was again expected to speak, was also advertised through social media.
When JM was arrested on [redacted], a search of his house showed financial evidence linking him to premises at [redacted] (his workplace address), which was said to be a known ALM meeting place.
A handwritten document with a list of names was seized by the police in December 2015 from [redacted – another ALM member]'s home. It included JM's name. The Security Service assessed the list to be of core ALM members.
JM: encouraging and (through radicalisation) facilitating the travel of others to join ISIL
On 9th July 2014 JM's Facebook page shared Mizanur's status which was a statement recognising the validity of the Islamic Caliphate and its new ruler.
On 19th July 2014 JM published a Facebook status which said,
'Why the oppressors will never win!! Islamic black flag still waving. Cars still being washed. Money still being raised. All united for #Islamic State.'
In August 2014 JM appeared in a video with the title, 'The Khilafah has been re-established.' He was shown holding a leaflet. The leaflet listed the responsibilities of Muslims including pledging allegiance to the Caliph and migrating to the Caliphate. In the video JM said, 'We belong to the Islamic State. We belong to the Khilafah. We belong to one nation governed by Sharia Law.' Another person can be heard on the video warning JM to be careful about what he is saying.
Following JM's arrest in [redacted], his laptop and mobile phone were examined. They contained a large amount of graphic material including images of beheaded hostages, ISIL training camps, and items to do with ISIL terrorism.
JM's laptop also had an audio file which was a talk by Anjem. At the beginning of the talk a voice, believed to be JM's, says,
'Muslims have now seen a viable alternative for Muslims to all the dictators and corrupt states…people are ready for the Islamic State… They want the Islamic State…They will have the Islamic State. It is unstoppable.'
JM: Conduct amounting to radicalisation
In November 2015 JM set up his own YouTube channel to which he uploaded several lectures. In one of these, JM says he is using lecture notes from 'our Sheikh, Sheikh Omar Bakri Muhammad.' In another he said that it was sad that he was sitting in a chair that ought to have been occupied by Anjem or Mizanur.
In other lectures he emphasises the obligation on Muslims to make hirjah (migration to a place where Muslims can fulfil their duty to God).
[redacted] ['C'] is alleged to be an ALM member. He converted to Islam in 2006 while in prison. He subsequently met JM in prison and referred to JM as his Islamic teacher. It is alleged that JM radicalised C who was arrested in the back of a lorry in late 2014 and the Security Service allege that he was trying to travel to ISIL territory. C was charged with (among other things) engaging in preparation of acts of terrorism. He was acquitted on all counts. In 2006 C was sentenced to 8 years for threatening police with a shotgun. In 2009 C was released on licence, but he was recalled to prison in May 2013 for committing racially and religiously aggravated harassment after threatening a Muslim schoolgirl because she was associating with non-Muslim schoolgirls. C was released again in December 2013. [redacted]
JM's response to the national security case
JM's case, like IM's, is that ALM ceased to exist in 2004. He notes that Anjem and Mizanur were not charged with supporting ALM as a proscribed organisation, but with supporting ISIL. He says he is not, and has not been, a senior leader of the group. He does not feature in the Organogram. The function of the handwritten list seized in December 2015 is unclear. In any case, it cannot list people in order of their seniority in ALM since Anjem and Mizanur's names come below his own. His alleged attendance at the meeting on [redacted] was not mentioned in either of the national security cases specific to him and it is unfair for the SSHD to place reliance on it now. He has not encouraged or facilitated, through radicalisation or otherwise, travel to ISIL territory. He has not engaged in conduct amounting to radicalisation such as to amount to TRA or facilitated or encouraged TRA. He denies that the acts alleged against him are capable of amounting to TRA. He has been engaged with charity work through the organisations, [redacted] (providing advice and assistance to Muslim prisoners) and [redacted] (providing charitable donations of food, clothing and medicines for people in Syria). He had himself been imprisoned in HMP Belmarsh and had met many Muslim prisoners who had been convicted of terrorism offences, but [redacted] was not specifically or exclusively intended to assist such prisoners and many of those who were helped had been imprisoned in connection with non-terrorism offences. Any views which might be characterised as 'extremist' fall short of TRA. He says he is being tarnished by guilt by association.
JM also says he believes in the covenant of security and, as such, would not engage in attack planning in the UK. The SSHD has not alleged that he has done so.
He says that he is a believer in the concept of a Caliphate, but that is an abstract concept and is distinct and different from the Caliphate declared by Al-Baghdadi. He subscribes to a belief in da'wah, but that is not synonymous with encouraging people to join ISIL or conduct an attack in the UK. His activities with others, whom the SSHD regards as members of ALM, is because of their mutual friendship, not because of their joint membership of a banned organisation. Hijrah is likewise a mainstream Muslim tenet. It is not to be equated with travel to ISIL territory. Indeed, JM says he believes his religious duty is to remain in the UK and do charitable work and propagate Islam here. That is inconsistent with the ISIL view that Muslims should travel to its territory. Again, there is a black flag called the Shahada which is traditionally associated with Islam. It is not the same as the black flag of ISIL.
The messages which he relayed concerned lawful matters and were, in any case, of a limited nature. In some cases he warned against advertising on social media, but, as the SSHD acknowledges, there were good reasons to be concerned that if word spread it might lead to venues being cancelled or counter-demonstrations from far right groups.
The case that he was involved in providing logistical and financial support for ALM is unclear. His employment at Y (eventually becoming a manager at the [redacted]) is something he has never sought to hide. He sometimes gave voluntary help to a community centre for Muslims which operated from the basement of (the Y business address). He had to give up his work (both paid and voluntary) at Y following his arrest in [redacted]. This was because his bail conditions prohibited him from having contact with [his employer], [redacted].
The allegation of creating an environment which could prompt others to adopt ISIL's ideology or promote travel to ISIL territory is too remote to constitute TRA. In any event, he does not support ISIL's terrorist attacks, which are contrary to God's law. The photographs of him at a demonstration in front of an ISIL flag and slogans advocating a caliphate were taken in January 2014, long before allegations of ISIL brutality began to emerge. Even the bomb blasts in Baghdad in April 2014 for which ISIL claimed responsibility, were not something which he specifically remembered.
He photographed a legitimate fundraising charity event that is unobjectionable. He added a title which referred to the abstract concept of a Caliphate, not the ISIL Caliphate. His video 'The Caliphate has been Re-Established' was made shortly after the ISIL declaration and before its barbaric practices were well known. Materials which were found on his lap-top and phone were not deliberately downloaded or kept by him but were stored in cache memory and not readily available. He shared a Facebook status by Mizanur in order to prompt debate. He was not intending to endorse it. Many of the matters relied on by the SSHD date from 2014 and do not demonstrate current involvement with TRA or even at the time the TPIM was imposed.
The SSHD relied on JM's dealings with C, but this could not have been in order to radicalise C who had already been radicalised as shown by the fact that he had already been recalled to prison for committing racially and religiously aggravated harassment. In any case, [redacted], was earlier than the cut off which the SSHD herself had taken of 2014.
OBM was his Islamic teacher. JM admires and respects his views on Islam and has shared some of his talks on religious topics. He was concerned about OBM's welfare in prison in Lebanon.
JM: Condition A: Was the SSHD entitled / right to be satisfied on the balance of probabilities that JM is or has been involved in TRA?
Mr Southey relies on all of JM's response to the national security case. He also argues that Condition A is not and was not satisfied for the following reasons:
a. JM is not and was not a senior leadership figure in ALM which, anyway, was disbanded in 2004.
b. The allegations against JM (with the possible exception of allegations relating to a proscribed organisation) do not constitute TRA. They do not in law amount to allegations of facilitation or encouragement of acts of terrorism.
c. The allegations relating to 'extreme mindset' cast the net impermissibly broadly and, because they are so broad, they conflict with Articles 8 – 11 of the ECHR.
I agree with Ms McGahey that the SSHD's open evidence (in addition to the Closed evidence) shows that ALM continues to exist. Not least is the declaration by ALM posted on the Indonesian website on 7th July 2014. I agree as well that the SSHD was entitled and right to decide on the balance of probabilities that JM was a senior leader in ALM. The open evidence (supported by the closed evidence) allows that conclusion to be reached. I do not accept that there is any unfairness in the SSHD's reliance on JM's attendance at the [redacted] meeting. The police report referring to this was included in the ALM generic statements and JM had the opportunity, if he wished, to comment on or rebut this. He did not.
I agree with Ms McGahey that the SSHD was entitled and right to find that JM had encouraged and (through radicalisation) facilitated the travel of others to join ISIL. Mr Southey is right that support for the conceptual idea of a Caliphate is not, of itself, TRA. However, following the ISIL declaration in June 2014, there was not just a theoretical concept, but what at least purported to be an actual Caliphate. Thereafter, declared support for 'the', or even 'a' Caliphate would be readily understood as support for ISIL. Thus, when JM distributed the photograph of the car washing event with the slogan 'Why the oppressors will never win!! Islamic black flag still waving. Cars still being washed. Money still being raised. All united for #Islamic State' it would be readily understood as urging support for ISIL. So, too, the video with the title 'The Khilafah has been re-established' was a reference to the actual declaration of a Caliphate by ISIL, not to a theoretical concept. The recording of a talk by Anjem was preceded by JM saying that Muslims had now seen a viable alternative and advocating support for Islamic State. This, too, must have been a reference to the ISIL declared Caliphate. Subsequent to ISIL's declaration of a Caliphate, the promotion of an obligation to emigrate (hijrah) would be likely to be understood as advocating emigration to ISIL controlled territory and thereby support for ISIL. Anjem and Mizanur had likewise sought to argue at their trial that they, too, were urging support for a conceptual Caliphate rather than ISIL. In his sentencing remarks on 6th September 2016 Holroyde J. made clear that he did not accept that proposition.
I do not accept JM's evidence (certainly in the absence of oral evidence tested by cross examination) that he was unaware of the atrocities perpetrated by ISIL in the summer of 2014. The SSHD has referred to a BBC news item in April 2014 concerning one or more bomb blasts in Baghdad for which ISIL claimed responsibility. I accept the SSHD's evidence that JM, as someone with a particularly keen interest in events in the region, was likely to have been aware of this story.
JM has advanced the positive case that his belief in the Covenant of Security means that the public is not at risk of terrorism from him, nor is he likely to engage in TRA. The other evidence to which I have referred justifies the SSHD not accepting these assertions. JM's evidence has not been subject to cross examination and I, too, do not find the bare assertions in the witness statements sufficient to displace the evidence relied upon by the SSHD in relation to Condition A or Conditions C or D.
JM is relatively cautious in his public statements, but I agree with Ms McGahey that the SSHD was entitled and right to conclude that he had engaged in conduct amounting to radicalisation. The national security case for him (and for the other Respondents) said that the Security Service used this term to refer to,
'the process by which people come to support violent extremism and, in some cases, join terrorist groups. Non-violent radicalisation is not included in this definition as this form of radicalisation falls outside of the scope of Security Service investigations.'
Measures to counter radicalisation in this sense is not a disproportionate interference with JM's freedom of expression or any other Convention right.
Praise for OBM, Anjem and Rahman cannot be separated from the causes with which they were identified and which are linked to terrorism and TRA. JM's actions with C need also to be seen in the light of his other activities to which I have referred. [redacted] C may already have converted to Islam and been radicalised to an extent, but radicalisation is not necessarily a one-off event. The incident supports JB's assessment that, while JM's work with [redacted] was not itself TRA, it provided opportunities for him in that direction. The 2nd national security statement noted that the profile image for the Twitter page for [redacted] has included a photograph of OBM. Even though he is a prisoner in Lebanon, the Security Service was entitled to attribute some significance to the decision to choose a picture of him, the founder and leader of a proscribed terrorist group, to represent [redacted].
The SSHD accepts that some at least of the video imagery found on JM's devices may have been in cache memory and have been sent to JM unsolicited. That would only be the case with some of the applications which were being used. However, I recognise that the SSHD is not able to be more explicit and, therefore, I have set aside the Security Service's reliance on this imagery. However, even without that element, I am satisfied that the SSHD was entitled and right to conclude that Condition A was and continues to be satisfied.
My conclusion is reinforced by the Closed evidence.
I reach these views independently of JM's criminal convictions, although those are consistent with the conclusion that Condition A is satisfied.
JM: Condition C: was the SSHD entitled reasonably to decide that a TPIM was necessary for purposes connected with protecting members of the public from a risk of terrorism and was she entitled to conclude that that continued to be the case?
Mr Southey argues that the allegations against JM do not constitute 'terrorism' for the purposes of Condition C. With respect, his argument is flawed. He is right, as I have already observed, that the definition of 'terrorism' in TPIMA 2011 s.30(1) does not include action taken for the benefit of a proscribed organisation. But it is wrong to say that such actions are 'excluded' from the definition of terrorism, as Mr Southey submitted in his written closing submissions. As I have already commented, there is plainly an element of overlap and actions which are for the benefit of a proscribed organisation, may also come within the meaning of terrorism in TPIMA 2011 s.30(1) and TA 2000 s.1(1)-(4). Mr Southey's submissions on this aspect also appeared to be premised on the proposition that Condition C would only be satisfied if a TPIM was necessary to protect the public from terrorism by JM himself. However, that is not the case. If a TPIM is necessary to protect the public from a risk of terrorism, Condition C will be satisfied even if the terrorist may be someone other than JM.
JM submits that Condition C was not satisfied. If, contrary to his primary contention, he was involved in TRA, it was a long time ago and a TPIM is not necessary to protect the public from any further involvement in TRA or terrorism. Additionally, JM's risk was previously adequately managed by restrictive bail conditions. That shows that the more draconian terms of a TPIM are not necessary. Mr Southey emphasises that the package of measures in JM's case are at the most severe end of the lawful spectrum that is allowed.
I do not accept these arguments. On the basis of all the evidence, open and closed, in my view the SSHD was entitled reasonably to conclude that a TPIM was necessary and proportionate and that that continued to be the case.
JM: Condition D: Was the SSHD entitled reasonably to conclude that each of the measures included in JM's TPIM was necessary for purposes connected with preventing or restricting JM's involvement in TRA and that that continued to be the case?
The SSHD's reasons for including an ORM are essentially the same as they were for LG and IM.
JM explains in his statement that the ORM has led to him being separated from his wife and children. They have a wide and important web of family and community support. In addition, if his family moved to location C1 it would mean giving up their local authority accommodation for which they had waited 10 years. Before the TPIM JM played an active role as a father in his children's lives. The genetic disability of his son means that he had particular caring needs which JM helped to provide. A letter from his doctor of 9th September 2016 said that his son needed 'intensive care and supervision with regard to his developmental delays'. This had not been put before the TRG at any of its meetings. His son had been allocated a Headstart place. JM says that he would have been able to take him there each day because it was in the same building as his work place. Now that he has been relocated, his wife has had to give up the place. She does not have access to a car and the journey would take her an hour.
JM's wife has visited him in location C1 but the journey is difficult, particularly with the children. The restrictions on the use of the internet in JM's present home are difficult for his children.
Relocation has also meant that JM cannot take his mother (who is frail and ill) shopping or to her hospital appointments. He has brothers, but they work full-time.
Mr Southey argues that the TPIM has had a disproportionate impact on JM's private and family life and that of his wife and children. The SSHD failed to take the best interests of his children into account as a primary consideration when deciding to impose a TPIM with an ORM. Since the SSHD had not treated the interests of the children as a primary consideration, as she should have done, her views are bound to carry less weight and the court must strike the balance for itself, giving due weight to the judgments of the decision-maker on such matters as she did consider – see R (A) v Chief Constable of Kent  EWCA Civ 1706 at  citing Belfast City Council v Miss Behavin' Ltd  UKHL 19  and .
JM has felt isolated in location C1. He has missed family events. His requests for adjustments to the restrictions to allow him to take part in family expeditions have been refused.
JM's wife's 1st statement speaks as well of the difficulties which his relocation has caused the family. In particular, in the afternoons, after his work was finished, he was able to look after their son, while his wife continued home schooling their daughters. The children have been upset by their father's departure. Her recent pregnancy has been an extra strain for the family to bear.
The social work report from Ms Tonge says that his separation from his family is likely to cause significant detriment to the three children with 'their resulting behaviour having a negative impact on them and the integrity of the family unit as a whole with lasting and damaging effects particularly on these children.' His continued absence would also be likely to affect adversely the educational welfare of the two girls because of the increasing demands on their mother as an effective lone parent.
In his 2nd statement, JM accepts that he was separated from his family when he had previously been imprisoned. However, that had been some 7 years ago and before his son had been born.
In his 2nd statement as well, JM says that his second daughter has been referred to CAMHS by her GP [redacted].
JM's wife has, as I have said, very recently given birth to a baby girl (on Sunday 26th March 2017). If the ORM continues, it will hamper the bonding process between JM and his new child. The burden on JM's wife will also be greater now that she has an additional child for whom she has to care.
Shortly before JM's wife was due to give birth, he was moved to location C2. This was more convenient for him to see his family. C2 is far closer to his family home than C1. It is also cheaper to reach by public transport. Mr Southey submitted that, if any ORM was justified, it would be disproportionate if it was more intrusive on family and private life than necessary. If any ORM was necessary, therefore, it ought to continue to be in location C2 rather than C1. If location C2 required more stringent other measures, then JM was prepared to agree to these.
Generally, Mr Southey argues that the SSHD did not treat the best interests of the children as a primary consideration and, had she done so, the ORM would be regarded as disproportionate and certainly ORM in C1 rather than C2.
The SSHD maintains that the ORM is necessary and proportionate even though, as she recognises, it has placed a significant burden on JM and his family, a burden which is greater with the birth of their new baby. Location C1 is a substantial distance from London but, as JM accepts, it is within the maximum distance that TPIMA 2011 allows. The material submitted by JM, particularly the social work report from Ms Tonge, was considered by the TRG which, nonetheless, decided that the TPIM (with the ORM) should be maintained.
I agree with Ms McGahey that the SSHD was entitled to regard the ORM as a necessary and proportionate measure and that that continues to be the case. As was recognised, this is a substantial impediment to a normal family and private life. Nonetheless, (on the basis of all the evidence, Open and Closed) the SSHD was entitled to conclude that this was necessary for the statutory purpose and a proportionate measure. I accept as well that the SSHD was entitled to decide that Location C2 was appropriate only as a short term measure in the immediate period in advance of the recent birth (which also coincided with the hearing of this review). The SSHD was entitled to decide that as a longer term measure it was not appropriate for the statutory purposes and that reverting to Location C1 was, despite the birth of the baby and the other adverse impacts of the ORM, proportionate.
As with LG and IM the factors I mentioned in  are also relevant.
One of the requirements of the ECDM is that, before accessing a website for the first time (using a permitted computer) the Home Office's permission must first be obtained. Mr Southey argues that this causes his children, particularly his eldest daughter who is due to take her GCSEs this year, significant difficulties in completing their schoolwork when staying with their father. He submits that a prohibition on JM using his children's devices would be an adequate and proportionate alternative. Collins J. had taken the view that this was a proportionate restriction in DD v SSHD  EWHC 1681 (Admin) at  and so should I.
In his evidence, Mr Daly said that the ECDM required advance approval before websites were accessed in JM's present home. In October 2016, JM asked for approval for 17 websites and the Home Office agreed to 13 of them. It was not unrealistic to expect home schooled students (such as JM's elder two daughters) to have study plans and so to have some advance knowledge of the websites they would wish to access.
I agree that the SSHD was entitled to decide that the ECDM was necessary for the statutory purposes and is a proportionate restriction for the reasons which have been given.
Association Measure (Religious Advice)
The variation which I have required in this measure for LG and IM applies equally to JM.
Work and Studies Measure
JM says that the restrictions on him make it impossible in practice to find a job in location C1. He was offered voluntary work delivering leaflets for a fast food outlet. However, the Home Office refused permission. Mr Daly denied that that was inevitably the case. He said that there were TPIM subjects who undertook relatively full-time work and others who were in education.
I agree that the SSHD was entitled to decide that the work and studies measure is necessary for the statutory purposes. It is a proportionate restriction.
Mr Southey adopted the submissions of Mr Hickman and Mr Friedman in relation to this. The personal position of the three Respondents is not identical. Thus, for instance, JM cycles to the police station and does not seem to find the journey so laborious as LG and IM claim it to be. However, all three of them have families from whom they would be separated if they absconded. That is a factor to be taken into account. In my judgment, the differences between their situations are not such as to mean that I should distinguish between them in the variation which I will require to the reporting measure.
The package as a whole
As for LG and IM I recognise that, taken as a whole, the package of measures in JM's TPIM imposes significant restrictions on him. However, in my view the SSHD was entitled to decide that such a package was necessary and proportionate for the reasons set out in Condition C and Condition D.
The SSSHD was entitled and right to conclude that Condition A was and continues to be satisfied so far as JM is concerned.
The SSHD was entitled to conclude that Condition C was and continues to be satisfied so far as JM is concerned.
With the following qualifications, the SSHD was entitled to conclude that Condition D was and continues to be satisfied so far as each of the individual measures is concerned and so far as the package of measures as a whole is concerned.
The qualifications are that:
a. The association measure (so far as it concerns religious advice) must be varied as I have discussed above.
b. The reporting measure must be varied to include an obligation that JM reports in person at a police station within a specified time bracket on Mondays, Wednesdays and Fridays and that, within a specified time bracket, he telephones in to the monitoring company on Tuesdays, Thursdays, Saturdays and Sundays.
Note 1 I use first names as convenient shorthand since there are others with the same last name to whom I shall refer in this judgment. [Back]
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