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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1546
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ON APPEAL FROM HIGH COURT, QUEEN'S BENCH DIVISION,
MR JUSTICE CRANSTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE GROSS
| THE QUEEN ON THE APPLICATION OF NAIK
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
James Eadie QC & Jeremy Johnson QC (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Wednesday 5th & Thursday 6th October, 2011
Crown Copyright ©
LORD JUSTICE CARNWATH :
"Dr Zakir Naik is a national of India, born in 1965. He graduated in medicine from the University of Mumbai. Since then he has become a figure of significant influence in the Muslim world, whose public appearances frequently attract crowds of many thousands. Over the past 13 years, Dr Naik has delivered more than 1,300 public addresses around the world. A particular feature of them is the associated question and answer sessions. Over 100 of his talks, dialogues, debates and symposia are available on recordings. Since 2007, he has organised an annual international peace conference in Mumbai, which now attracts over one million people. Dr Naik is the author of books on Islam and comparative religion. He has participated in symposia with leading figures of other faiths. In a list of the top 10 spiritual gurus of India, published in the Indian Express in 2010, Dr Naik was listed first. In an article published in the Sunday Express on 22 February 2010, Dr Naik was ranked 89 in a list of the 100 most powerful Indians of 2010..." (para 2)
i) In August 2001, the High Commission in Mumbai granted him a 5 year multiple entry visitor visa. He conducted public lecture tours in September 2001, twice in 2002 and twice in 2005. They appear to have passed without significant incident or concern.
ii) In July 2006 he was given a two year visitor visa, and further tours followed. His tour in August 2006 attracted some adverse publicity in relation to a proposed lecture in Cardiff. A local MP was quoted in the Western Mail as calling on Cardiff County Council "to prevent this hate-monger from having a platform for his obnoxious views". The council told the newspaper that it had no reason to suspect any risk to public security. There was a well-publicised tour in February 2007.
iii) In June 2008 he was issued with a 5 year multiple entry business visit visa. His visit over a 5 day period in late July - early August 2008 included talks on Islamic themes to gatherings of between 50-300 people, in London, Preston and Manchester. He visited the UK again in June 2009, and gave a lecture in London.
"(a) Dr Naik has made a number of statements plainly within the unacceptable behaviours policy.
(b) He has made other statements which, whether they would do so or not, were divisive and potentially damaging to community relations and were inconsistent with his assertions that his message was one of tolerance and building bridges between faiths.
(c) The revision of the unacceptable behaviours policy in October 2008 highlighted the weight of the burden on those, such as Dr Naik who have made such statements and who now seek to distance themselves from them.
(d) Whilst recognising that some recent public statements by Dr Naik have moved away from some of the past statements (and also that some of those statements were made some years ago), the Secretary of State is not satisfied that that burden has been met. She does not consider that, viewing his statements as a whole, Dr Naik has clearly, unambiguously, consistently and publicly condemned terrorist violence and repudiated his extremist views despite the many opportunities he has had to do so. She remains to be convinced that his message is a non-extremist and conciliatory one as he now asserts. Her view remains that he might continue to communicate the sorts of views he has espoused in the past were he to be admitted to the UK.
(e) In the light of these conclusions, she is not persuaded that the undertaking he has offered should cause her not to exclude him.
(f) In all the circumstances, her view remains that Dr Naik's exclusion was conducive to the public good."
She considered that any risk of possible escalation of community tensions as a result of excluding him would be outweighed by a greater risk of escalation were he to be admitted. Further, people who wanted access to his views could continue to do so through his publications and other media.
"further context to the influence statements made by Dr Naik have previously had on those engaged in terrorist related activity".
These lists are included as annexes to this judgment. It is to be noted that, of the 11 statements in annex A, only four (1, 2, 3 and 5) had been relied upon in the earlier decisions. The others were introduced for the first time in the decision of 9th August.
The power to exclude – law and policy
"(6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;"
Similarly, rule 30A(iii) (referred to in the letter of 17th June) allows the entry clearance officer to revoke entry clearance if satisfied the holder's exclusion would be conducive to the public good.
"The List of Unacceptable Behaviours
3. The list of unacceptable behaviours is indicative rather than exhaustive. It covers any non-UK national whether in the UK or abroad who uses any means or medium including:
- Writing, producing or distributing material;
- Public speaking including preaching
- Running a website; or
- Using a position of responsibility such as teacher, community or youth leader
To express views which:
- Foment, justify or glorify terrorist violence in furtherance of particular beliefs;
- Seek to provoke others to terrorist acts;
- Foment other serious criminal activity or seek to provoke others to serious criminal acts or;
- Foster hatred which might lead to inter-community violence in the UK."
Substantive legitimate expectation
"That is because, as a matter of law, nothing in the legislation or the Immigration Rules requires the Secretary of State to consider whether to exclude a person from the United Kingdom before entry clearance is decided. The grant of a visa does not require, as a condition precedent, substantive consideration of exclusion. The power of the Secretary of State personally to exclude under paragraph 320(6) of the Immigration Rules is legally distinct from the other non-conducive powers and the powers to curtail leave and to deport. Nothing done at any stage by any entry clearance or immigration officer precluded the Secretary of State from making a personal exclusion decision once she considered the matter."
"... the current Secretary of State was entitled to make a personal assessment in 2010 of whether, in her view, exclusion was conducive to the public good, given that background and drawing on the range of sources and advice available to her. She had to account for the exercise of that power, in the first instance, to the House of Commons ..." (para 56)
"Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
i) Whether Dr Naik, as an alien not physically within the country, can invoke a right to communicate his views under article 10, or whether as the judge found any article 10 rights were limited to those of his followers in this country to hear him.
ii) In any event, whether the interference with any article 10 rights was lawful and justifiable under article 10(2).
Can Dr Naik rely on article 10?
"... I return to the issue of the application of R (Al Skeini) and R (Smith) to the circumstances in the present case. In my view the territorial principle they establish means that Dr Naik is unable directly to assert article 10 rights, even in respect of rights to be exercised within the jurisdiction. However, article 10 contains an express right for others to receive the information. The imparting and receipt of information are two sides of one coin. In my view the rights to impart and receive in this context must be viewed in the same integral way in which the court must approach article 8 rights: R Beoku-Betts v Secretary of State for Home Department:  UKHL 390  1 AC 115. That is especially so in this case where it is apparent that Dr Naik's question and answer sessions are significant to his public lectures. It is the ability to directly see, hear and interact that is a feature of Dr Naik's attraction. Those who would have attended Dr Naik's events, or at least a surrogate in the form of the Islamic Dawah Centre, would have participated in the hearing before me, but for the procedural reasons indicated above. Sales J assumed that Dr Naik would be able to advance the grounds adequately without the Centre being present. That being the case it seems to me that I should treat Dr Naik as asserting their rights, and for that reason article 10 is engaged since they are clearly within the jurisdiction."
"… examined a ban imposed by the Portuguese authorities on a ship whose crew was about to launch a campaign in Portugal in favour of the decriminalisation of abortion. The ban which effectively prevented the ship from entering Portuguese territorial waters was held by the Court to amount to an interference with the applicants' right to freedom of expression." (para 29)
Reference was also made to a case to similar effect under article 9: Nolan v Russia App 2512/04 6th July 2009). The judgment in Cox continued:
"31. The Court considers that the ban on the applicant's re-entry is materially related to her right to freedom of expression because it disregards the fact that Article 10 rights are enshrined "regardless of frontiers" and that no distinction can be drawn between the protected freedom of expression of nationals and that of foreigners. This principle implies that the Contracting States may only restrict information received from abroad within the confines of the justifications set out in Article 10 § 2 (Autronic AG v. Switzerland, 22 May 1990, §§ 50 and 52, Series A no. 178). The scope of Article 10 of the Convention includes the right to impart information. The applicant is precluded from re-entering on grounds of her past opinions and, as a result, is no longer able to impart information and ideas within that country. In light of the foregoing, the Court concludes that there has been an interference with the applicant's rights guaranteed by Article 10 of the Convention. The Court will thus proceed to examine whether that interference was justified under the second paragraph of that provision." (para 31)
Justification under article 10(2)
The judgment below
"… In this particular area, unlike some other areas of immigration and asylum law, a degree of deference is due to the original decision maker. The subject matter is the good of the United Kingdom generally. That, it may be said, has strategic or overreaching elements where the Secretary of State and indeed his Entry Clearance Officers have special responsibility." (para 15)
The submissions in this court
Article 10 – the Strasbourg cases
"This war will continue as long as the Turkish State refuses to accept the will of the people of Kurdistan" (p 346i)
The editor and owner were prosecuted under the Prevention of Terrorism Act 1991. The Strasbourg court held that there had been a violation of article 10.
"(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
(ii) The adjective "necessary", within the meaning of Article 10 § 2, implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a "restriction" is reconcilable with freedom of expression as protected by Article 10.
(iii) In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was "proportionate to the legitimate aims pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient". In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts." (para 57)
"… where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression."
"While it is clear from the words used in the interviews that the message was one of intransigence and a refusal to compromise with the authorities as long as the objectives of the PKK had not been secured, the texts taken as a whole cannot be considered to incite to violence or hatred. The Court has had close regard to the passages of the interviews which, in the view of the Government, can be construed in this sense…
The Court is naturally aware of the concern of the authorities about words or deeds which have the potential to exacerbate the security situation in the region, where since approximately 1985 serious disturbances have raged between the security forces and the members of the PKK involving a very heavy loss of life and the imposition of emergency rule in much of the region… However, it would appear to the Court that the domestic authorities in the instant case failed to have sufficient regard to the public's right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them. As noted previously, the views expressed in the interviews could not be read as an incitement to violence; nor could they be construed as liable to incite to violence…" (para 61)
"Undoubtedly the language in question may be intemperate or even violent. But in a democracy, as our Court has emphasised, even "fighting" words may be protected by Article 10.
An approach which is more in keeping with the wide protection afforded to political speech in the Court's case-law is to focus less on the inflammatory nature of the words employed and more on the different elements of the contextual setting in which the speech was uttered. Was the language intended to inflame or incite to violence? Was there a real and genuine risk that it might actually do so? The answer to these questions in turn requires a measured assessment of the many different layers that compose the general context in the circumstances of each case. Other questions must be asked. Did the author of the offending text occupy a position of influence in society of a sort likely to amplify the impact of his words? Was the publication given a degree of prominence either in an important newspaper or through another medium which was likely to enhance the influence of the impugned speech? Were the words far away from the centre of violence or on its doorstep?
It is only by a careful examination of the context in which the offending words appear that one can draw a meaningful distinction between language which is shocking and offensive – which is protected by Article 10 – and that which forfeits its right to tolerance in a democratic society."
"38. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to "information" or "ideas" which are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no "democratic society". As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. It is also to be reiterated at this juncture that such exceptions and restrictions call for the most careful scrutiny on the part of the Court…
39. Moreover, in order for an interference to be compatible with the Convention, the interference must not only be prescribed by law and pursue one or more of the legitimate aims set out in the second paragraph of Article 10 of the Convention, but it must also be "necessary in a democratic society" to achieve that aim or aims. In this connection the Court has consistently held that Contracting States enjoy a certain margin of appreciation in assessing the need for interference, but this margin goes hand in hand with European supervision, whose extent will vary according to the case. Where, as in the instant case, there has been an interference with the exercise of the rights and freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict, because of the importance of the rights in question; the importance of these rights has been stressed by the Court many times. The necessity for restricting them must be convincingly established…
40. In exercising its supervisory function, the Court has to look at the interference complained of in the light of the case as a whole. In particular, it must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 of the Convention…" (emphasis added)
National security - the court's role
"that although the response necessary to protect national security was a matter of political judgment for the executive and Parliament, where Convention rights were in issue national courts were required to afford them effective protection by adopting an intensive review of whether such a right had been impugned, and the courts were not precluded by any doctrine of deference from examining the proportionality of a measure taken to restrict such a right…"
It was held that the measure was unlawful and disproportionate, in particular because it involved unjustifiable discrimination against foreign nationals.
"This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove."
"….. the court's role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility…
"…judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts."
It followed, in Lord Bingham's view, that the courts were not precluded by "any doctrine of deference" from reviewing on proportionality grounds the derogation order. He continued:
"… the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues…" (para 42)
"The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice."
Reference could also be made to many other judicial and academic discussions of this issue (see e.g. Wade and Forsyth Administrative Law (10th ed) p 308ff under the heading "Deference", referring to the "voluminous literature" on this topic). For completeness, I have also had regard to the very recent judgment of the Supreme Court in R(Quila) v Secretary of State  UKSC 45, which affirms in a different context the distinct role of the court in evaluating the proffered justification for interference with human rights: see para 44-46, per Lord Wilson.
Justification - the evidence
"For the avoidance of doubt, I wish to reiterate that I do not advocate terrorist violence, or support for extremist organisations that promote such aims. Over many years I have consistently tried to use my profile within the Muslim world to engage with other faiths; promote peace, harmony and mutual understanding, and speak against many misconceptions about Islam.
I have consistently and repeatedly condemned those responsible for the attacks on the US in 2001 ("9/11") and subsequent attacks in London and Mumbai. I have gone further and stated that I believe such acts to be contrary to the teachings of Islam and impermissible in Islam." (paras 8-9)
"properly understood in contrast to the Secretary of State's approach of fishing out individual remarks and citing them without context." (para 20)
"I could not have expressed myself more clearly. My message was that a proper interpretation of the Qu'ran leads to the conclusion that Islam condemns all forms of Terrorism and all forms of acts which kill innocent human beings." (his emphasis)
On the other hand, while condemning the 9/11 attacks themselves -
"I have always declined to pass judgment as to who bears responsibility for the 9/11 attacks because in many countries that I have visited, the available evidence remains disputed." (para 78)
i) Statement 1 came from a lecture given in Chennai in 2002. Of the statement "every Muslim should be a terrorist", the context had made clear that he was saying that he was using "terrorist" in a special sense, of bringing "terror" to "any anti-social element (… robbers, thieves, rapist or 'any criminal')":"I took care to say that I was aware of the more common use of the term 'terrorist' and to state that, used in that more common context, 'no Muslim should even terrorise a single human being'. My general purpose was to make the point that the use of labels is not necessarily useful and to show how, for example, the word terror does not always have negative connotations…"
ii) Statement 2 relating to Osama Bin Laden had been initially ascribed by Home Officials to 2006, but was in fact much older from 1998, long before the "9/11" attacks, which Dr Naik had consistently condemned.
iii) Statement 3 was part of a speech in Manchester in 2006. The extract quoted by the letter had been immediately preceded by a statement unequivocally condemning the 9/11 attacks and the bombings in Bombay and London.
iv) Statement 5, which spoke of the Jews as "the staunchest enemy" of Muslims, was part of a discussion in Mumbai in 2007, based on a specific verse of a Qu'ran which in terms refers to "Jews and Pagans" as "strongest among men in enmity to the believers". This had to be accepted as "Holy Word", but he was at pains to guide believers to its "proper interpretation", in particular "the Qur'an does not say that Jews and Muslims should fight" (Dr Naik's emphasis).
v) Statements 6 and 8, suggesting that George Bush might have been responsible for the 9/11 attacks, reflected a point of view, apparent for example from reports in the US media and in the film Fahrenheit 9/11, that the attacks might have been engineered by US politicians; they were not in themselves incitements to terrorism.
vi) Statement 9 ("pigs") reflects his teaching that Islam forbids the eating of pork. He had publicly accepted that the American people as a whole were not hostile to Islam.
"It is the curse of all substantial political leaders and religious thinkers and orators that their words may become appropriated by fanatical extremists but that cannot mean that they are the cause of the extremism… As detailed above I have categorically condemned terrorist acts."
He referred to the "sketchy" and "anecdotal" nature of the reports. For example, the one related to a person linked to the Glasgow bombing suggested no more than that he had "hoped" to invite Dr Naik to raise the profile of his group. Dr Naik did not recall any such invitation (among the thousands of similar invitations he received regularly), but if he had he would have treated it as an opportunity to convey his "message of absolute opposition to terrorism."
"48. The interference is in accordance with law in that it is regulated by and complies with paragraph 320(6) of the Immigration Rules and the published Unacceptable Behaviour policy.
49. The interference itself is relatively slight. The Claimant is not prevented from making any statement he chooses and from distributing it to whoever he chooses (including those within the United Kingdom). The only limitation is that he must make his statements from outside the United Kingdom.
50. The legitimate aims of protection of national security and the prevention of crime and the protection of the rights of others are engaged.
51. Given the importance attached to the particular legitimate aims that are being pursued and the relatively slight nature of the impact on the Claimant's freedom of expression, any interference is therefore plainly necessary for and proportionate to the legitimate aims that are being pursued. That is all the more so given the breadth of the margin properly to be afforded to the Secretary of State in this context…"
The judgment below
"In my view interference with article 10 rights in Dr Naik's case can be justified within article 10(2). First, the interference through Dr Naik's exclusion is in accordance with law in that it is governed by paragraph 320(6) of the Immigration Rules and the published unacceptable behaviours policy. They provide a predictable legal basis for the exercise of the power. That Dr Naik was given the right to enter the United Kingdom in 2008 was not based on the statements that subsequently resulted in his exclusion. Those statements were not taken into account and there was no consideration of exclusion in 2008.
Moreover, Dr Naik is not prevented from making or distributing his views through, for example, Peace TV. Those interested can obtain easy access to them through his broadcasts or the recordings of his public lectures. The limitation is that he cannot appear at public events in this country. The interaction with the audience in his public lectures is an important aspect in the expression of Dr Naik's views. Those in this country will have to experience that second-hand, through watching it take place elsewhere. While not slight, that interference with freedom of expression is in my judgment not of major account.
In his second statement Dr Naik condemns terrorism and seeks to explain the eleven statements which the Secretary of State has identified as objectionable by placing them in context. Nonetheless, it seems to me that the Secretary of State is entitled to conclude that Dr Naik's explanations unjustifiably marginalise the importance of some of the statements, use semantic arguments to avoid the import of others, and fail to grapple with the substance of others. Given the importance attached to the particular legitimate aims that are being pursued, and the nature of the impact as I have characterised it, it seems to me that the interference with freedom of expression by the Secretary of State's exclusion decision is proportionate to these aims." (paras 81-3)
Justification - conclusions
"… the Secretary of State is entitled to conclude that Dr Naik's explanations unjustifiably marginalise the importance of some of the statements, use semantic arguments to avoid the import of others, and fail to grapple with the substance of others…."
As he said, given the importance of the national security aims of the policy, the question is whether the interference with freedom of expression by the Secretary of State's exclusion decision was proportionate to those aims. On balance, and giving due weight to her special responsibility in this sphere, I conclude that the decision is justified.
LORD JUSTICE JACKSON :
LORD JUSTICE GROSS :
The Justification for Excluding Dr Naik
i) To the extent that authority is needed, this proposition enjoys the support of Farrakhan (supra), at  and  – ; whatever the doubts as to the status of Farrakhan as a precedent on the question of whether Art. 10 is engaged in the case of an alien outside the country, I do not think that such doubts weaken the authority of Farrakhan where Art. 10 is (or is assumed to be) engaged.
ii) Mr. Husain QC, for Dr Naik, contended vigorously that this was not an immigration case at all. I respectfully disagree. To begin with, I prefer to focus on the substance of the matter, rather than the label to be attached to the case. More than that, this is undoubtedly an "immigration case", at least in the sense that the SSHD was required to consider whether Dr Naik, a non-national, should be permitted entry into this country. The true analysis is that this is an immigration case but one where the exercise of immigration control overlaps with or results in the engagement of Art. 10 rights of freedom of expression. The task for the SSHD and the Courts – in their different spheres – is to consider both these important public interests.
i) The starting point is that the SSHD's decisions in this area are entitled to "great weight", to adopt, with respect, Lord Bingham's wording in A v Secretary of State for the Home Department (supra), at . For my part, I would regard this as self evident, given the subject-matter under consideration; the "cost of failure" (see  above) is a most pertinent consideration. See, further, the authorities cited by Cranston J, at  –  of the judgment.
ii) Given the nature of the decision, the SSHD must be accorded a wide margin of appreciation (or discretion). This is an area where, again adopting an observation of Lord Bingham (loc cit), "reasonable and informed minds may differ". Take, for instance, the "Prevent" strand in the UK government's counter-terrorism strategy, to which reference was made in the evidence; judgment calls of no little difficulty will be required in determining the extent, nature and termination of engagement with those of extreme views. Further and as will be emphasised below, it is of the first importance that the Court does not substitute its views for those of the SSHD; a reminder that the SSHD enjoys a wide discretion serves as a useful warning to the Court against straying into territory more properly that of the SSHD.
iii) As it seems to me (and with great respect to the extensive discussion of such matters in the literature), it matters little whether an approach which accords great weight and a wide margin of appreciation to decisions of the SSHD in this area is best described in terms of "deference" or "demarcation of functions" (Lord Bingham, loc cit). The point is the same. Put simply and whether as a matter of "deference" or "demarcation", in areas such as national security or public order, the SSHD is likely to have advice and a perspective not or not readily available to the Court.
iv) Nothing in the above observations precludes the Court from reviewing the decision of the SSHD by reference to what Carnwath LJ has termed ( above) "public law and human rights principles". Where Convention rights are involved, that review will be an "intensive review": A v Secretary of State for the Home Department, supra, headnote at p.69. Such a review would (as appropriate, see Carnwath LJ at  above) extend to the rationality, legality, procedural regularity and proportionality of a Ministerial decision. If it is necessary, which I am not sure it is, to add descriptive phrases to "intensive review", then, no doubt, intensive review will involve "the most careful scrutiny": Cox v Turkey (supra), at .
v) But, whatever the intensity of the review, it is crucial that the Court should not substitute its views for those of the SSHD. The Court does not assume the role of the decision-maker; the Court's task is and remains one of review. It follows that a measure of judicial reserve or restraint must be prudent in this sphere - serving to underline the Court's proper role and to guard against usurping, however inadvertently, the role of the decision-maker. In any event, a Court will not lightly overturn a decision of the SSHD as to what is conducive to the public good, still less a decision made by the SSHD personally.
" It was open to the government to adopt measures intended to react appropriately and without excess to the criticisms of its adversaries. Where such remarks incited violence against the state, threatening its security or territorial integrity, the state enjoyed a wide margin of appreciation when examining the need for an interference with freedom of expression. At the same time, where such views did not incite violence, contracting states could not restrict the right of the public to be informed of them by bringing the weight of the criminal law to bear on the media. "
Thus far at least, it is difficult to see that Surek adds anything to the third, fourth and fifth principles set out above. To the extent that Surek calls (at  and ) for both the wording and the context of the impugned statements to be considered, I respectfully agree and would automatically assume that such an approach is to be adopted. It cannot be right to have regard to wording taken out of context; whether, of course, the context serves to aggravate or mitigate the language used (or is neutral) will be a question of fact in each case.
i) First, the statements of principle in Cox have been accommodated within the principles I have sought to outline above.
ii) Secondly, for my part, I would be wary of reading the detailed language of Cox, at , as a statute; it is all too easy to slip from that language into substituting the Court's views for those of the primary decision-maker.
iii) Thirdly, the decision on the facts in Cox is neither here nor there.
i) It may be noted that there is no challenge on behalf of Dr. Naik to the "unacceptable behaviours" policy of 2005, as amended in 2008, set out and explained by Carnwath LJ, at  –  above. Accordingly, this policy, as such, is not sought to be impugned. A feature of the policy is that once a person is found to have engaged in the types of behaviour listed therein, there is a presumption in favour of his exclusion from the country; if and insofar as the individual claimed to have repudiated such views, the burden of proof rested on him to demonstrate that he had done so - and had done so publicly.
ii) I should indicate that I do not approach the matter on the basis that Dr. Naik's exclusion is to be treated as "not of major account", because those interested in his views can obtain them through the screening of broadcasts or recordings. In my view, Dr. Naik's impact on his audience/s is of the first importance. To such extent, I respectfully differ from the observations of Cranston J at  of the judgment.
" (a) Dr Naik has made a number of statements that plainly fell within the Unacceptable Behaviours policy."
In my judgment, the SSHD was manifestly entitled to take this view; for my own part, I would have difficulty understanding how any other conclusion could properly be reached.
"….if he [Bin Laden] is terrorising America the terrorist, the biggest terrorist, every Muslim should be a terrorist…"
Again, this statement is within the unacceptable behaviours policy; at the very least, it is capable of being read, unequivocally, as such. This statement cannot be explained with reference to policemen, robbers or anti-social elements; its message is plain. Moreover, although made before 2001, it was made in 1998 and thus (in all probability) after the murderous terrorist incidents in East Africa, resulting in large loss of life, attributed to Al Qaeda: see, para. 27(2) of the letter from the Appellant's solicitors, dated 12th July, 2010 ("the 12th July letter"). In passing, it is noteworthy that the "headline" message ("…every Muslim should be a terrorist…") is repeated, verbatim, in Statement 1, post-dating (as is common ground) 9/11.
i) Statement 6 ("It is a blatant secret that this attack on the twin towers was done by George Bush himself"), dated September 2006, would have done nothing to enhance Dr Naik's claim to the status of a serious thinker.
ii) Statement 9, quoted in August 2006 purports to present a crudely offensive syllogism; pigs are the only animal (so Dr Naik says) that invite their friends to have sex with their mates; most people in America consume pork; "many times" after dance parties they (i.e., Americans) engage in wife swapping. Dr Naik's conclusion is that "If you eat pigs, then you behave like pigs." Statements of this nature should not be dignified by detailed comment; suffice to say, Statement 9 does Dr. Naik no credit. Islam's well-understood and respected prohibition on eating pork (relied upon in paras. 117 – 119 of Dr Naik's second witness statement) does not begin to explain or mitigate Statement 9.
iii) Statements 5, 7 and 11 address Muslims and Jews. I am content, as Carnwath LJ has done (at  above) to treat Statement 7, whether or not unhappily worded, as not straying beyond legitimate political comment. For my part, however, if Statements 5 and 11 were intended to encourage inter-communal harmony, they are most curiously expressed. If Dr. Naik's intention was to allay concerns raised by a passage in the Koran (see paras. 83 – 96 of his second witness statement and esp. para. 93), a moment's reflection would have enabled him to re-structure Statements 5 and 11 to make this clear. The message realistically conveyed to a public audience by these statements may well have come within the unacceptable behaviours policy, on the ground that such views "foster hatred which might lead to inter-community violence in the UK". That message would not have been ameliorated by the fact (if known to his audience) that on other occasions, Dr Naik has vigorously condemned Hitler (second witness statement, para. 96). For my part, statements 5 and 11 entirely justify the observation of the SSHD in her 9th August decision, at para. 9(b):" He has made other statements which, whether they would do so or not, are divisive and potentially damaging to community relations and are inconsistent with his assertions that his message is one of tolerance and building bridges between faiths."
" 8. The decision to exclude has been taken having considered a large number of comments made by Dr Naik over a number of years…… The comments considered by the Secretary of State include comments referred to in paragraph 27 of …..[the 12th July letter]….. The Secretary of State is aware that the comments identified in paragraph 27(2) of ….[the 12th July letter] ….. were made before 2001 (and not in 2006). They were considered in that light. Similarly, the Secretary of State is aware of comments described as condemning terrorist violence that have been made by Dr Naik. She has noted, and accepts, that he has made a number of such statements. She is also aware of, and took into account, Dr Naik's comments about the purpose of his visit to the UK as set out in the statement of 5th June 2010; the points raised by Dr Naik's representatives in discussion with the Home Office and the points set out in the document dated 11th June 2010; and the offer of an undertaking referred to in the letter of 23rd June 2010……
9. Her conclusions on that material are, in summary, as follows:
[sub-paragraphs 9(a) and (b) have already been set out]
(c) The revision of the Unacceptable Behaviours policy in October 2008 highlighted the weight of the burden on those, such as Dr Naik, who have made such statements and who now seek to distance themselves from them.
(d) Whilst recognising that some recent public statements by Dr Naik have moved away from some of the past statements (and also that some of those statements were made some years ago), the Secretary of State is not satisfied that the burden has been met. She does not consider that, viewing his statements as a whole, Dr Naik has clearly, unambiguously, consistently and publicly condemned terrorist violence and repudiated his extremist views despite the many opportunities he has had to do so. She remains to be convinced that his message is a non-extremist and conciliatory one as he now asserts. Her view remains that he might continue to communicate the sorts of views he has espoused in the past were he to be admitted to the UK.
(e) In the light of these conclusions, she is not persuaded that the undertaking he has offered should cause her not to exclude him.
(f) In all the circumstances, her view remains that Dr Naik's exclusion is conducive to the public good."
"In his second statement Dr Naik condemns terrorism and seeks to explain the eleven statements which the Secretary of State has identified as objectionable by placing them in context. Nonetheless, it seems to me that the Secretary of State is entitled to conclude that Dr Naik's explanations unjustifiably marginalise the importance of some of the statements, use semantic arguments to avoid the import of others, and fail to grapple with the substance of others. Given the importance attached to the particular legitimate aims that are being pursued, and the nature of the impact as I have characterised it, it seems to me that the interference with freedom of expression by the Secretary of State's exclusion decision is proportionate to these aims. "
For my part, Cranston J's conclusion speaks for itself and it is one which I would be minded to adopt without more ado. As to the learned Judge's decision, it is unnecessary to add more than this:
i) I reject the criticism that Cranston J was unduly deferential to the SSHD or adopted too "hands off" an approach. Instead, Cranston J succinctly summarised the underlying weakness in Dr Naik's attempts to explain the statements, while making it clear that the Court's role was to review the SSHD's decision not to substitute its own views. Cranston J has rightly emphasised the "importance attached to the particular legitimate aims that are being pursued".
ii) It is right that, as already remarked, Cranston J approached the matter on the basis that the interference with freedom of expression was "not of major account", because those in this country interested in Dr Naik's views could continue to obtain them through recordings, broadcasts and the like – hence Cranston J's reference to the "nature of the impact". Again as already indicated that is not my approach; but any advantage accruing to Dr Naik's case by reason of the greater interference with freedom of expression (accepted by my approach), is more than cancelled out once it is appreciated that his impact on live audiences lies at the heart of the issues under consideration here. Dr Naik's words are intended for delivery to mass audiences; they are not presented for poring over by scholars, experts or officials.
i) The statements cannot be discounted as an unrepresentative sample of Dr Naik's utterances. To the contrary, they were made on a variety of occasions, pre-dating and post-dating 9/11 and for that matter 7/7 in London. The statements themselves are, at the very least, capable of being read as belying Dr Naik's assertions as to his message of peace. In any event, the SSHD's 9th August decision stated in terms that a large number of Dr Naik's comments over the years had been considered. The SSHD did not ignore that Dr Naik had made statements condemning terrorism or the stated purpose of his proposed visit to this country. Overall, however, with reference to the unacceptable behaviours policy, she was not persuaded that Dr Naik had recanted (publicly) from his views which had infringed that policy. On the material available to this Court, that was a decision eminently open to the SSHD. On any view, the SSHD was not obliged to accept uncritically statements made on behalf of Dr Naik; she was entitled to test them against what is known of Dr Naik's statements over the years; that she did.
ii) I accept that it would have been helpful if the SSHD had sought to adduce further evidence in response to Dr Naik's second witness statement. It is, however, fair to the SSHD to acknowledge both (a) that Dr Naik's second witness statement post-dated her 9th August decision and (b) that, in substance, Dr Naik's second witness statement developed the same themes previously canvassed on his behalf, albeit at greater length. In my view, in her 9th August decision, the SSHD dealt fairly and adequately with those matters – and gave "relevant and sufficient reasons" for doing so.
iii) It is worth underlining that Dr Naik's appeal has not been conducted on the basis that the SSHD has used a sledgehammer to crack a nut and that Dr Naik's pronouncements are not to be taken seriously; to the contrary, Dr Naik is (as the Judge recorded, at  of the judgment) a "figure of significant influence in the Muslim world". That has not, however, stopped Dr Naik from making Statements 6 and 9. If Dr Naik is capable of making statements such as these, I cannot see any basis for quibbling with the SSHD's conclusion that there remained a risk of Dr Naik continuing to espouse the views he has previously expressed, were he allowed entry to the United Kingdom.
iv) As it seems to me, reliance on Dr Naik's previous visits to this country goes, at least primarily, to the argument on legitimate expectation. If that argument fails (as we are agreed it must), then it does not carry any significant weight here.
The Earlier Decisions
i) The Judge held that the earlier decisions were unlawful on the ground of procedural unfairness: judgment, at  – . From that decision there has been no cross-appeal by the SSHD.
ii) Dr Naik's entitlement to complain that Art. 10 has been violated in this regard, hinges on whether, as an alien outside the country, he can establish that he enjoyed the benefit of Art. 10 rights. As already indicated, we are agreed that this is an issue best deferred unless or until it becomes necessary to decide it.
iii) By reason of the Judge's finding (recorded in i) above), I have difficulty in seeing how the SSHD can raise a defence of justification under Art. 10.2, as to the earlier decisions.
iv) However, given that I would uphold the 9th August decision of the SSHD, I likewise have difficulty in seeing that Dr Naik would be entitled to any substantive remedy in respect of the earlier decisions, even assuming that Art. 10 is engaged.
[The words in square brackets were not in the letter, but have been added to indicate the provenance of each statement, so far as apparent from Dr Naik's second witness statement]
"Statement 1: As far as a terrorist is concerned, I tell the Muslims that every Muslim should be a terrorist... What is the meaning of the word terrorist? Terrorist by definition means a person who terrorises. When a robber sees a policeman he's terrified. So for a robber, a policeman is a terrorist. So in this context, every Muslim should be a terrorist to the robber... Every Muslim should be a terrorist to each and every anti-social element. I'm aware that terrorist more commonly is used for a person who terrorises an innocent person. In this context, no Muslim should even terrorise a single innocent human being. The Muslims should selectively terrorise the anti-social element. And many times, two different labels are given to the same activity of the same individual... Before any person gives any label to any individual for any of his actions, we have to first analyse, for what reason is he doing that?" [Question and answer session following the lecture "Terrorism and Jihad – an Islamic perspective": Chennai, October 2002]
Statement 2: Beware of Muslims saying Osama Bin Laden is right or wrong. I reject them... we don't know. But if you ask my view, if given the truth, if he is fighting the enemies of Islam, I am for him. I don't know what he's doing. I'm not in touch with him. I don't know him personally. I read the newspaper. If he is terrorising the terrorists, if he is terrorising America the terrorist, the biggest terrorist, every Muslim should be a terrorist. The thing is, if he's terrorising a terrorist, he's following Islam. [Speech entitled "Misconceptions about Islam", Singapore 1998; initially attributed by Home Office officials to 2006]
Statement 3: How can you ever justify killing innocent people? But in the same breath as condemning those responsible we must also condemn those responsible for the deaths of thousands of innocent people in Iraq, Afghanistan and Lebanon. [Lecture delivered in Manchester August 2006]
Statement 4: If you are going to ask and say that based on the news that I get from the media, whether it be BBC, CNN, etc, then if I agree with that news I have no option but to label [Osama bin Laden] a terrorist, but the glorious Qur'an says... whenever you get information about something, check it out before you pass it to the second person or the third person. As far as Osama bin Laden is concerned... I cannot base my answer just on the news reports, unless the news reports are verified. But one thing I can say for sure that he was always called as a prime suspect on CNN... prime suspect number one – no proof. Based on the reports of CNN and BBC, I cannot say that he is a terrorist at all. I am neither saying he is good, and neither saying he is bad. [Question and answer session following the lecture "Terrorism and Jihad – an Islamic Perspective", Chennai October 2002]
Statement 5: Strongest in enmity towards the Muslims are the Jews and the pagans... It [The Qur'an] does not say that the Muslims should fight with the Jews... the Jews, by nature as a whole, will be against Muslims... there are many Jews who are good to Muslims, but as a whole... The Qur'an tells us, as a whole, they will be our staunchest enemy. [Question and answer session following the lecture "Is the Qur'an God's Word?", Mumbai November 2007]
Statement 6: It is a blatant secret that this attack on the twin towers was done by George Bush himself. [Question and answer session following the lecture "Is Terrorism a Muslim Monopoly?", September 2006]
Statement 7: Today, America is controlled by the Jews, whether it be the banks, whether it be the money, whether it be the power. Nobody can become a president of the USA without walking the Star of David. [Question and answer session following the lecture "Is the Qur'an God's Word?", Mumbai November 2007]
Statement 8: American citizens themselves have a hundred other hypotheses for who is the person who was responsible for September 11th. You go on to the internet... American journalists, American historians... this thing could not have been done by bin Laden... I'm not saying what they're saying is wrong, or what they're saying is right, I don't know. I'm just giving you information that you might not be aware... Some of the people even say that George Bush himself did it. [Question and answer session following the lecture "Terrorism and Jihad – an Islamic Perspective", Chennai October 2002]
Statement 9: The pig is the most shameless animal on the face of the earth. It is the only animal that invites its friends to have sex with its mate. In America, most people consume pork. Many times after dance parties, they have swapping of wives; many say, 'you sleep with my wife and I will sleep with your wife.' If you eat pigs, then you behave like pigs. [Occasion unspecified, referred to in Western Mail August 2006]
Statement 10: If a Muslim becomes a non-Muslim and propagates his/her new religion then, it is as good as treason. There is a 'death penalty' in Islam for such a person. Punishment is death. In many countries the punishment for treason is also death. If an army general discloses his army's secrets to another country then there is a 'death penalty' or life imprisonment for such a person according to the laws of most of the countries. Similarly if a Muslim becomes non-Muslim and propagates his/her new religion then there is a 'death penalty' for such a person in Islam. [Occasion unspecified, apparently from an edited interview on YouTube; referred to in Western Mail August 2006]
Statement 11: If a person does not want peace to prevail what can we do?... We have to be careful of the Jews. Not ever fight them, unless they come and fight you. That's a different thing. Imagine what's happening in Palestine, what's happening in other parts of the world, so brothers, for peace to prevail you have to follow the guidance of the Qur'an... The Qur'an doesn't say the Jews should be enemies but they will be so." [Question and answer session following the lecture "Is the Qur'an God's Word?", Mumbai November 2007]
Statement 1: Reports in India link Dr Naik's broadcasts to the perpetrators of the Mumbai terror attacks: "An examination of the [file sharing] accounts common across these four Internet sites [suspected to have been used by the Mumbai terrorists] reveals common jihadi videos, references to Mumbai and Bangalore as base locations and videos of founder and president of the Islamic Research Foundation Zakir Naik's speeches".
Statement 2: Feroze Ghaswaia, an early recruit of Mohamed Rahil Sheikh – one of those thought to be behind the 2006 Mumbai train bombings – has also been linked to Dr Naik's meetings: "Ghaswala travelled to Srinagar, hoping to meet jihadists at a religious gathering addressed by neoconservative preacher Zakir Naik in 2003. Instead, he ran into Sheikh – starting a journey which ended with his arrest in New Delhi".
Statement 3: Kafeel Ahmed, one of the terrorists behind the failed attack on Glasgow airport in 2007, reportedly hoped to invite Dr Naik to address his own group, known as "Discover Islam".
Statement 4: Najibullah Zazi, an Afghan charged with conspiracy to use weapons of mass destruction in the US, reportedly "became enchanted with the controversial Indian Muslim televangelist Dr Zakir Naik" before planning his attack.