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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for the Home Department v Rideh [2007] EWHC 804 (Admin) (04 April 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/804.html Cite as: [2007] EWHC 804 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Applicant |
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- and - |
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MAHMOUD ABU RIDEH |
Respondent |
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and |
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J |
Interested Party |
____________________
Mr Raza Husain and Mr Danny Friedman (instructed by Messrs. Birnberg Peirce) for the Respondent Mahmoud Abu Rideh
Mr Nicholas Blake Q.C. and Mr Keiron Beal (instructed by the Special Advocates Support Office) appeared as Special Advocates
Mr Rabinder Singh Q.C. and Mr Hugh Southey (instructed by Messrs. Birnberg Peirce) for the Interested Party J
Hearing dates: 8th to 11th January 2007
____________________
Crown Copyright ©
BEATSON J :
1-Introduction:
2 – The Respondent's history
3 - The terms of the Respondent's control order
"(1) Residence and curfew: You shall reside at [specified address] ("the residence"), and shall remain in the residence at all times save for a period of 12 hours between 7am and 7pm or as specified in the directions given in writing referred to at (8) below. "Residence", in the case of a flat, encompasses only that flat and, in particular, does not include any communal area either inside or outside to which any person not within the residence would have unrestricted access. "Residence", in the case of a house, encompasses only the house and does not include any outside space associated with it.
(2) Reporting: Each day, you must report to the monitoring company by telephone:
(a) on the first occasion you leave the residence
(b) on the last occasion that you return to it(c) once between 04.45 & 05.15 every morning, and(d) once between 20.30 & 21.20 every evening(3) Visitors to the residence: You shall not permit any person to enter the
residence, save for:
(a) your wife and children
(b) your nominated legal representative as notified to the Home
Office
(c ) in an emergency, members of the emergency services or health
care or social work professionals;
(d) any person aged 16 and under; and
(e) any person required to be given access under the tenancyagreement for the residence, a copy of which shall be supplied tothe Home Office.You shall not permit any other individual to enter the residence except with the prior agreement of the Home Office. In relation to those other individuals, you must supply the name, address, date of birth and photographic identity of the individual. The prior agreement of the Home Office shall not be required for subsequent visits by an agreed individual, but this does not prevent the Home Office withdrawing that agreement at any time.(4) Pre-arranged meetings outside the residence: You shall not, outside of the residence:
(a) meet any person by prior arrangement, other than:(i) that person referred to in (4)(a) above, or(ii) for health or welfare purposes at an establishment on a list provided to and agreed by the Home Office before your first visit; or(iii) for educational purposes, at an establishment identified to and agreed by the Home Office before your first attendance; or(b) attend any pre-arranged meetings or gatherings (other than attending group prayers at a mosque),save with the prior agreement of the Home Office. For the avoidance of doubt, a meeting shall be deemed to take place outside of the residence if one or more parties to it are outside of the residence.(5) Police searches: You must permit entry to police officers and persons authorised by the Secretary of State or by the monitoring company, on production of identification, at any time to verify your presence at the residence and/or to ensure that you can comply and/or are complying with the obligations imposed by this control order. Such monitoring may include but is not limited to:-
(a) a search of the residence;(b) removal of any item;(c) inspection/modification or removal for inspection/modification of any article to ensure that it does not breach the obligations imposed by this control order;(d) permitting the installation of such equipment as may be considered necessary to ensure compliance with the obligations imposed by this control order;(e) the taking of your photograph.
(6) Authority to impose temporary prohibitions and restrictions: In order to secure compliance with the obligations imposed by the control order, you shall comply with such other prohibitions or restrictions on your movement as may be required by directions given in writing at the time of service of the control order by a police officer or other person authorised by the Secretary of State. Such prohibitions or restrictions shall cease 24 hours after the giving of such directions, or on earlier direction.
(7) Communications equipment (modified 25 May 2005): You shall not:-
(a) bring or permit into the residence, or(b) use or keep (whether in or outside the residence)any communications equipment or equipment capable of connecting to the Internet or components thereof (including but not limited to mobile phones, fax machines, pagers, and public telephone and/or internet facilities), other than:-(i) one fixed telephone line in the residence; and(ii) one or more computers in the residence.Any computer permitted into the residence must be disabled from connecting to the Internet and shall not have installed any commercial, third party or bespoke encryption software programmes or packages. The telephone and any computer must be delivered up to a person authorised by the Secretary of State for inspection and removal prior to it being permitted into or to remain in the residence.It shall not be a breach of this obligation to permit:-(aa) any person specified in (4)(a) to (e) above;(bb) an individual who is allowed to enter the residence under (4) above by reason of the prior agreement of the Home Office,to bring into the residence a mobile phone, provided that any such mobile phone shall remain switched off at all times whilst you are in the residence.For the avoidance of doubt:-(cc) you may not use, nor may you permit whilst you are in the residence any other person to use, any mobile phone in the residence; and(dd) you may not connect to or use the internet at any time.(8) Notification of international departure and arrival: You must notify the Home Office of any intended departure from the UK and notify it of the port of embarkation and disembarkation. You must also notify the Home Office if and when you intend to return to the UK and to report to the Home Office immediately upon arrival that you are or were subject to this control order. The requirement to report on arrival shall continue to apply whether or not this control order remains in force at the time of your return to the UK.
(9) Bank account: You shall not maintain more than one account. Such account must be held with a bank or other approved financial institution within the UK. Details of this account must be provided to a person authorised by the Secretary of State within 14 days from the date of service of this control order or the opening of the account whichever is sooner. You must obtain statements of the account on a monthly basis and provide such statements to the person authorised by the Secretary of State within 7 days of receipt.
(10) Transfer of money/sending documents or goods: You shall not transfer
any money, or send any documents or goods to a destination outside the
UK (whether yourself or through an intermediary) without the prior
agreement of the Home Office."
4 - The issues
"The Secretary of State may make a control order against an individual if he:
(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity [defined in section 1(9)]; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."
"… any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism activity."
21. Section 3 deals with the role and powers of the court. I have referred to the requirement in section 3(2)(c) that there be a hearing, which I have described as a supervisory hearing, as soon as reasonably practicable after a control order is made. Section 3(10) of the PTA provides that at that hearing:
"… the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –
(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and
(b) his decisions on the imposition of each of the obligations imposed by the order".
(a) the obligations imposed amount to inhuman or degrading treatment and thus breach Article 3 of the Convention;
(b) the obligations imposed are disproportionate to the severe interferences caused with protected rights under Article 8 of the Convention;
(c) the Applicant has failed to discharge his duty of consultation under section 8(2) PTA; and
(d) the Applicant is in breach of common law and Article 6 obligations of procedural fairness.
5 - The Special Procedure in proceedings under the PTA
6 - The Evidence
7 - The national security case:
8 - The Process for making the control order:
1. The decision to make a control order is made by the Home Secretary on the basis of a detailed intelligence assessment by the Security Service containing closed and open evidence and proposed obligations.
2. When considering what obligations are to be imposed upon an individual, advice is taken from the Security Service, the Police, legal advisers, and from any other relevant body.
3. In the case of the Police, the officer consulted by the Home Office is DAC Peter Clarke, the National Co-ordinator for Terrorist Investigations.
4. The Applicant does not accept that he is required to provide an opportunity to make representations before making or renewing a control order.
5. Meetings on 7 and March 2005, which considered the cases of the Respondent and nine other people detained under the 2001 Act, were attended by the Home Secretary, Home Office civil servants and legal advisers, counsel, DAC Clarke, and members of the Security Service and their legal advisers.
a. The meeting on 7 March had before it submissions by officials as to the individual cases and those present explained the background to the cases and why they recommended the chosen controls to the Home Secretary.
b. The Home Office officials had information about the individuals available from the bail applications in SIAC proceedings, including information about their mental health and about their families. Paragraphs 4 and 28 of the Minutes of the meeting on 7 March record that the Home Secretary asked to what extent other members of the household would be inhibited from carrying out their lawful activity and that Sir John Gieve, the Permanent Secretary asked whether the impact of the family had been considered, and was told that this had been considered and this was reflected in a submission.
c. The meetings considered the mental health of the individuals in Broadmoor, including the fact that some had suicidal tendencies. Mr Whalley confirmed that the mental health care of those being released was being considered.
d. The Home Secretary asked about the effect of the control orders on the families.
e. The Home Office was aware that a control order would have a substantial effect on the family of the controlled person and family circumstances were considered.
f. There had been no dialogue with those under consideration or their legal representatives because the Bill which became the PTA was still before Parliament.
g. The control orders made as a result of the meetings on 7 and 8 March 2005 had a common framework but despite substantial similarities, the obligations were not identical.
6. In May 2006 the Control Order Review Group ("CORG") was established to bring together the Police, the Security Service and the Home Office on a quarterly basis, inter alia to review the orders, to ensure the obligations are still the right ones and to advise the Home Secretary on his quarterly report to Parliament. Before that there was a more informal but similar method of reviewing control orders.
a. As well as Home Office officials, including controlled persons' caseworkers, the Metropolitan Police, SO12, SO13, the Security Service and legal advisers attend CORG.
b. The controlled persons' caseworkers can, and have, raised matters concerning families which were discussed at meetings of CORG.
c. Agencies concerned with the health or welfare of children are not represented and CORG does not take active steps to investigate the position of the family.
"In relation to the three detainees in Broadmoor the Home Secretary asked whether it was the Security Service's view that they would seek to recoup or would re-engage in their previous activities. Although [he] had not seen the medical advice [Redacted name] was of the view that all would re-engage. Bob Whalley highlighted the additional risk that some of them had reported suicidal tendencies. In response to a question from Sir John Gieve, Bob Whalley confirmed that mental health care of those released was being considered."
"18. [redacted name] explained the case against Rideh and his family circumstances as per [redaction] submission of 7 March 2005.
19. The Home Secretary asked for further detail on Rideh's mental health. [Redacted name] explained that there had been mental health issues before he had been certified and SIAC had recognised that these did not affect his ability to engage in terrorist activity.
20 [redacted]"
"[Redacted name] provided a copy of SIAC's recent judgment in relation to granting bail "in principle" which provided the additional material on Rideh's mental health that the Home Secretary had requested."
1. The Respondent's medical records from his detention were available to and considered by the Home Office officials.
2. Home Office officials were in touch with Broadmoor during the period to ensure there was a care plan for the Respondent. It was not considered that his case was one in which the need to take into account the medical evidence outweighed the need to make a control order.
3. The Respondent's family circumstances were explained to the meeting on 7 March 2005.
4. The Respondent's case was reviewed in the light of the representations in his solicitors' letter dated 8 April 2005, which were considered by the Home Secretary personally
5. The Home Office has considered the representations made on behalf of the Respondent concerning particular obligations
6. The Respondent's case was reviewed early in 2006 when the renewal of the order was under consideration and in the light of the judgments in the cases of JJ and others.
7. The Respondent's case was reviewed on 10 May, 16 August and 17 November 2006 by CORG. The view at each of the meetings was that the security case in relation to him still stood and that the obligations remained necessary and proportionate.
8. The minutes of the CORG meeting on 10 May 2006 state that The Respondent's state of mental health continued to be an issue. It is stated that he was known to self-harm, had been admitted to hospital during his control orders in connection with his mental health problems and his behaviour remained unstable. The minutes refer to the replacement of the obligation to wear a tag with additional reporting obligations and that, at that time, no other variations or modifications had been requested. It is stated that "close attention should continue to be paid to Rideh's access to appropriate medical assistance".
9 The Respondent's case was reviewed in the light of the application by his solicitors on 3 July 2006 but in a letter dated 8 September 2006 the Applicant refused the application in its entirety.
1. There was no consultation with J before the control order was made or before it was renewed.
2. The Home Office agreed that it was important to know the impact on the family of a control order both when making it and when renewing it and the Home Office was aware that orders had substantial impact on families.
3. There is no system for the regular review of the impact of the control order on J or the children.
4. The Home Office were furnished with information about the position of J and the children in the letter before action dated 26 May 2005, Mrs Peirce's statement dated 10 June 2005, and her letter dated 3 July 2006.
9 - Consideration of the possibility of prosecuting the Respondent:
1. There was an exchange of correspondence between the Home Office and the Police in 2004 about prosecuting those detained under the 2001 Act and the circumstances in which the Police would and would not consult the CPS.
2. On 11 January 2005 the Home Office asked the Police and the CPS to consider whether there was sufficient evidence to mount a prosecution of any of those detained under the 2001 Act.
3. Miss Hemming, Head of the Crown Prosecution Service's Counter Terrorism Division, and a Detective Superintendent visited Thames House on 18 January 2005 and considered the case against 13 detainees with a view to whether there would be any prosecution of them.
a. The review was carried out by considering the full (i.e. closed as well as open) statements prepared by the Home Secretary for the proceedings under the 2001 Act but without reading all of the primary material against each detainee.
b. The statements were "substantial documents summarising the main case against each person and identifying where the information came from". They were similar to the statements of the Secretary of State's case for making the control order; that is with footnotes identifying the source and nature of the evidence.
c. The majority of the information relied upon in the hearings under the 2001 Act comes from sources that could not be relied upon in a criminal case. This is because it comes from intelligence sources or agents and could not be revealed publicly, from material that is legally incapable of use, or from material that would be ruled inadmissible.
d. Any material potentially admissible had already been considered and rejected or had been the subject of a criminal prosecution. It is stated that one case (No 7) had previously been reviewed by SO13 and the CPS, and that in another (No 11) that there had been a full review of all admissible evidence.
e. In the only case (No 5) where the primary material had not been considered by either the Police or the CPS (AG), Miss Hemming and the Detective Superintendent considered it and concluded that it was incapable of amounting to an offence.
f. In the case of one of the detainees (No 7) Miss Hemming records that she had asked for an enquiry to be made with the authorities in an EC country to see if they have anything to assist with regard to prosecution.
g. Subject to the outstanding inquiry referred to about case No 7, there was no identifiable material that was capable of further criminal investigation in any of the cases.
4. At the meetings on 7 and 8 March 2005 reliance was placed on the conclusion in Miss Hemming's letter of 19 January 2005 that prosecution was not possible in any of the cases.
5. The Home Office request leading to the letter of 19 January 2005 was the only occasion on which the CPS was asked to consider the possibility of prosecuting the detainees under the 2001 Act, including E and the Respondent, about whom Birnberg Peirce had inquired on 6 April 2003 and 21 November 2006.
6. The Police would only refer a case to the CPS if they believed that sufficient admissible evidence was identified to support a prosecution.
7. The Security Service made the case against an individual in a similar way to the case before the Court, but without supporting documents. The Police would have had much of the documentary evidence because of ongoing consultation with them by the Security Service during its investigation.
8. If material came to light indicating the possibility that an offence might have been committed the Security Service would consult the Police. Ad hoc consultations by the Security Service with the Police occur frequently.
9. At CORG meetings Mr Jones, from the chair, asked questions including those updating information relevant to prosecution. The Home Office considered it was for the Police to respond and to raise matters updating the position about the potential for prosecution at the meeting. Mr Jones said that updating evidence about prosecution for the underlying offences is also brought to the meeting by the Security Service.
10. CORG's quarterly reviews only considered activity in the particular quarter and not the whole case.
"MR was detained on [date]. He was the subject of a financial investigation from 1997 to 1999 but there was insufficient evidence to prosecute him for any criminal offences. Most of the material against him comes from closed or inadmissible sources that could never be relied on in a criminal prosecution."
"Based upon the evidence and intelligence which is currently available, I am satisfied that there is insufficient evidence to support a prosecution of this person for an offence relating to terrorism."
10 - The impact of the control order on the Respondent and his family
11 - The psychiatric and psychological evidence about the Respondent
12 - The justification for the individual obligations in the control order
13 - Has the Respondent been subjected to treatment contrary to Article 3?
14 - Is there a breach to the Respondent's right to liberty under Article 5?
15 - Are the decisions of the Secretary of State to make, renew and maintain the Respondent's control order flawed?
16 - Conclusion
Note 1 It was agreed that the Applicant’s closing submissions and the Respondent’s reply should be in writing. These were served on 19 and 26 January 2007. The Applicant’s closed closing submissions and the special advocates’ reply were served on 26 January and 2 February. [Back]