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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Commissioner of the Police of the Metropolis v Ahsan [2015] EWHC 2354 (Admin) (07 August 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/2354.html Cite as: [2015] EWHC 2354 (Admin), [2015] WLR(D) 362, [2016] 3 All ER 160, [2016] WLR 654, [2016] 1 WLR 654 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE COMMISSIONER OF THE POLICE OF THE METROPOLIS |
Claimant |
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- and - |
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SYED TALHA AHSAN |
Defendant |
____________________
WordWave International Limited
Trading as DTI
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Daniel Squires (instructed by Birnberg Peirce & Partners) for the Defendant
Hearing dates: 24/07/2015
____________________
Crown Copyright ©
Mr Justice Cranston:
Introduction:
Background
"Whilst some material was submitted to the domestic prosecutor in respect of Babar Ahmad, none has ever been submitted in respect of Syed Ahsan. At no time has any part of the case against him been subject to consideration by a domestic prosecutor."
"[36] Certain facts relevant to Ahsan's case were set out in Mr Coppel's skeleton argument but have subsequently been confirmed in a witness statement by Mr John Davis of the Treasury Solicitor, based on information received from the CPS. Mr Davis confirms that (1) the involvement of the Metropolitan Police Counter Terrorism Command in relation to the allegations made against Ahsan by the US authorities has been restricted to providing information to the US authorities, and the Command has not conducted its own investigation of him for those matters; (2) no police investigation of Ahsan has been referred to or considered by the CPS; and (3) so far as the CPS is aware, no police investigation of Ahsan is in contemplation… There has been no relevant police investigation and no file has been passed to the CP…"
On 10 April 2012, the Strasbourg court dismissed the applications of Mr Ahsan and Babar Ahmad seeking to prevent their extradition: Application nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09. Mr Ahsan and Babar Ahmad were extradited to the US later that year. Mr Ahsan was detained by the US authorities from his arrival in the US in October 2012 until his return to the UK in August 2014. He spent a period of a year and a half in solitary confinement.
"Mr Ahsan conspired to provide and assisted the provision of material support for terrorism in three ways through Azzam.com:
(1) by assisting Mr Ahmad, Mr Ahsan assisted the solicitation of and conspired to provide funds for the Taliban regime in Afghanistan;
(2) by assisting Mr Ahmad, Mr Ahsan assisted the solicitation of and conspired to provide personnel for the Taliban regime in Afghanistan; and
(3) by assisting Mr Ahmad, Mr Ahsan assisted the solicitation of and conspired to provide physical items for the Taliban regime in Afghanistan."
During its existence, the website had sought to facilitate financial and other support for Muslims in the civil war in Bosnia and Chechens fighting in a civil war in Chechnya. The postings relating to Bosnia and Chechnya made up 98 percent of its content.
"[T]here is no sign that Mr. Ahsan's view of what is Jihad in an Islamic sense should be equated with terrorism. There is no evidence that he adopted beliefs of people who believe in terrorism, attacks on civilians. In fact, his own writings speak out against the attacks on the civilians in the tubes in London. He disagreed with 9-11. He felt that was wrong. He's rejected the views of Al-Qaida"
She added:
"[At the time of his arrest, he] had material of all kinds of views. And I would say that certainly in the months going up to the time of his arrest, to the extent they are reflected in his personal, private journal, they indicate a man who is interested in his poetry and writing poetry, who is a moderate person who has peaceful views… In all, you appear and strike me as a man who is sensitive and curious, intelligent and talented… [T]here are many letters in support of you [which] speak about you and your character as one which is 'not violent and not aligned with the views of people who are violent."
"You were very young at the time [of the offences]. And in my view, your culpability is low…. you never intended to, never planned to, never wanted to be involved in what I call invalid or terroristic Jihad… You strike this court as a gentle person… And I don't see you in any way involved in [the future in] anything that could smack of terrorism or material support of conduct which we describe as terrorism."
"[T]he sentence reflects that Ahsan was involved in serious conduct by assisting Azzam Publications while it was supporting the Taliban, at the time the Taliban was harbouring Osama bin Laden. However, Ahsan's minor role in the conspiracy, as well as the fact that all of his assistance occurred prior to 9/11, supports the court's finding that his involvement was of a less serious nature. Ahsan's history and characteristics inform the court's conclusion that the likelihood of recidivism is low."
Dr Deeley's report
"[is] likely to have a severe adverse impact on [Mr Ahsan's] mental health… [with] the imposition of a more restrictive regime for prisoners in the detainee unit at Long Lartin prison in December 2008… [Mr Ahsan's] interpretation of and response to these circumstances was influenced by his Asperger Syndrome (with associated rigid thinking style, propensity to ruminate, difficulty identifying and managing emotions) and past history of depression. In this context Mr Ahsan developed a severe depressive illness which included persistent thoughts of self-harm and suicide… Mr Ahsan currently exhibits most of these symptoms of depression to a mild to moderate degree, with the potential for deterioration given his past history. As noted Mr Ahsan's Asperger syndrome is associated with a rigid thinking style, a propensity to ruminate obsessively, and difficulty identifying and managing emotions, while his past history of severe depression in prison indicates an ongoing vulnerability to recurrence of severe depression under conditions of perceived stress. Mr Ahsan currently ruminates about his circumstances and has a strong and preoccupying sense of having been unjustly treated by the British authorities. It is likely that imposition of the notification restrictions would intensify his sense of being unjustly treated, increase feelings of powerlessness and hopelessness about his situation; adversely affect his employment and marriage prospects, which will deprive him of important sources of esteem and support; cause distress and stigma to his family, straining family relations and further exacerbating his sense of injustice. All of the above factors are likely to lead to a significant deterioration of his mental health. The general fact of being subject to notification requirements is likely to be perceived by Mr Ahsan as unjust and lead to obsessive ruminations and deterioration of mood and other symptoms of depression as outlined above. Compliance with the specific notification requirements are likely to be perceived by Mr Ahsan as specific instances of injustice and mistreatment by the British authorities which are likely to intensify his ruminations and worsening of depressive symptoms. For example, the requirement to periodically notify the police of his address, and any permanent or temporary change of address; or to notify the police of travel plans prior to travelling, is likely to be associated with anxious rumination, a sense of grievance, frustration, and powerlessness when anticipating these requirements, with an associated increase in anticipatory anxiety, along with lowering of mood and other symptoms of depression. Mr Ahsan is also likely to perceive visits by the police to his house to check the accuracy of the information he has provided to be an intrusion of privacy and violation of his rights, leading to anxious grievant ruminations, anticipatory anxiety, and worsening of mood along with other symptoms of depression. Rumination about and anticipation of compliance with these conditions is likely to significantly contribute to worsening of depression and anxiety, in addition to the actual fact of complying with specific conditions."
"In my opinion any adverse impact of the notification requirements on Mr Ahsan will be more severe than on an average person of reasonably good mental health. This is because Mr Ahsan's Asperger syndrome and recurrent depressive disorder make him more vulnerable to significant further deterioration in mental health compared to a person of reasonably good mental health under conditions of psychosocial stress (such as imposition of notification requirements)."
"The probable immediate adverse impact of the imposition of notification requirements is set out in my reply to question 2 above. Over the longer term, imposition of the notification requirements is in my opinion likely to be associated with further significant deterioration of mental health…
It should be noted that by virtue of his Asperger Syndrome and history of depression Mr Ahsan is less able to manage stressful circumstances compared to an average person of reasonably good mental health… In light of his history of suicidal ideation and acts when depressed he must be considered to be at high risk of attempted suicide should he develop a severe depressive illness (which in my opinion is likely should notification requirements be imposed)."
"In my opinion Mr Ahsan would find it difficult to comply with the notification requirements because (i) severe depression is likely to make it harder for Mr Ahsan to organise himself and be sufficiently motivated to comply with the conditions; (ii) satisfying the conditions (e.g. attending police stations, informing police of his travel plans) is likely to become increasingly aversive as time passes, motivating avoidance behaviour (e.g. a very strong sense or feeling of not wanting to comply with the conditions, which could motivate non-compliance with conditions).
In my opinion being returned to prison for non-compliance would have an extremely adverse effect on Mr Ahsan given the strong sense of already having been unjustly treated by the British authorities. I would be concerned about a very severe deterioration in mental state, including an increased risk of suicide, if Mr Ahsan was returned to prison for non-compliance."
Legal framework
"(1) A "corresponding foreign offence" means an act that –"
(a) constituted an offence under the law in force in a country outside the United Kingdom, and
(b) corresponds to an offence to which this Part applies.
(2) For this purpose an act punishable under the law in force in a country outside the UK is regarded as constituting an offence under that law however it is described in that law.
(3) An act corresponds to an offence to which this Part applies if –
(a) it would have constituted an offence to which this Part applies by virtue of section 41 if it had been done in any part of the United Kingdom, or corresponds to an offence to which this Part applies.
(b) it was, or took place in the course of, an act of terrorism or was done for the purposes of terrorism."
"(6) If on an application for a notification order it is proved that the conditions in sub-paragraphs (2), (4) and (5) are met, the court must make the order."
Commissioner's application
Ground 1: corresponding foreign offence
"The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: per Lord Diplock in Jones v. Wrotham Park Settled Estates [1980] AC 74, 105-106."
The Parliamentary intention behind this part of the 2008 Act is clear. By inadvertence Parliament failed to give effect to that purpose in the drafting of Schedule 4 but the substance of the provision it would have made, albeit not the precise words, is clear. Thus in my view, taking a purposive approach, and even assuming that all elements of Mr Ahsan's offending occurred here, the offences he was convicted of in the US are corresponding foreign offences.
Ground 2: unlawful exercise of discretion
Ground 3: Article 3/Article 8 ECHR
"[13]… Thirdly, it is important to concentrate on the actual requirements. They do not remotely resemble the stringent conditions which attached to many control orders for example, the 16-hour curfew in AV's case [2009] EWHC 902 (Admin). This claimant was released on licence on 4 February 2009. Since then, he has had to attend police stations in Birmingham once a year, each time for about 30 minutes. He has never informed the West Midlands Police that he intends to stay away from his home address or that he intends to travel abroad. The fact that he is subject to the statutory notification requirements is stored on the Police National Computer for the purpose of monitoring his compliance with the notification requirements but any information provided by him is not… Police officers in plain clothes have visited his home, initially once per month but now less frequently. They have stayed for about five minutes each time but have not entered the premises. Whilst, as is now conceded on behalf of the Secretary of State, all this amounts to an interference with the claimant's private life for the purposes of article 8, it is essentially "light-touch" when set against the legitimate aim of the prevention of terrorism, or (in article 8 terms) "the interests of national security" and "the prevention of disorder or crime". It is important to keep in mind the gravity of the disorder or crime which is being sought to be prevented.
[14] Fourthly, even if it is the case that there may be exceptional cases of "no significant future risk", their possible existence does not preclude a general requirement of relatively moderate interference in a context such as this. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] AC 1312, para 33 Lord Bingham of Cornhill said:
"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 H 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 claimant, I do not think that it can be said that either the scheme or its application to the claimant is disproportionate. I do not consider that the statute is incompatible with article 8 or that the claimant is a victim within the meaning of section 6 of theHuman Rights Act
1998."
Conclusion