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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Irfan, R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 1471 (14 November 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/1471.html Cite as: [2012] WLR(D) 328, [2013] 1 QB 885, [2013] HRLR 6, [2013] 2 WLR 1340, [2012] EWCA Civ 1471, [2013] QB 885 |
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ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
DIVISIONAL COURT, Laws LJ and Owen J
Ref: CO/4638/2011
Strand, London, WC2A 2LL |
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B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE MUNBY
and
LORD JUSTICE TOMLINSON
____________________
THE QUEEN ON THE APPLICATION OF MOHAMED IRFAN |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Mr Jonathan Swift QC and Ms Melanie Cumberland (instructed by Treasury Solicitors) for the Respondent
Hearing date : 23 October 2012
____________________
Crown Copyright ©
Lord Justice Maurice Kay :
"17. A person subject to the notification requirements must notify the police of the information specified in section 47(2), including his date of birth, national insurance number, home address and any other address where he regularly stays, and any information prescribed by regulations made by the Secretary of State. The person must also notify the police of any other address not previously notified where he stays for a total of seven days in any year …
18. The Act requires that notification be made by attendance in person at a local police station and orally notifying a police officer or other person authorised to take notifications … On attending the station, the person is bound to accede to any request by the police officer or other person to whom notification is made to take his fingerprints or photographs …
19. Notification of the information made in section 47(2) must be made in accordance with the following time frame:
(a) initial notification – with the period of three days beginning with the day on which the person is dealt with in respect of the offence in question [but disregarding time spent serving his sentence];
(b) periodic renotification – within a year's time of each and every previous notification;
(c) notification of changes – if the person changes his name or home address he must notify the police of this. He must also notify the police on being released from custody. On any such occasion he must renotify the police of all the information stated in section 47(2).
20. By section 52, the Secretary of State is empowered to make regulations requiring a person subject to the notification requirements who leaves the United Kingdom to notify the police of their departure, and of any subsequent return. The relevant regulations are the Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009 … They apply in respect of any proposed absence from the country lasting three or more days. The person must disclose the intended date of departure, destination and point of arrival … Further, regulation 3 requires him to disclose, so far as he holds it, the following information: point of arrival in each successive country he intends to travel to; name of carriers he intends to use to leave the UK and to travel between countries; address for first night outside the UK; and intended date and point of arrival of return to the UK. Where the person knows the information more than 7 days in advance of his trip, he must provide it 7 days in advance unless he has a reasonable excuse for not doing so. Otherwise it must be provided no later than 24 hours prior to departure … He must notify the police within three days of his return to the UK. The method of notification is, again, by attendance in person at a police station. …
21. It is an imprisonable offence … to fail without reasonable excuse to comply with any of the notification requirements, (including under the Regulations). The offence carries a maximum of five years' imprisonment on conviction upon indictment.
22. The period for which persons are subject to the notification requirements are set out in section 53 and are as follows:
(a) 30 years in the case of a person aged 18 on conviction and sentenced to 10 years custody or more, or imprisonment/detention for public protection under the Criminal Justice Act 2003, section 225;
(b) 15 years in the case of a person aged 18 on conviction and sentenced to 5 years custody or more, but less than 10 years;
(c) 10 years in any other case.
There is no provision for review of the continuing necessity for the notification requirements, or for them to be discontinued early. They apply automatically to any applicable offender and continue in all cases until the end of the prescribed period."
The appellant's offence
"In April of 2006 you were heard on the probe describing electrical goods. You were seen to be carrying goods. You assisted Khan in his shopping. You accompanied Khan to the airport. It is clear to me that you and Khan had few, if any, secrets from one another. He confided in you. You gave him advice on goods. You went shopping together. You are described by your own counsel as the camp follower of a fanatic. You did, however, approve of his views. Extremist literature was found at your house. I conclude that … you would not have become involved in terrorist activity but for Khan's drive and overbearance … I accept you never travelled to Pakistan. I accept that you would not act as you did again. You acted as assistant and confidante of Khan.
I accept that whilst you ran errands for him, at 32 years of age with a GNVQ to your credit, it is difficult to describe you merely as an errand boy. But Khan's personality was clearly stronger than your own. You were doubtless led into criminality by him as were all your co-defendants."
I infer that the four year sentence embraced a discount of two years in relation to the guilty plea.
Discussion
"the only issue raised by these appeals is a general one. Does the absence of any right to a review render lifetime notification requirements disproportionate to the legitimate aims that they seek to pursue?"
Having reviewed the domestic and Strasbourg jurisprudence, he said (at paragraph 51):
"This case turns … on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their Article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans."
He resolved this "one critical issue" in the following passage (at paragraph 57):
"I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high standard of review."
It is clear that the reference to "an appropriately high standard of review" is to a threshold "as to the time that an application could first be made, the frequency of the applications and what has to be proved in order to succeed on the review": paragraph 39.
"In my judgment … the reasoning of the Supreme Court in F as regards the notification requirements there in issue cannot simply be read across to what I regard as the very different context of the measures in hand in the present case. As Mr Hunt, a Grade 6 civil servant in the Office of Security and Counter-Terrorism at the Home Office says [in] his witness statement:
'Terrorism offences … are regarded as having characteristics that set them apart from other offending. Terrorism is driven by a variety of factors, including ideological beliefs … individuals convicted of terrorism offences have, by their actions, shown themselves to be susceptible to terrorist ideology and to taking an active role in terrorist ideology.'
It seems to me … that the potential grip of a violent fanaticism is something much less comprehensible and therefore much more remote than, for example, the power of sexual obsession. I do not think that it can confidently be said of terrorist offences, as Lord Phillips said of sexual offences …
'… it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further … offence can be discounted to the extent that continuance of notification requirements is unjustified.'
The terrorist offender may be driven by a political ideology, a religious fervour or, as in this case, the precepts of a much stronger personality than his own; or by any combination of these. He may be willing to put his own life second. These possibilities must entail a wide range of unpredictable outcomes."
He was nevertheless prepared to accept (at paragraph 33) that there may be "some wholly exceptional cases" where a terrorist offender can be said to pose no significant risk for the future.
"… legislation cannot be framed so as to address particular cases … A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial."
In my view, that resonates here. Given the relatively moderate intrusion caused by the interference with the private lives of convicted terrorists generally, and having particular regard to the interference with the private life of this appellant, I do not think that it can be said that either the scheme or its application to the appellant is disproportionate. I do not consider that the statute is incompatible with Article 8 or that the appellant is a victim within the meaning of section 6 of the Human Rights Act 1998.
Conclusion
Lord Justice Munby:
Lord Justice Tomlinson: