Lord Justice Lloyd Jones:
- This is the open judgment in the five sets of proceedings before the court. Those proceedings may be summarised as follows:
(1) The statutory review, pursuant to section 3(10) of the Prevention of Terrorism Act 2005 ("the PTA") of the control order made by the Secretary of State for the Home Department ("SSHD") on 13th January 2011 and served on CC on 14th March 2011 (PTA/1/2011).
(2) The statutory review, pursuant to section 3(10) of the PTA of the control order made by the SSHD on 15th April 2011 and served on CF on 11th May 2011 (PTA/10/2011).
(3) The statutory review, pursuant to section 9 of the Terrorism Prevention and Investigation Measures Act 2011 ("the TPIM Act") of the terrorism prevention and investigation measures notice ("TPIM notice") signed by the SSHD on 16th January 2012 and served on CC on 21st February 2012 (PTA/03/2012).
(4) The statutory review, pursuant to section 9 of the TPIM Act of the TPIM notice signed by the SSHD on 19th December 2011 and served on CF on 3 January 2012 (PTA/20/2011).
(5) CC's appeal, brought pursuant to section 16(3) of the TPIM Act, against the Secretary of State's refusal of his request made under section 12(2) of the Act to vary certain measures specified by his TPIM notice (PTA/14/2012).
- Section 1(1) of the PTA defines a "control order" as:
"an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism".
- Section 2(2) of the TPIM Act defines "terrorism prevention and investigation measures" as requirements, restrictions and other provisions which may be made in relation to an individual by virtue of Schedule 1 of that Act.
- By virtue of both section 15(1) of the PTA, and section 30 (1) of the TPIM Act, "terrorism" has the same meaning as in the Terrorism Act 2000 which provides, at section 1 (in relevant part):
"(1) In this Act 'terrorism' means the use or threat of action where -
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
(2) Action falls within this subsection if it –
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section –
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other then the United Kingdom and
(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom."
- Section 1(9) of the PTA and section 4(1) of the TPIM Act both define "terrorism- related activity" as follows:
"…involvement in terrorism-related activity is any one or more of the following –
(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;
(c) conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
(d) conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c);
and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."
- Under section 2(1) of the PTA, the Secretary of State:-
"… may make a [non-derogating] 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; 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."
- Section 1(3) of the PTA empowers the Secretary of State to impose under such a control order:-
"…any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity."
- By section 2(1) of the TPIM Act, the Secretary of State may impose specified terrorism prevention and investigation measures on an individual if conditions A to E are met. Those conditions are set out at sections 3(1)-(6):
"(1) Condition A is that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity (the "relevant activity").
(2) Condition B is that some or all of the relevant activity is new terrorism-related activity.
(3) Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.
(4) Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual's involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.
(5) Condition E is that –
(a) The court gives the Secretary of State permission under section 6, or
(b) The Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission.
(6) In this section "new terrorism-related activity" means –
(a) If no TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring at any time (whether before or after the coming into force of this Act);
(b) If only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force; or
(c) If two or more TPIM notices relating to the individual have been in force, terrorism-related activity occurring after such a notice came into force most recently."
- Section 8 of the PTA and section 10 of the TPIM Act place certain requirements as to consultation and review on the Secretary of State before making a control order or TPIM notice respectively, and on the chief officer of the relevant police force after the control order or TPIM notice has been made.
- The powers of the Secretary of State to impose obligations under a TPIM notice differ significantly from the corresponding powers under a control order. In particular, there is no power under a TPIM notice to require relocation.
The function of the court on a review
- Section 3(10) of the PTA sets out the function of this court in considering the substance of the control order as follows:-
"(10) On a hearing in pursuance of directions under subsection 2 (c)…, 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."
- In the case of both control orders and TPIMs the court is required to review the decisions of the Secretary of State that the relevant conditions were met and continue to be met. Accordingly, the court must consider the matter both at the date of making the orders and at the date of the hearing. (MB v Secretary of State for the Home Department  QB 415; TPIM Act 2011, section 9(1).)
- Proceedings under section 3(10) of the PTA are civil proceedings. In Secretary of State for the Home Department v. MB  QB 415 at paragraph 53 the Court of Appeal stated that:
"It is implicit in the scheme that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order."
The same is true of TPIM notices.
- With regard to the court's function of review of a control order, in MB the Court of Appeal distinguished between two elements of the Secretary of State's decision: first, whether there are reasonable grounds for suspecting that the controlled person is or has been involved in terrorism-related activity and, secondly, whether it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make the order.
- In relation to the first question to be determined by the court, i.e. whether the decision that there were reasonable grounds for suspecting that the controlled person is or has been involved in terrorism-related activity is flawed, the Court of Appeal considered that this is a question of objective fact. It considered that the court could not review that aspect of the decision "without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of a control order is or has been involved in terrorism-related activity." (MB at paragraphs 58 and 60.) However, it also made clear that:
"The issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may involve considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on balance of probabilities and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof." (MB at paragraph 67.)
- In relation to the second question in control order cases, i.e. whether the Secretary of State's decision on necessity was flawed, the Court of Appeal in MB observed:
"Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligations that it is necessary to impose may depend upon the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the Secretary of State and the demands on those resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance." (at paragraph 63.)
- I consider that the same approach applies to the Court's review under section 9(1) TPIM Act of the Secretary of State's decisions on the necessity of TPIM notices.
- Prior to repeal, the powers of the court in control order cases were set out in sections 3(12) and 3(13) of the PTA:-
"(12) If the court determines, on a hearing in pursuance of directions under subsection 2(c) … that a decision of the Secretary of State was flawed, its only powers are –
(a) power to quash the order;
(b) power to quash one or more obligations imposed by the order; and
(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.
(13) In every other case the court must decide that the control order is to continue in force."
However, paragraph 3 of Schedule 8 to the TPIM Act provides that the sole purpose of PTA section 3(10) hearings following commencement of the TPIM Act is to determine whether the control order or any obligation imposed by a control order should be "quashed".
- The court's powers are similar in relation to TPIM notices. Section 9(5)-(7) of the TPIM Act provide that:
"(5) The court has the following powers (and only those powers) on a review hearing-
(a) power to quash the TPIM notice;
(b) power to quash measures specified in the TPIM notice;
(c) power to give directions to the Secretary of State for, or in relation to,-
(i) the revocation of the TPIM notice, or
(ii) the variation of measures specified in the TPIM notice.
(6) If the court does not exercise any of its powers under subsection the court must decide that the TPIM notice is to continue in force.
(7) If the court exercises a power under subsection (5)(b) or (c)(ii), the court must decide that the TPIM notice is to continue in force subject to that exercise of that power."
II. PRELIMINARY ISSUES.
The requirement of "new terrorism-related activity".
- As Collins J. observed in Secretary of State for the Home Department v BM  EWHC 714 (Admin) at paragraph 15, "new" is a somewhat odd adjective to use where there has been no previous TPIM, because section 3(6)(a) makes it clear that in such circumstances the Applicant, in deciding whether Condition B is satisfied, may take account of terrorism-related activity occurring at any time before or after the coming into force of the TPIM Act. Condition A can be satisfied by a reasonable belief in past terrorism-related activity. However, the age of the terrorism-related activity will be relevant in considering whether Condition C is satisfied since an order will not be necessary unless there is a need to protect the public from a risk of terrorism.
- Furthermore, it follows from section 3(6)(a) and paragraph 4 of Schedule 8, which provides that the Secretary of State's powers under the 2011 Act "are not affected by a control order having been made in relation to that individual", that provided the conditions set out in section 3 are satisfied, the Secretary of State is entitled to impose measures by a TPIM notice on an individual in respect of activities which wholly or in part founded the making of the control order. (See Secretary of State for the Home Department v AM  EWHC 1854 (Admin) per Mitting J. at paragraph 13.)
- In the present case, therefore, where no previous TPIM has been made against CC or CF, it is open to the Secretary of State to take account of terrorism-related activity occurring at any time, when considering whether conditions A and B are satisfied.
Reasonable grounds for suspecting / reasonable belief.
- Under the PTA the Secretary of State was empowered to make a control order if, inter alia, she had reasonable grounds for suspecting that an individual is or has been involved in terrorism-related activity (section (1)(a)). By contrast one condition for making a TPIM is that the Secretary of State "reasonably believes" that the individual is or has been involved in terrorism-related activity.
- The difference between suspicion and belief is well established in the authorities and the effect of the language in the TPIM Act is clearly to impose a higher requirement than that which previously applied in the case of a control order. In A and others v Secretary of State for the Home Department  1 WLR 414 Laws LJ stated at paragraph 229:
"Belief is a state of mind by which the person in question thinks that X is the case. Suspicion is a state of mind by which the person in question thinks that X may be the case".
Similarly in R v Saik  1 AC 18 Lord Brown observed at paragraph 120 that "to suspect something to be so is by no means to believe it to be so: it is to believe only that it may be so".
- However, Mr Friedman on behalf of CF goes further and submits that the different language employed in the TPIM Act further enhances the burden on the Applicant. He submits that "the adoption of the reasonable belief test by Parliament for application in these proceedings requires that at least the foundation of past facts upon which the belief is predicated must be proved on the balance of probabilities".
- In cases where the issue is whether there are reasonable grounds for suspicion, the authorities establish that this is an objective question of fact and that the court in reviewing the decision must itself decide whether the facts relied on amount to reasonable grounds for suspicion. However, in considering whether there were reasonable grounds for suspicion the court might have to "consider a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on balance of probability and some of which are based on no more than circumstances giving rise to suspicion". (Secretary of State for the Home Department v MB  QB 418, at paragraphs 60, 67, cited above.) In other words there is no requirement to prove underlying facts to a particular standard.
- The question which arises here is whether the adoption of the higher standard of reasonable belief requires proof of underlying facts to the standard of the balance of probabilities. I can see no reason in principle why this should be so. In this regard I note that in A and others v. Secretary of State for the Home Department  1 WLR 414 Neuberger LJ's analysis of the non-applicability of the standard of proof to underlying facts applies equally to reasonable grounds for suspicion or belief.
"371. In these circumstances, I think that there are two problems with the appellants' criticism that SIAC failed to apply a proper standard of proof. The first is that, in deciding whether there are, as a matter of fact, reasonable grounds for suspicion or belief, SIAC is not necessarily concerned with primary facts, and, to that extent, there is no need to establish a primary fact on the balance of probabilities. For instance, subject to consideration of its reliability (which may raise all sorts of factors) a newspaper report relating to the activities of an appellant may be taken into account by the Secretary of State under s. 21 or by SIAC under s. 25. In such a case it is not necessary for SIAC to be satisfied on the balance of probabilities that the reported facts are true; it would merely need to be satisfied, on the balance of probabilities, as to the existence of a newspaper report. (I should emphasise that SIAC may, even if so satisfied, give no or little weight to the contents of the newspaper report, if it thought it right to do so.) Secondly, when considering whether there are reasonable grounds for the relevant belief or suspicion, SIAC need not, as I have sought to explain, be concerned about satisfying itself that, on the balance of probabilities, the belief for suspicion is justified, or that it shares the belief or suspicion. It is merely concerned with deciding whether there are reasonable grounds for such belief or suspicion.
372. The question of whether someone is an international terrorist can be said to be a matter of fact, whereas the question of whether he is a threat to national security is itself a matter of assessment. However, the question of whether there are reasonable grounds for suspecting a person is a terrorist and believing he is a threat to national security is a question of assessment."
- The submission on behalf of CF is substantially the same as that made by Mr Otty QC, who appears in these proceedings on behalf of CC, before Collins J. in Secretary of State for Home Department v BM  EWHC 714 (Admin). Contrary to Mr Friedman's submission, there is nothing to indicate that the point was not fully argued on that occasion. The matter is dealt with fully in the judgment. Collins J. expressed his conclusion in the following terms:
"Mr Otty has submitted that if facts have to be established to find a reasonable belief, they must be established at least on the balance of probabilities. He submitted that "belief involves a judgment that a state of affairs legally exists" citing words of Kerr L.C.J. in paragraph 14 of his judgment in Northern Ireland in Re Alexander  NIQB 20. But that observation does not mean that the existence of the state of affairs must be established to any particular standard. It is entirely consistent with the view that for the belief to be reasonable it must be shown that material provided justified the belief that the state of affairs did exist whether or not subsequent investigation or testing in court shows that it did not. The reality is, as I have said, that to found a reasonable belief that a subject is or has been involved in TRA and that a TPIM is necessary does not involve the requirement to establish involvement in specific TRA to any higher standard than that which can properly give rise to such a belief. No doubt some facts which go to forming the belief will be clearly established, others may be based on an assessment of the various pieces of evidence available. But there is certainly no requirement that particular TRA needs to be established to the standard of at least more probable than not." (at paragraph 34).
- I entirely agree with this analysis. Furthermore, it seems to me that Mr Friedman's reliance on SIAC cases is misplaced. While it is correct that in Zatuliveter v. Secretary of State for the Home Department, SC/103/2010, 29 November 2011, SIAC applied the standard of balance of probabilities to findings of past fact, that was a case where no standard was prescribed by the legislation. By contrast the standard prescribed in the case of a TPIM is one of reasonable belief and, for the reasons given by Collins J, I do not consider that this imports any requirement of proof of involvement in any specific TRA to any higher standard than that which can properly give rise to a reasonable belief.
The failure of CC and CF to give oral evidence
- I consider that the court's approach to the failure of CC and CF to give oral evidence which could be tested in cross-examination must reflect the fact that following AF (No. 3) a subject must be given a sufficient statement of the allegations against him. Thus, Lord Hope in AF (No. 3) observed:
"The judge is entitled to take the view that a person who really does have a case to answer will make every effort to provide his special advocate with the information he needs to make the challenge." (at paragraph 86.)
- In Secretary of State for the Home Department v. BM  EWHC 714 (Admin) Collins J. cited this passage from Lord Hope and concluded, at paragraph 22, that a failure to deal with allegations to the extent which is possible having regard to the disclosure given can be taken into account against a subject. Collins J. referred to the fact that BM had made a number of statements in relation to the control order and TPIM but had chosen not to give evidence which could have been tested in cross-examination. His position was therefore very similar to that of CF in the present proceedings. Collins J. continued:
"His failure to give evidence cannot be used against him to strengthen the applicant's case. There is no burden on him to establish that the allegations are untrue. But I am entitled to attach less weight to an untested statement, particularly if I am satisfied that explanations could but have not been given to deal with any material which has been disclosed." (at paragraph 23.)
Collins J. returned to this matter at paragraph 36:
"This is not a situation such as applies in a criminal case where a defendant is entitled to say nothing and play his cards close to his chest. While he does not have to explain himself, BM's failure to do so when he could can properly be used to form the view that an adverse conclusion is justified. This approach echoes what Lord Hope said in paragraph 86 of AF (No. 3) supra. It does not shift the burden to BM to show that an allegation is not to be relied on but reflects the reality that an adverse view has been formed by the applicant based on all material available to her and BM has the opportunity to explain if he can why that view is not appropriate. A failure to take steps reasonably open to him to deal with any of the allegations can therefore mean that the adverse view will be maintained." (at paragraph 36.)
- I consider that this approach is correct and fair.
III. NATIONAL SECURITY CASE AGAINST CC.
Involvement in terrorism-related activity.
- On behalf of CC it is submitted that the decisions of the Secretary of State to make a control order and a TPIM in respect of CC were flawed in that she had no reasonable grounds for suspecting or believing (respectively) that he had been involved in terrorism-related activity.
- The Security Service assesses that CC is linked to a group of six British nationals who received terrorist training from Al Qaida operatives, Saleh Nabhan and Harun Fazul in Somalia in 2006. It assesses that the group returned to the United Kingdom in late 2006 and early 2007 and has evolved into a well-established and prolific extremist facilitation network, actively supporting extremist associates in East Africa. The network consists of a UK-based group and an East Africa-based group. The UK-based group supports the activities of the associates in Somalia and also seeks to recruit and radicalise further individuals. The UK-based group maintains contact with the East Africa-based group to co-ordinate the transfer of money, equipment and individuals to Somalia.
- For the reasons set out in my closed judgment in this matter, I have come to the clear conclusion that the Secretary of State had and has reasonable grounds for suspecting or believing (respectively) that CC has been involved in terrorism-related activity. In particular, the evidence before the Secretary of State supports that conclusion in the following respects:
(1) CC is closely linked to the network described above.
(2) CC travelled to Somalia where he received terrorist training in 2008 from experienced Al-Shabaab operatives. CC attended a terrorist training camp in Kamsuma, Southern Somalia, from 2008 onwards in preparation for fighting along side Al-Shabaab.
(3) CC fought on the front line in Somalia in support of Al-Shabaab.
(4) CC facilitated the travel of several individuals from the United Kingdom to Somalia to enable them to take part in terrorism-related activity. He was involved in facilitating the attempted travel of Mohammed Aden (September 2008) Mustafa Ferole (June 2009) and the travel of Mohammed Sharif Nur to a training camp (August 2009).
(5) CC facilitated the support of the UK-based network for terrorism- related activity in Somalia. The network, which includes Ibrahim Magag and Jama Hersi, has had access to money, false passports and documentation, as well as equipment. CC was involved in procuring funds for terrorism-related activity.
(6) Between 2008 and late 2010 CC was engaged in procuring weapons for use in furthering his terrorism-related activity, including fighting and attack plans.
(7) CC played a role in planning attacks in Somalia and overseas. CC was involved in an attack plan with Saeed Mohamed and Mohammed Ali Sharif Nur intended for the Juba Hotel in Mogadishu, Somalia in August 2010 and he was willing to participate in a terrorist attack.
(8) Shortly before his arrest CC was involved in attack-planning with Hersi. These plans were potentially intended for western interests in Somaliland.
- CC has failed to deal in his witness statements with the allegations against him, other than to deny them and to claim that he has been the victim of false allegations about his purpose in travelling to Somaliland, and he has not given evidence. Rather, his response has been limited to the submission made by his counsel that "a host of the most serious allegations against him must be immediately set aside as either having been the subject of inadequate disclosure or because put no higher than allegations of possible – rather than reasonably believed – conduct." (Closing Submissions paragraph 76.) Disclosure in this case has been exhaustively considered in a series of interlocutory hearings, including one before me. There has been no appeal against the decisions made in those hearings. I have kept disclosure under review throughout the substantive hearing and I am satisfied that CC's complaint of inadequate disclosure is totally lacking in substance. The appropriate disclosure has been made so as to permit CC to respond.
- The Secretary of State has made clear that she no longer relies on the Somaliland interviews of CC. The Schedule 7 interviews of CC have been held to be ultra vires. (R (CC) v. Commissioner of Police of the Metropolis  EWHC 3316 (Admin).) In the course of the hearing it was suggested that the Schedule 7 interviews were not admissible in these proceedings. However, this point was never fully developed. As a result, in my evaluation of the evidence I have excluded from consideration the Somaliland interviews and the Schedule 7 interviews. Furthermore, I am satisfied that, if the Secretary of State had approached the matter on this basis, the weight of the other evidence is such that she would inevitably have come to the same conclusion.
- For the reasons set out in my closed judgment I consider that the Secretary of State was entitled to conclude on the basis of the evidence before her that each of these allegations was made out to the required standard. I consider that the Secretary of State had reasonable grounds for suspecting and believing that CC has been involved in terrorism-related activity. Indeed, I consider that the national security case against CC is overwhelming.
- The question for consideration here is whether the Secretary of State was reasonably entitled to conclude that it was and remains necessary, for purposes connected with protecting members of the public from a risk of terrorism, for a control order or TPIM in these terms to be imposed on CC. (Section 2(1)(b) PTA; section 3(3), TPIM Act.) This matter must be considered both at the date of making the order and the date of the hearing.
- For the reasons set out in my closed judgment I consider that the Secretary of State was clearly entitled to conclude that it was necessary to impose a control order and, subsequently a TPIM on CC. In coming to this conclusion I have had regard to the strength of the evidence against CC and the nature of his involvement in terrorism-related activity.
- In the open hearing, Mr Otty QC on behalf of CC, submitted, correctly, that the test of necessity is a strict one. He went on to submit that it is not met in the case of the three individual measures challenged by CC which also form the subject matter of his appeal, namely:
(1) A refusal to remove condition 10.1 of the TPIM which requires CC to report daily to Acton Police Station;
(2) A refusal to amend Condition 1.2 of the TPIM which prohibits CC from using the garden of his residence during his required overnight residence period (9.00 pm – 7.00 am)
(3) A refusal to permit CC to attend prayers at the local mosque during his required overnight residence period (9.00 pm – 7 am).
Mr Otty submitted that it is clear on the evidence that the use of a control order and TPIM are not the only means available to control the risk presented by individuals such as CC and that the availability of alternative covert means of surveillance is highly relevant to the court's consideration of the issue of necessity.
- While a degree of deference to the expertise of the Security Service in deciding the measures necessary to protect the public is appropriate (Secretary of State for the Home Department v. MB  QB 415), the court will nevertheless be vigilant to ensure that these extraordinary measures are necessary.
- I regret that it is not possible to set out my consideration of each of the heads of appeal in this open judgment. For the reasons set out in my closed judgment I have come to the conclusion that, in all the circumstances, the Secretary of State was and remains entitled to conclude that each of the existing obligations is necessary and proportionate.
- Accordingly, I dismiss the appeal of CC brought pursuant to section 16(3) of the TPIM Act. Furthermore, I conclude that the Secretary of State was reasonably entitled to consider that it was and remains necessary and proportionate, for purposes connected with protecting members of the public from a risk of terrorism, for a control order and a TPIM to be imposed on CC in the terms imposed.
IV. NATIONAL SECURITY CASE AGAINST CF
- On behalf of CF it is submitted that the Secretary of State's decisions to make a control order and a TPIM in respect of CF were flawed in that she had no reasonable grounds for suspecting or believing (respectively) that he has been involved in terrorism-related activity.
- The Security Service assesses that CF was also linked to the group of six British nationals with which CC was associated and which has evolved into an extremist facilitation network.
- For the reasons set out in my closed judgment, I have come to the clear conclusion that the Secretary of State had and has reasonable grounds for suspecting or believing (respectively) that CF has been involved in terrorism-related activity. In particular, the evidence before the Secretary of State supports that conclusion in the following respects:
(1) In 2008 CF attempted to travel to Afghanistan to fight "Jihad" and engage in suicide operations. This attempted travel was with an associate Mohammed Abushamma who is also assessed to be an Islamist extremist. Whilst CF was acquitted (following his absconding from bail) at a criminal trial where he was charged with offences contrary to section 5(1)(a) of the Terrorism Act 2006 arising out of his attempted travel in 2008, there is clear evidence that CF had sought to travel to Afghanistan for terrorism-related activity.
(2) CF undertook terrorist training in Somalia after June 2009, having travelled to Somalia for Islamist extremist reasons in June 2009, following his absconding from bail during the criminal trial in the United Kingdom. CF attended a terrorist training camp in Somalia and was involved in fighting alongside Al-Shabaab.
(3) CF provided advice on travelling to Somalia to others and attempted to recruit fighters in the United Kingdom for fighting overseas, including wanting to assist Hisham Kelifa's travel to Somalia in 2010 for terrorism-related activity.
(4) CF was engaged in fund-raising activities for Al-Shabaab.
(5) CF was potentially involved in attack planning when, shortly before his arrest, he was involved with CC and Jama Hersi's attack plans to target Western interests in Somaliland.
- CF's counsel informed the Court at the start of the substantive hearing that CF was undecided as to whether to give oral evidence. In the event, he decided not to do so. In his fourth witness statement, produced during the hearing, CF explained that having given this decision very careful thought leading up to the hearing and having listened to the hearing for the first two days, he felt that it was too difficult for him to give evidence. He stated that he finds it very difficult to talk about the past events, particularly the situation in relation to Somaliland, in relation to the control order and TPIM and in relation to his family. He stated that he is suffering from stress and is paranoid. He stated that he suffers from pericarditis, a viral heart condition. He had concluded that he could not put himself through giving evidence. However, I consider that there was no satisfactory explanation for CF's failure to give oral evidence.
- Furthermore, I accept the submission of the Secretary of State that it is plain that CF has lied in the course of these proceedings. Mr O'Connor draws attention to the following matters:
(1) Having previously denied that he had had any contact with his family in the whole time that he was in Somalia (Second witness statement of CF, paragraph 16), he now states that he did have contact with a limited number of members of his family on around four or five occasions (Third witness statement of CF, paragraphs 2-3).
(2) In his first witness statement CF stated that he had not seen Nur since before he left the United Kingdom in 2008 and, quite possibly 2007 (First witness statement of CF, paragraph 253). However, in his third witness statement CF states that he did see Nur in the neighbourhood occasionally and he thinks that he played football with him (Third witness statement of CF, paragraph 10).
I also consider that he has lied in respect of certain other matters addressed in my closed judgment. I accept the submission on behalf of the Secretary of State that these lies have an important bearing on the credibility of CF.
- In summary, it is submitted on behalf of CF as follows:
(1) The assessment in relation to what the Security Service assesses to be CF's attempt to travel to Afghanistan in 2008, even if made out to the required standard, in itself would not come close to justifying a control order or a TPIM.
(2) There is nothing in the Afghanistan allegations to link CF to the network.
(3) The Somaliland assessment is in its own terms insufficient to meet the statutory tests and it is based on unreliable and inadmissible evidence (i.e. the Somaliland interrogations and the Schedule 7 interviews) as well as ignoring evidence of CF's character and his account of his activities in Somalia.
(4) The allegations relating to attempting to assist the travel of his sisters and Hisham Kelifa to Somalia are insufficient to constitute terrorism-related activity.
(5) There has been inadequate disclosure.
- The submissions on behalf of CF proceed on the basis of examining each allegation in isolation. However, these matters have to be considered as a part of the entire national security case against CF. When the evidence is approached on this basis and having regard to the evidence in support of the allegations which is considered in detail in my closed judgment, it is clear that the statutory tests are satisfied.
- The Secretary of State has made clear that she no longer relies on the Somaliland interviews of CF. There was some argument before me as to whether the Schedule 7 interviews of CF were ultra vires or admissible in these proceedings. These points were never fully developed. As a result in my evaluation of the evidence I have excluded from consideration the Somaliland interviews and the Schedule 7 interviews. Furthermore, I am satisfied that, if the Secretary of State had approached the matter on this basis, the weight of the other evidence is such that she would inevitably have come to the same conclusion.
- So far as the complaint of inadequate disclosure is concerned, disclosure has been the subject of a series of interlocutory rulings which have not been appealed. Furthermore, I have kept disclosure under review throughout the substantive hearing. I am satisfied that appropriate disclosure has been made to the Respondents in accordance with the principles in AF (No. 3).
- I have come to the clear conclusion that, while CF may not have operated at the same level within the network as CC, CF was not merely involved in the network but played a substantial role. This conclusion follows from a consideration of the matters set out above. While it may be the case that CC was more deeply involved in the terrorism-related activity of the network than was CF, CF's involvement was undoubtedly real and substantial. I am entirely satisfied that the Secretary of State was and remains reasonably entitled to hold a reasonable suspicion and a reasonable belief that CF had engaged in terrorism-related activity.
- The question for consideration here is whether the Secretary of State was reasonably entitled to conclude that it was and remains necessary for purposes connected with protecting members of the public from a risk of terrorism for a control order or TPIM in these terms to be imposed on CF. This matter must be considered both at the date of making the order and the date of the hearing.
- Here, Mr Friedman submits on behalf of CF that he does not and did not pose any appreciable risk to the public so as to justify a control order or TPIM. He draws attention, in particular, to the alleged events in Somaliland, to CF's current medical and psychological condition and his family ties in the United Kingdom. Furthermore, he submits that the network could not regard CF as a reliable or a sufficiently covert contact.
- For the reasons set out in my closed judgment, I consider that the Secretary of State was clearly entitled to conclude that it was necessary to impose a control order and, subsequently, a TPIM on CF. In coming to this conclusion I have had regard to the strength of the evidence against CF and the nature of his involvement in terrorism-related activity.
- In his fourth witness statement, served during the proceedings before me, CF complains about a number of the obligations to which he is currently subject under his TPIM. Mr Richard Eyre has addressed these matters in his second witness statement dated 16th July 2012. Furthermore, CF's counsel in their closing submissions made detailed submissions both in relation to the necessity for the measures in general and in relation to the necessity for specific measures.
- While I accept that, having regard to her expertise in this area, a degree of deference must be paid to the Secretary of State, the court will be vigilant to ensure that obligations imposed are necessary and proportionate to the end to be achieved. In the case of obligations that are particularly onerous or intrusive the court should give intense scrutiny to the necessity for each of the obligations imposed and explore alternative means of achieving the same result. (MB at paragraphs 64-5.)
- However, a difficulty arises here in that, as Mr Friedman accepts, the majority of the specific measures of which complaint is now made by CF in this regard were not explored with Mr Eyre or DA by CF's counsel. As a result, to that extent, the Secretary of State's position that the measures, individually and cumulatively, are necessary and proportionate, was not tested. The situation which arises is similar to that which confronted Beatson J. in Secretary of State for the Home Department v. E  EWHC 233 (Admin). There, the judge wished to consider whether there were alternative and less onerous means of achieving the intended result. He observed:
"The difficulty is that, … neither Mr Jones nor J was cross–examined about the continuing necessity of any of the individual obligations to which E is subjected. Since the Applicant's witnesses were not challenged about the necessity of the individual obligations, there is no material before me upon which I can conclude that the less restrictive alternatives I have considered would be adequate to meet E's assessed risk. There is accordingly no material to set against the Secretary of State's decision that all the obligations remain necessary as part of the "intense scrutiny" referred to by the Court of Appeal. Bearing in mind the "degree of deference" which the Court of Appeal has stated must be given to the decision of the Secretary of State as to the necessity of the individual obligations imposed, I have concluded that this is not a case in which it can be said that the Secretary of State's decision is flawed." (at paragraph 296.)
- Furthermore, had these matters been put to the witnesses in the open hearing, the Special Advocates might have considered it appropriate to pursue them in closed hearing. As a result, I am considerably hampered in evaluating the necessity and proportionality of the obligations of which CF complains.
- Mr Friedman makes the general submission that the "package of obligations" does not take sufficient account of the following considerations: that CF is neither a first tier nor a second tier personality, that his personal and medical circumstances demand humane treatment beyond medical necessity and that he has experienced considerable isolation. It is also said that if the UK authorities were involved in his ill-treatment in Somalia they should assist his rehabilitation. I am satisfied that the Secretary of State has formed an accurate view of the status of CF within the network. Furthermore, it emerged from the questions put by Mr Friedman to Mr Eyre that appropriate account has been taken of the medical and psychological condition of CF and his family circumstances throughout the currency of these orders. Mr Eyre made clear that these considerations were weighed against the necessity of public protection.
Overnight Residence Measure
- CF is subject to an overnight residence measure which requires him to be at his residence between the hours of 9.00 pm and 7.00 am.
- Mr Friedman submits that such a curfew is not permitted by the TPIM Act. He submits that a clear and unambiguous statutory authorisation is required for such a restriction and that the statute does not provide it. I am unable to accept this submission. Schedule 1, paragraph 1 is headed "overnight residence measure" and provides that the Secretary of State may impose "a requirement, applicable overnight between such hours as are specified, to remain at, or within, the specified residence." In Secretary of State for the Home Department v. BM  EWHC 714 (Admin) Collins J, while observing that this is a singularly unhelpful provision, considered that it is necessary to consider the purpose of the provision and to determine what would be considered in common parlance as overnight. He thought it should bear some relationship to the hours between which most people would regard it as reasonable to think that people might be at home, the evening having come to an end. He considered (at paragraphs 51-2) that this did not extend beyond the period 9.00pm to 7.00am. I agree.
- Mr Friedman then submits that this obligation is unnecessarily severe and that, at the absolute minimum, CF should be allowed to attend sunset, morning and night prayers. These matters were not put to Mr Eyre. I note that the Secretary of State has modified this measure to permit CF to attend the night prayer. CF complains in his fourth witness statement that the effect of the current measure is that he has to leave his parents' house at 8.00pm to be at his residence in time. However, it appears from Mr Eyre's witness statement that CF lives 20 minutes' walking distance from his parents' house and therefore I do not accept CF's claim. I have had regard to the evidence in closed hearing in relation to CC's overnight residence measure. In all the circumstances I consider that the CF's overnight residence measure is necessary and proportionate and that the decision to impose and maintain it is not flawed.
Electronic Communications Measure
- Obligation 9.1 prohibits CF from possessing any equipment capable of connecting to the internet and any equipment capable of storing digital data. CF complains that it is disproportionate for him to be prevented from using his iPod and Sony PSP. When this was raised, the Secretary of State stated that both an iPod and a PSP are capable of storing digital data and that a PSP has integrated wireless capability. Counsel for CF speculate that the reason for the objection is that they could be used or adapted to provide a covert means of communication but submit that no relevant terrorism-related activity is alleged against CF that would justify such a prohibition. So far as the latter point is concerned, as a matter of principle it is not necessary that there should be evidence of the subject having engaged in the specific activity to which the prohibition relates. It is sufficient that it is necessary to prevent such an activity. More generally, these matters were not put to DA or Mr Eyre and, in these circumstances, I am unable to conclude that the decision to impose and maintain the obligation was flawed.
- It is submitted on behalf of CF that it is unnecessary and disproportionate for him to have been subject to a general association measure. Paragraph 8.2 of the TPIM provides in relevant part:
"You must not meet any other person (including by attending any meeting or gathering) unless:
… (b) you have notified the Home Office of the name and address of the person and the time and location of the meeting or gathering at least two working days before the first time you meet them; …"
First, Mr Friedman submits that this measure is unlawful because it operates to require, in effect, prior approval of all meetings and that that is not permitted by Schedule 1, paragraph 8(2) which provides:
"The Secretary of State may, in particular, impose any of the following requirements –
(a) a requirement not to associate or communicate with specified persons, or specified descriptions of persons, without the permission of the Secretary of State;
(b) a requirement to give notice to the Secretary of State before associating or communicating with other persons (whether at all or in specified circumstances);
(c) a requirement to comply with any other specified conditions in connection with associating or communicating with other persons".
I consider that the procedure followed by the Secretary of State in this regard is expressly permitted by paragraph 14 of Schedule 1.
- More to the point, to my mind, is the submission on behalf of CF that the requirements imposed on him are unnecessary and disproportionate. Here I have in mind the observations of Mitting J. in Secretary of State for the Home Department v. AM  EWHC 1854 (Admin) that such provisions are bound to have a substantial inhibiting effect and that a measure which resulted in a significant degree of social isolation would be difficult to justify. Moreover, as Mitting J. observed (at paragraph 30) one objective must be to encourage a change in outlook by the subject of such an order and to that end he should be encouraged to lead as normal a life as possible. On behalf of CF it was submitted that CF "leads an extremely isolated existence, exacerbated by his psychological frailty and fear" and that there have been unjustified refusals to allow CF to spend time with his family at weddings and for Eid.
- I note that the prohibition in paragraph 8.2(b) of the measure applies only prior to the first time of meeting the person and that it does not apply at all in the case of a meeting at CF's residence. Furthermore, on 12th July 2012 this measure was amended without the consent of CF. The existing provision in (b) is maintained in the case of meeting an individual or individuals but a separate provision is included in the case of attending a meeting or gathering, in which case the notification obligation applies only to information relating to persons CF expects to be there. It is a great pity that these matters were not explored with the witnesses and that there was no debate as to possible alternative measures. In these circumstances I am unable to conclude that the decisions of the Secretary of State to impose and maintain these measures are flawed. However, without expressing any view on the merits, I would urge the lawyers for the Secretary of State and for CF to discuss further possible amendments to this measure.
Work or Studies Measure
- The TPIM includes a work or studies measure, as did the control order previously. Mr Friedman submits that it should only be in exceptional cases that an order should prevent a subject from accessing education or training. In particular he complains of the refusal of the Secretary of State to permit CF to participate in an access course in science for health practitioners. Mr Eyre explains in his second witness statement that the Home Office considered that the course could have provided CF with information, material or equipment that would be of use to someone wishing to undertake terrorism-related activity. Contrary to the submission of Mr Friedman, the fact that no allegation of any such terrorism-related activity has been made against CF is beside the point. Secondly, in this regard, CF complains of the refusal of the Home Office to permit him to work for a company called Ozone Media as a sales executive, warehouse operative or customer services assistant. Mr Eyre explains in his second witness statement that this work would have involved extensive access to and use of a large number of electronic communication devices at different locations but that the Home Office was willing to consider requests for permission relating to a training course at Barnet College which included the use of computers and the internet. None of these matters was raised with the witnesses. In the circumstances, I am unable to conclude that the decision of the Secretary of State to impose and maintain these measures is flawed.
Tag / Reporting Measure
- In April 2012 CF was required to wear a new GPS tag. Mr Friedman submits, first, that this tag has made the TPIM measures more onerous because the tag is larger than the previous one, causing CF increased levels of anxiety and embarrassment and requiring him to be relatively stationary for up to two hours a day while it is recharged. I have seen samples of the old and the new tag. The new tag is larger but I do not consider that it is more embarrassing or inhibiting than the old tag. I note that Mitting J. came to the same conclusion in Secretary of State for the Home Department v. AM at paragraph 32. Moreover, I accept the evidence of Mr Eyre, which was not challenged, that charging the tag will normally take between 30 minutes and one hour, that it can be done more or less frequently than twice a day, provided that it is not allowed to run flat, and that it can be charged while the subject is asleep.
- Secondly, Mr Friedman complains that the fitting of the new tag represents an increase in the restrictions in circumstances where there is no new risk of terrorism-related activity. I consider that the fitting of the new device was an effective way of ensuring compliance with other measures. It was introduced as a result of developments in technology and not any perceived increase in risk. I consider that its introduction was necessary and proportionate.
- Thirdly, Mr Friedman complains that the increased capability of the new tag has not resulted in the lifting of other restrictions other than the requirement to telephone on entering and leaving the residence. In particular, he submits that the new tag makes the requirement of reporting to the police station unnecessary or at the least far less important. A corresponding submission was made on behalf of CC. That matter was argued in closed session. The reasons which have led me to reject that submission in the case of CC and which are set out in my closed judgment, apply equally in the case of CF. I regret that it is not possible to set out those reasons in my open judgment.
- Finally in this regard, Mr Friedman suggests that, contrary to the evidence of Mr Eyre, the new tag was introduced across the board without consideration having been given to each individual case. While it is correct that Mr Eyre stated in cross-examination by Mr Friedman that discussions about the impact of location monitoring on the necessity of other measures did take place as part of the discussion of introducing that new technology but that that may not have been repeated at every review meeting, Mr Eyre had made clear earlier in his evidence that consideration was given in each individual case as to whether the fitting of the new tag was necessary and proportionate.
Obligations under the control order against CF
- Mr Friedman makes the very general submission that the court should declare unlawful the more onerous obligations imposed by the control order on CF, namely the requirement for CF to relocate to Norwich, the prohibition on meetings and the imposition of a geographical boundary. The only aspect of this submission that was raised with the witnesses was the cross-examination of Mr Eyre as to whether it was necessary and proportionate for CF to be required to return to Norwich on 23 December 2011 despite his medical condition and the fact that the control order was about to expire on 6 January 2012. Mr Eyre's evidence was that he had pressed the police on whether they were absolutely sure that the doctors were happy for CF to be on his own in Norwich and was assured that they were. Arrangements were made for the police to make welfare visits to CF and for CF to be able to raise health issues with the monitoring company. Mr Eyre said that he was aware that CF was about to be served with a TPIM. He said that advice received on how to manage CF's national security risk was weighed against his welfare and the judgment arrived at was that he should return to Norwich. I consider that a satisfactory explanation. Beyond that, these matters were simply not canvassed with the witnesses as they should have been if these submissions were to be advanced. In these circumstances I am unable to conclude that the decisions of the Secretary of State to impose and maintain these measures were flawed.
- For these reasons and for the reasons set out in my closed judgment, I conclude that the Secretary of State was reasonably entitled to consider that it was and remains necessary and proportionate, for purposes connected with protecting members of the public from a risk of terrorism, for a control order and a TPIM to be imposed on CF in the terms imposed.
V. ABUSE OF PROCESS
The Respondents' case on abuse of process
- CC and CF were detained by Somaliland authorities in Burao on 14th January 2011 and thereafter detained in Hargeisa Prison until 13th March 2011 when they were removed to the United Kingdom where they arrived on 14th March 2011. Both CC and CF make a series of allegations in relation to their treatment during this period and in relation to their removal to the United Kingdom which found their applications that the control orders and TPIMs made against them should be quashed on grounds of abuse of process.
- In the closing submissions on behalf of CC the core allegations of fact are summarised as follows:
(1) The Security Service was aware of CC's presence in Southern Somalia since 2007 and yet took no steps to seek his extradition or arrest prior to December 2010, despite viewing him as a serious threat to national security.
(2) On becoming aware by 22nd December 2010 of CC's impending travel to Somaliland, the Security Service saw such travel as an opportunity to bring restrictive measures against him either in Somaliland or in the United Kingdom.
(3) The Security Service, either alone or with the United Kingdom Special Forces, then conducted a joint operation with Somaliland authorities to detain CC.
(4) The Security Service either knew that the planned operation had no basis in the law of Somaliland or Somalia and/or international law, or at best was recklessly indifferent to such legality and took no steps to ascertain whether it had any such basis. Given what must have been appreciated as to the risks of abuse following detention, serious breaches of United Kingdom criminal law may also have occurred.
(5) The Security Service then participated actively in the interrogation of CC, despite knowledge he had been abused and that he remained exposed to a risk of further abuse. Again, serious issues as to breach of domestic and international law as well as local law arise.
(6) The Security Service knew from the outset that there were real problems facing any prosecution of CC in Somaliland because of the absence of available evidence and its preferred option from the outset was (or the very least swiftly became) that he be forcibly returned to the United Kingdom so that he could be placed under a control order.
(7) The Security Service advocated that course of forced return with the Somaliland authorities, despite knowing deportation to the United Kingdom might, or would, be unlawful if CC's preferred option was to remain in Somalia. Again the UK authorities either knew deportation was unlawful or were recklessly indifferent as to whether this was the case.
(8) Together with other UK agencies the Security Service then facilitated the removal itself, by permitting the grant of travel documents, paying for CC's return flight and ensuring his supervision first by Somaliland authorities and then by Emirate authorities.
(9) CC was in fact subjected to an unlawful arrest, unlawful abuse on arrest, unlawful detention and unlawful deportation. He was the victim of breaches of both local law and international law and the UK authorities, through at least the Security Service, knew this to be the case or were recklessly indifferent as to whether this was so.
(10) But for the unlawful conduct to which he has been subjected, CC would not be in this jurisdiction to face these proceedings and neither a control order nor a TPIM would have been served upon him.
- In the closing submissions on behalf of CF the seven stages at which it is submitted that unlawful conduct by the United Kingdom occurred are summarised as follows:
(1) The UK liaison with security services or other officials in Somaliland prior to the Respondents apprehension on 14th January 2011.
(2) The apprehension on 14th January 2011 during which UK personnel were involved.
(3) The period between the apprehension on 14th January 2011 and arrival at Hargeisa Prison on 15th January 2011 during which UK personnel may have remained involved.
(4) The interrogation and detention in Hargeisa prison between 15th January and 12th March 2011 during which UK personnel provided questions, shared evidence and may have been present on or nearby the prison site.
(5) The removal from Somaliland to the United Kingdom via Dubai on 13th and 14th March 2011 which is an act of an unrecognised State that cannot be recognised by a UK court and is otherwise not in accordance with Somaliland law.
(6) The conduct of the Schedule 7 interviews in Heathrow airport on 14th March 2011 where it was known the Respondents had recently suffered ill treatment and arbitrary detention.
(7) The Ministerial submissions to the Secretary of State prior to the decision to apply for a control order on 12th April 2011 and/or the application to Silber J. with regard to CF's control order on the 13th April 2011.
In addition, CF adopts the submissions on behalf of CC.
- In his interlocutory judgment of the 9th December 2011,  EWHC 3647 (Admin), Ouseley J. ruled that the Court has jurisdiction under the PTA to hold that control order proceedings are an abuse of its process, that the allegations made by CC and CF, if made out, raise a "perfectly arguable case" that the orders should be quashed on that ground, and that there is sufficient material along with the inferences which could be drawn for the "plausibility threshold to have been passed". The proceedings under the TPIM Act had not yet commenced but the judge considered that the same conclusions applied.
- In a further interlocutory judgment in this matter dated 29th June 2012,  EWHC 1732 (Admin), Ouseley J. held that, in general, the disclosure obligations identified by the House of Lords in AF (No.3) did not apply in the abuse of process proceedings. The judge went on to consider whether, having regard to the reference in the speech of Lord Phillips, at paragraph 68, to the need to consider whether there is any other matter the disclosure of which is essential to the fairness of the trial, further disclosure was in principle essential for fairness given what the Respondents say in evidence and the nature of the allegations. He concluded that it was not. He also noted that he could not preclude the trial judge, with a more detailed knowledge of the case, as the hearing evolves from taking a different view on what is essential for fairness. However, as matters then stood he was satisfied that no further disclosure was required.
Preliminary issue – Burden of proof
- A preliminary issue has arisen as to the burden of proof on this application. It is clear from the authorities that, in general, on an abuse of process application the burden of proof lies on a party alleging abuse of process and that the standard of proof is the balance of probabilities. (See, for example, R v Hounsham  EWCA Crim 1366 at paragraph 24). However, Mr Friedman on behalf of CF submits that this approach should be modified in the present case because of the special procedure followed in these proceedings which denies the Respondents access to much of the relevant material. Mr Friedman submits that the correct approach is that, allegations of abuse of process having been plausibly raised, it is for the court to satisfy itself that matters are proved on the balance of probabilities. He points to the recent ruling of Ouseley J. on 29th June 2012 in this matter ( EWHC 1732 (Admin)) that the requirements of disclosure as laid down in AF (No.3) do not apply to the abuse of process application, because it is not concerned with allegations made against the Respondents. Mr Friedman submits that this feature of the dispute is governed by a requirement to maintain the 'essential' fairness of the trial. (I understand this to be a reference to the speech of Lord Phillips in A (No.3) at paragraph 68.) Mr Friedman submits that it would undermine the essential fairness of the determination of the abuse of process issue if the Secretary of State were allowed to rely on closed evidence but the Respondents were rigidly required to bear the burden of proving the abuse of process in the ordinary way.
- He refers by analogy to the conclusion of the House of Lords in A v Secretary of State of the Home Department (No.2)  2 AC 221, that, since a detainee only has limited access to material advanced against him in proceedings before SIAC, a conventional approach to the burden of proof was inappropriate in determining whether a statement should be excluded as procured by torture. There, the House of Lords concluded that the correct approach was that the Appellant before SIAC must ordinarily, by himself or his special advocate, advance some plausible reason why evidence may have been procured by torture. Where such a plausible reason is given or where SIAC, with its expertise in the field, knows or suspects that evidence may have come from a country widely known or believed to practise torture, it is for SIAC to initiate or direct such enquiry as is necessary to enable it to form a fair judgment as to whether the evidence has been obtained by torture or not. (See Lord Bingham at paragraphs 55-56, Lord Nicholls at paragraph 80, Lord Hoffmann at paragraph 98, Lord Rodger at paragraph 143, Lord Carswell at paragraph 155.) Their Lordships disagreed as to the appropriate standard of proof, the majority considering that it should be the balance of probabilities.
- In A (No.2) the House of Lords devised a special procedure to address a very specific case where admissibility of evidence is challenged on the grounds that it is the product of torture. Lord Bingham considered that a conventional approach to the burden of proof was not appropriate in a proceeding "where the Appellant may not know the name or identity of the author of an adverse statement relied on against him, may not see the statement or know what the statement says, may not be able to discuss the adverse evidence with the special advocate appointed (without responsibility) to represent his interest, and may have no means of knowing what witness he should call to rebut assertions of which he is unaware" (at paragraph 55). As Lord Nicholls observed (at paragraph 80), to require a detainee to prove that evidence had been obtained by torture would place on the detainee a burden of proof which, for reasons beyond his control, he could seldom discharge. The inquisitorial role identified by the House of Lords is specifically designed to establish whether evidence is or may have been the product of torture.
- By contrast, the Respondents in the present case are well aware of the case they wish to advance in relation to abuse of process. They have provided full witness statements in which they set out in detail their respective accounts of the matters on which they rely. They have had the opportunity to give oral evidence on these matters. Very extensive submissions have been made by their counsel in open hearing in relation to the specific allegations made by the Respondents. It is correct that as a result of the judgment of Ouseley J. delivered on 29th June 2012 they have not been provided in this application with the level of disclosure required by AF (No.3) in relation to the allegations made against them in the national security case. However, further disclosure has been made to the Special Advocates and to the court of materials relating to the Respondents' allegations of abuse of process and this has permitted the most vigorous pursuit by the Special Advocates in closed hearing of the Respondents' case on abuse of process, both in cross-examination of witnesses and in their submissions. In short, the Respondents know what allegations they make and it is neither unreasonable nor unfair that they should bear the burden of proving them. So far as concerns the opportunity of replying to matters relied on by the Secretary of State, I agree with Ouseley J. in his ruling of the 29th June 2012:
"If her evidence, undisclosed to the Respondents, contradicts their direct evidence or, by evidence of circumstances and context puts it in a different light, the Respondents will still have had the opportunity to put in whatever they wish to support the allegations they have made. They know the case because they are making it. Their ability to know the response so as to put in first their evidence in rebuttal, evidence of circumstances they must already know of, is not essential to fairness of the proceedings" (at paragraph 35.)
- It is undoubtedly the case that, as Ouseley J. observed (at paragraph 31), an abuse of process claim involves the Court's own obligation and entitlement to ensure that its processes are not abused. However, I do not consider that it is necessary or appropriate in the present circumstances for this court to adopt an inquisitorial role.
- Accordingly, while the Court will always be mindful of the limitations arising from the fact that certain relevant material cannot be disclosed to the Respondents, I do not consider that it is necessary to modify the well–established principles in relation to the burden of proof in abuse of process applications in order to maintain the essential fairness of the trial.
Evidence of Somaliland Law
- At a preliminary hearing on 6th July 2012 Mr James Eadie QC for the Secretary of State sought an order prohibiting reliance by the Respondents on two expert reports on the law of Somalia and Somaliland: the report of Abdiwahid Osman Haji, on behalf of CC, which was dated 23rd June 2012 and served on the Secretary of State on 26 June 2012 and the report of Hassan Ali Hassan, on behalf of CF, which was dated 29th June 2012 and served on the Secretary of State on the 2nd July 2012. The Respondents had not obtained permission to rely on the reports and had given the Secretary of State no prior notice of their intention to do so. I was satisfied there was no satisfactory explanation for the failure of the legal advisors of CC and CF to apply in good time for permission to rely on these reports. Moreover, I considered that there had been an inexcusable failure to give notice to the Secretary of State of the intention to obtain and rely on these reports. I accepted the submission of Mr Eadie that the Applicant could not obtain expert evidence in response in time for the hearing starting on the 9th July. Accordingly I refused permission to the Respondents to rely on that evidence at that time but, because of the potential importance of the evidence of the law of Somalia and Somaliland to the serious allegations made in these proceedings, I indicated that the Secretary of State should seek to obtain expert evidence on these issues and that it might be necessary to return to consider issues of Somali and Somaliland law at a further hearing next term.
- In their closing submissions, counsel for the Secretary of State invited me to proceed on the assumption that the statements in the Respondents' expert reports on the law of Somaliland were accurate. They submitted that even if I made that assumption the Respondents' case on abuse of process did not reach the threshold for quashing the control orders and the TPIMs. Accordingly, they invited me to decide the abuse of process point on that basis, while making clear that if I was against them on that basis they would wish to obtain expert evidence on Somaliland law and argue these issues at a further hearing next term. In the event, I have concluded that it is appropriate to deal with this part of the case on the basis of assumptions as to the law of Somaliland.
Abuse of Process – The law
- Both the Supreme Court and the Judicial Committee of the Privy Council have had recent occasion to consider the law of abuse of process (R v Maxwell  UKSC 48; Warren v Her Majesty's Attorney General of the Bailiwick of Jersey  UKPC 10). In Maxwell, Lord Dyson stated the general principle in the following terms:
"It is well established that the Court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will "offend the court's sense of justice and propriety" (per Lord Lowry in R v Horseferry Road Magistrate's Court, ex parte Bennett  1 AC 42 74G) or will "undermine public confidence in the criminal justice system and bring it into disrepute" (per Lord Steyn in R v Latif and Shahzad  1WLR 104, 112F)." (at paragraph 13)
- In the present case it is common ground that we are concerned only with the second category of abuse. That limb is not related in any way to resulting unfairness in the ensuing proceedings. (See Warren per Lord Dyson at paragraph 35.) Its purpose is the more general one of protecting the integrity of the legal system and thereby maintaining the rule of law.
- The threshold for the second category of abuse is very high. The question for the court will be whether the court's sense of justice and propriety or public confidence in the justice system would be offended if the proceedings were not stayed. I do not understand Lord Dyson in Warren to qualify this very high threshold in any way. On the contrary his speech reaffirms it.
- To establish an abuse of process under the second category involves more than the satisfying of a threshold condition. It requires an evaluation of what has occurred in the light of competing public interests. In Latif Lord Steyn explained as follows:
"The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed; R v Horseferry Road Magistrates' Court, ex parte Bennett  1 AC 42. Ex p Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex p Bennett conclusively established that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. The general guidance as to how the discretion should be exercised in particular circumstances would not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crime should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means".
- The abuse jurisdiction is not of a disciplinary character. Thus in Bennett Lord Lowry observed (at p.47 H):
"Discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely "pour encourager les autres".
The same theme is taken up by Lord Dyson in his speech in Maxwell at paragraph 24 where he refers to Lord Lowry's speech in Bennett. Similarly in Warren the Board implicitly endorsed the observation of Lord Lowry in Bennett while adding, with reference to the decision of the Court of Appeal in R v Grant  QB 60 to refuse to order a retrial, a decision which it considered incorrect:
"[I]t may not always be easy to distinguish between (impermissibly) granting a stay in order to express the court's disapproval of official conduct "pour encourager les autres" and (permissibly) granting a stay because it offends the court's sense of justice and propriety. But it is difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court's disapproval of the police misconduct and to discipline the police". (at para. 37).
- It is possible to identify factors which are often taken into account by the courts in performing this balancing exercise. However, Lord Steyn's words of caution against general guidance as to how the discretion should be exercised remain of critical importance. As Lord Dyson observed in Warren (at paragraph 36), the exercise of the discretion depends on the particular circumstances of each case and rigid classifications are undesirable. In the context of criminal proceedings the balance must always be struck between the public interest in ensuring that those that are accused of serious crime should be tried and the competing public interest in ensuring that executive conduct does not undermine public confidence in the criminal justice system and bring it into disrepute. With those warnings firmly in mind, it is appropriate to consider what factors have been considered in the authorities to be indications of abuse of process.
- The connection between the abuse of executive power and the proceedings which are said to be an abuse of process is likely to be a highly relevant consideration. Thus it will often be the case that but for the wrongful conduct the defendant would not be before the court at all. However, the existence of such a causative link is neither a pre-condition nor a conclusive demonstration of abuse. It is simply a relevant consideration. Thus in Maxwell the majority considered that the fact that the confessions on which a retrial would be based would not have been made but for the misconduct was not determinative of whether there should be a retrial. Similarly in Warren Lord Dyson observed:
"The Board does not consider that the "but for" test will always or even in most cases necessarily determine whether a stay should be granted on the grounds of abuse of process. The facts of the present case demonstrate the dangers of attempting a classification of cases in this area of the law and disregarding the salutary words of Lord Steyn. For reasons which will appear, it is the Board's view that the Commissioner reached the right conclusion in this case, or at least a conclusion that he was entitled to reach. And yet it was accepted at all times by the prosecution that but for the unlawful and misleading misconduct of the Jersey Police in relation to the installation and use of the audio device, the prosecution in this case could not have succeeded and there would be no trial unless the police were able to obtain the necessary evidence by other (lawful) means." (at paragraph 30).
- Clearly the gravity of the misconduct and the degree of culpability on the part of the wrongdoers will be highly relevant in determining whether the threshold test has been satisfied and in which direction the balancing exercise should be resolved. In this regard the Secretary of State submits that as a matter of principle and authority actual knowledge of illegality is necessary. It is submitted that misconduct cannot be so grave as to amount to an affront to the public conscience unless it is deliberate. Furthermore it is submitted that the reported cases have been concerned not with conduct that was merely negligent or even reckless but rather with instances of deliberate and flagrant disregard of legal requirements. In addition it is submitted that there is no case in which the required level of misconduct has been established after arguments as to the precise nature and effect of foreign local law and attempts to suggest that more enquiries should have been made by the authorities to establish its precise nature and effect.
- I accept that actual knowledge has often been a key element in establishing an abuse of process. For example, in R v Mullen  QB 520 the Court of Appeal recorded with approval the defendant's concession that proof of actual knowledge of illegality was required.
"Mr Mackay accepted that the burden of proving abuse of process is on the defendant and that knowledge on the part of the English authorities that local or international law was broken must be shown" (at p. 529D).
Similarly in Bennett Lord Griffiths stated the principle as follows:
"In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of these procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party". (at p. 62G.)
- However, it does seem to me that Mr O'Connor's approach in this regard is over-prescriptive. A case involving actual knowledge of illegality will necessarily be regarded as a particularly serious matter. However, the objective of maintaining the integrity of the legal system can be achieved only by a consideration of the entirety of the conduct in question and untrammelled by any rigid rules. Moreover, as Mr O'Connor himself submits, there are many gradations of states of mind including actual knowledge, wilful blindness, constructive knowledge and recklessness. The court should be free to reflect these matters in its examination of each case in the round. There may be situations in which reckless or possibly even negligent conduct could justify a stay on grounds of abuse of process. Everything will depend on an analysis of the particular features of each case in its entirety.
- On behalf of the Secretary of State Mr O'Connor further submits that in a case of an alleged "disguised extradition" the party seeking to establish the abuse is required to prove not only a flagrant and knowing disregard of the law but also that the authorities colluded in or procured the deportation for some ulterior or wrongful purpose. I accept that it will usually be necessary to show that the UK authorities acted so as to procure the individual's removal to the United Kingdom. (R v Staines Magistrates' Court ex parte Westfallen  1 WLR 652.) However, I consider that here once again Mr O'Connor's suggested approach is unduly prescriptive. Clearly, the existence of a wrongful ulterior motive will be a highly relevant consideration. However the court must be free to consider the conduct in its entirety.
- In Warren the Board recognised that in abduction and entrapment cases the court will generally conclude that the balance favours a stay. However, it was at precisely this point in his speech (paragraph 26) that Lord Dyson warned against the undesirability of rigid classifications and emphasised the need to balance competing interests. Clearly it is insufficient to label a case as falling within a particular category. A challenge on grounds of abuse of process calls for a more refined analysis of the facts and the balancing of the competing interests. It is, however, instructive to observe the approach of the courts to abduction cases given the Respondents' contention that it is in substance what has happened to them in this case.
- In R v Bow Street Magistrates, ex parte Mackeson (1982) 75 Cr. App. R. 24, the applicant, who sought an order of prohibition, had been wanted on fraud charges in England. His extradition from Rhodesia was not sought because Rhodesia was in rebellion against the Crown. The Metropolitan Police informed the Rhodesian authorities that he was wanted on fraud charges and he was arrested in Rhodesia and a deportation order made against him. His passport was returned to the Metropolitan Police and sent back to the applicant with authority for a single journey to return to the United Kingdom. He successfully brought proceedings in Rhodesia to set aside the deportation order but that decision was reversed on appeal. Notwithstanding the fact that by that time extradition would have been a legal possibility because of the change in the governing regime, he was escorted to the United Kingdom under the deportation order and handed over to the Metropolitan Police. No evidence was offered against him on the original charges of fraud but he was charged with different offences under the Theft Act.
- The Queen's Bench Divisional Court held that he had been returned by unlawful means, namely a deportation order in the guise of extradition. In its discretion the court made an order of prohibition and ordered discharge of the applicant. The court observed that the object of the exercise was clearly to achieve extradition by the back door. The Lord Chief Justice stated that the outcome largely depended on questions of fact and inferences which could properly be drawn. However, the applicant had shown that the Metropolitan Police "no doubt due to an excess of enthusiasm, certainly not due to any conscious intent to do wrong, have in fact transgressed the line" in that the purpose was to achieve extradition by other means. (at p. 33.) Notwithstanding the observation in relation to the absence of any conscious intent to do wrong, this was a knowing and deliberate attempt to circumvent extradition procedures and the protections they confer on the individual.
- In R v Horseferry Road Magistrates' Court, ex parte Bennett  1AC 42 it was the applicant's case that, having taken the decision not to employ the extradition process, the English police colluded with the South African police to have the applicant arrested in South Africa and forcibly returned to the United Kingdom against his will. The case was decided by the House of Lords on assumed facts and as a result provides less assistance than it might otherwise in relation to the evaluation of the particular features which may give rise to a conclusion of abuse of process. Lord Bridge observed at p. 64 F-H:
"My Lords, this appeal raises an important question of principle. When a person is arrested and charged with a criminal offence, is it a valid ground of objection to the exercise of the court's jurisdiction to try him that the prosecuting authority secured the prisoner's presence within the territorial jurisdiction of the court by forcibly abducting him from within the jurisdiction of some other state, in violation of international law, in violation of the laws of the state from which he was abducted, in violation of whatever rights he enjoyed under the laws of that state and in disregard of available procedures to secure his lawful extradition to this country from the state where he was residing? This is to state the issue very starkly, perhaps some may think tendentiously. But because this appeal has to be determined on the basis of assumed facts, your Lordships, as it seems to me, cannot avoid grappling with the issue in this stark form."
- Lord Griffiths answered the certified question as follows:
"The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures it may stay the prosecution and order the release of the accused." (at p. 64 E-F)
- However, despite the general terms in which this was expressed, it is clear that the House of Lords was concerned with the deliberate breaking of the law and the abuse of power. This emerges from R v Staines Magistrates' Court ex parte Westfallen  1 WLR 652. There the Queen's Bench Divisional Court considered three cases of individuals who had been deported to the United Kingdom where they were arrested and prosecuted. The court dismissed the applications to stay on grounds of abuse of process. It considered that since neither the police in the United Kingdom nor the prosecuting authorities had procured, influenced or colluded in the decisions to deport the applicants or in the arrangements for doing so, there had been no illegality, abuse of power or violation of international law or of the domestic law of the foreign states involved. Accordingly the decisions under challenge could not be impugned nor the subsequent criminal proceedings vitiated. Lord Bingham observed at p. 665 B-D.
"…there must be grounds for objection if the British authorities knowingly connive at or procure an authorised deportation from a foreign country for some ulterior or wrongful purpose.
The question in each of these cases is whether it appears that the police or the prosecuting authorities have acted illegally or procured or connived at unlawful procedures or violated international law or the domestic law of foreign states or abused their powers in a way that should lead this court to stay the proceedings against the applicants."
Both members of the court emphasised that the principle established in Bennett "was plainly concerned with the flouting of the rule of law and abuse of power by police and prosecuting authorities." (See Lord Bingham at pp. 662A-663G; Hooper J. at p. 666D.) There was no evidence of collusion and in those circumstances the applications could not possibly succeed. (per Hooper J at p. 667D)
- In R v Mullen  QB 520 the defendant, an Irish national who was wanted by the police in England, was brought back to England from Zimbabwe by a Zimbabwean immigration officer in 1988. He was immediately arrested and later convicted of conspiracy to cause explosions and sentenced to 30 years' imprisonment. In 1999 the Court of Appeal quashed his conviction on grounds of abuse of process. A meeting had taken place in London between police and SIS to see if the defendant could be secretly and summarily deported from Zimbabwe to London. The aim had been his "foolproof return" to London. The Zimbabwean authorities indicated that they did not want to become involved in extradition which was likely to get bogged down but suggested deportation might be possible. The SIS provided the Zimbabwean authorities with a draft paper recommending deportation. At a meeting in London English police indicated that any action must be capable of withstanding close judicial scrutiny in England. It was later concluded that an extradition request was likely to fail because the offence would be considered a political offence. SIS stated they did not want to become involved in complicated extradition proceedings. It was noted by the UK authorities that they had to be ready to respond with indisputable evidence that any deportation had been entirely at the instigation of Zimbabwe for breach of its laws. It was also noted that if the defendant was deported there would be a considerable advantage in not telling him until shortly before he was put on the flight in order to minimise the risk of his trying to appeal against deportation. In the event, the Zimbabwean authorities gave orders that the defendant be allowed no access whatsoever to his lawyers. It was decided that Parliament and the media in the United Kingdom should be told that the deportation proceedings were not in response to any request from the United Kingdom Government. A decision was taken not to comply with the normal practice of informing the Irish Embassy in Lusaka about Irish citizens in trouble in Zimbabwe. The SIS officer in Zimbabwe recorded that his objective was to "lean on" the Deputy Director General of the Zimbabwean Central Intelligence Organisation "as hard as I deemed prudent in order to achieve the right decision over Mullen."
- On behalf of the defendant it was conceded that the burden of proving abuse of process was on the defendant and that knowledge on the part of the English authorities that local or international law was broken must be shown. That concession was recorded with apparent approval. Of course, on these facts there was no difficulty in meeting this requirement. The court considered that it must have been appreciated by the SIS and probably by the police in Britain that "the vital element in the operation, the insulation of the defendant from any legal advice following his detention, was in breach of specific provisions of the law of Zimbabwe, or, at the least, was contrary to the defendant's entitlement as a matter of human rights". (at p. 535D-E.)
- Mullen was a particularly strong case. It is difficult to conceive of a more cynical flouting of the rule of law. There was a deliberate and knowing evasion of the requirements of Zimbabwean law in order to deny the defendant the protection of extradition law which would probably have prevented his extradition for what was a political offence. There was a clear intention deliberately to conceal the role of the SIS and to lie about what had actually happened. Steps were taken to ensure that the defendant had no access to legal advice or representation and to prevent him from applying to a court. Furthermore, the court considered that the discretion to stay the proceedings had to be exercised on the basis that, but for the unlawful manner of his deportation, he would not have been in the United Kingdom to be prosecuted when he was and there was a real prospect that he would never have been brought here.
- The decision also provides a striking example of the balancing process involved in such applications. Notwithstanding the fact that the defendant had admitted that he was rightly convicted of a very serious terrorist offence, the court concluded that "certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice." (at p. 534C-D.) I also draw attention to the fact that another factor considered relevant in the balancing exercise was that "there is no evidence to suggest that, unless he were at once apprehended and brought back to this country, he would pose, whether in Zimbabwe or elsewhere, an immediate and continuing security threat to life and property here." (p. 534F.) His activities in Zimbabwe did not appear to have presented an imminent security threat.
- In Jama v. Regina (14th July 2008, Leeds Crown Court, Simon J.) West Yorkshire Police wished to charge Jama with the murder of a police officer during an armed robbery in Bradford. Four days after the robbery Jama had left the country under an assumed name and a false passport and had travelled to Somalia. There being no extradition treaty between the United Kingdom and Somalia Her Majesty's Government entered into a memorandum of understanding with the Somalian government which set out the legal basis for the extradition of Jama to the United Kingdom. Jama was returned to the United Kingdom pursuant to this arrangement. On behalf of Jama it was argued that the UK authorities were well aware that the law and constitution of Somalia precluded extradition in the absence of an extradition treaty and that the memorandum of understanding was a device to circumvent a bar to his lawful extradition. In summarising the principles applicable on such an abuse of process application Simon J. emphasised that the involvement of the UK authorities in unlawful activities was a necessary component; if the only illegality proved was conduct on the part of the foreign State in which the United Kingdom had not been involved there was no basis for a stay. He considered that under the MOU it was for the Government of Somalia to decide how the extradition was to take place in accordance with the laws of Somalia. There were principled objections to the English court deciding whether the Government of Somalia had complied with an international treaty as a matter of Somali law but even if the court were to embark on such an enquiry, there was insufficient material to lead him to the conclusion that this extradition was contrary to Somali law. The judge found that the UK authorities were clearly eager for Jama to be brought back to the United Kingdom. However, they were also aware of the possibility that an abuse application might be launched if it could be said that the extradition involved an infraction of Somali law. There was before the court evidence of the concerns expressed by the UK authorities at the lack of legal process in Somalia. The judge concluded that in the event it was impossible to insist on judicial oversight in Somalia. The judge was satisfied that none of the UK officials was complicit in any illegality; on the contrary he concluded that they were aware of the risks of any such illegality and wished to avoid them if possible. In the event they were entirely in the hands of the Somali Government as to how the extradition took place. In these circumstances the judge concluded that Jama had failed to prove that the UK authorities acted unlawfully or procured or connived in unlawful procedures or violation of international law. On the contrary he considered that they had acted properly. He went on to state that had he considered that there was illegality by the Somali authorities which had been condoned by the UK authorities, in weighing the competing interests he would not have been persuaded that the trial of Jama would be an affront to the public conscience.
- I whole-heartedly agree with the following observation of Simon J. :
"Although the cases recognise that a balance must be made which involves a consideration of the seriousness of the offence charged, the Court will always be alive to the possibility that it is in the most serious cases that a calculation may be made that the laudable end of bringing a defendant to trial justifies illicit means. That is a calculation with which the Court will not necessarily agree." (at para.39).
Abuse of process - the status of Somaliland
- The Respondents' submissions on abuse of process arising from the status of Somaliland may conveniently be considered at this point. Mr Otty QC for CC and Mr Friedman for CF both make wide ranging submissions on this topic. In particular they submit that:
(1) These proceedings are abusive because Her Majesty's Government has had dealings with the Somaliland authorities when they are not recognised as the government of any part of Somalia.
(2) This court is precluded from giving any recognition to the laws of Somaliland (save in exceptional circumstance which do not arise in this case) and, as a result, all of the actions of the Somaliland authorities were necessarily unlawful as a matter of local law.
These submissions are then used as the basis for further more detailed submissions. These submissions make it necessary to consider how this court should approach the question of the status of Somaliland and that of the entity claiming to be its government.
- There are fundamental constitutional principles in play here. First, the conduct of foreign relations is carried on by the executive pursuant to the Royal prerogative. While certain decisions made in the conduct of foreign relations may exceptionally be subject to review by the courts, in general the courts will be reluctant to do so. This is a result of both constitutional and pragmatic considerations. It is both a reflection of the fact that constitutionally the conduct of foreign relations is particularly within the sphere of the executive and an acknowledgment of the expertise possessed by the executive in this field. (R (Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1598 at paragraph 106 (iii); R (Al-Rawi) v Secretary of State for Foreign and Commonwealth Affairs  QB 289 at paragraphs 131 and 134. As Laws LJ explained in Al-Rawi:
"The elected government has a special responsibility in what may be called strategic fields of policy, such as the conduct of foreign relations and matters of national security. It arises in part from considerations of competence, in part from the constitutional imperative of electoral accountability." (at paragraph 147).
As a result, in the words of Lord Bingham in R v Jones (Margaret)  1 AC 136 at paragraph 30, the courts are often "very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and very slow to adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law".
- This second principle is a more specific application of the first: the conclusive nature of an executive statement on certain issues. It has undoubtedly been the practice of the courts in this jurisdiction to accept as conclusive an executive statement on a variety of matters including whether a foreign State has been recognised by the Crown, whether a foreign government has been recognised either de jure or de facto (e.g. Taylor v Barclay (1828) 2 Sim.213; Luther v Sagor  1 KB 456;  3 KB 532) and as to the sovereign status of a foreign state or government (Sultan of Johore v Abubakar Tunku Aris Bendahar  AC 318). This is often expressed in terms of a requirement that the executive and judicial branches of government must speak with one voice in matters of foreign relations. (The Arantzazu Mendi  AC 256, per Lord Atkin at p. 264; R (H.R.H. Sultan of Parang) v Secretary of State for the Home Department  EWCA Civ 616 at paragraphs 14 et seq, paragraph 30.) Professor Clive Parry, writing in the British Digest of International Law, Vol. 7 at pp. 214-6, identifies four different theories as to why an executive statement is conclusive of certain matters: (1) the requirements of comity or consistency between the several branches of government require it; (2) the certificate provides the best evidence of the matters to which it relates; (3) matters to which the certificate may relate are unarguable, being matters within the area of judicial notice upon which the court will inform itself, if necessary, by reference to the executive; (4) the consequence follows from the act of state doctrine. He observes that none of the first three theories would necessary involve that the certificate must be accepted as conclusive and also draws attention to the fact that there is no rule of law compelling the executive to answer a question put by the court or the parties. With regard to the fourth theory he states:
"The vagueness of the conception of an Act of State impairs somewhat the utility of this alternative theory. It seems, however, to contain a germ of a more satisfactory explanation. For it is clear that the executive certificate commonly relates to the question whether or not the Crown has done a particular act or adopts or has adopted a particular attitude: whether, for instance, the Crown has or has not recognised a foreign State or Government, or has declared war, or has claimed or claims jurisdiction or territorial sovereignty with respect to a given place. Where such a matter is in question, the statement of the Crown, in the form of the executive certificate, would seem to be necessarily conclusive. In such a case the matter is indeed "peculiarly within [the] cognizance" of the Crown as Lord Finlay expressed it in Duff Development Co. Ltd v Government of Kelantan  AC 797".
- At the outset of the hearing before me I raised with counsel the question whether I should request an executive statement in relation to certain of the issues which arise in this case. I was told by Mr Eadie QC that the Foreign and Commonwealth Office ("FCO") proposed to write to the court. It appears that CC's solicitors had also written to the FCO asking certain questions. In due course I received a letter from Ms. Sally Axworthy, Head of the Somalia Unit at the Foreign and Commonwealth Office. I am most grateful to her for her assistance.
- The precise form of an executive statement is immaterial (The Parlement Belge (1880) 5 PD 197; The Fagernes  P. 311.) I accept that this letter is an authoritative statement of the position of Her Majesty's Government.
Somaliland – A Sovereign State in International Law?
- In the letter of 16 July 2012 the FCO states:
"I understand that the Court has asked for information from the Foreign and Commonwealth Office as to the status of Somaliland.
A British protectorate for 74 years, Somaliland gained independence on 26 June 1960. Five days later, it chose union with the Trust Territory of Somaliland under Italian administration. Following the war of 1982-1991, Somaliland declared independence in May 1991. In 2001, the Somaliland administration held a referendum which had the effect of endorsing a new constitution together with 97% of those who took part voting to reaffirm their independence. Somaliland claims recognition as a state based on colonial borders, stating that it voluntarily united with the Trust Territory of Somaliland under Italian Administration to form the Somali Republic, and has now voluntarily withdrawn.
In a letter from Birnberg Peirce and Partners of 9 July 2012, the Respondents ask whether HMG recognises Somaliland as an independent state. HMG does not. Nor does any other state. However, the position of Somaliland is not to be equated with that of unrecognised states where a territorial situation raises issues of illegality under international law and which, therefore, states have been called on by the United Nations Security Council and General Assembly not to recognise."
- I conclude therefore that Somaliland is not a sovereign State in international law.
What is the status of the entity claiming to be the government of Somaliland?
- It was previously the practice of the FCO to recognise governments. The courts developed on this foundation a body of law whereby the legal status of an entity claiming to be a government depended on recognition or non- recognition as such by Her Majesty's Government and, where recognised, whether the entity was recognised as the government de facto or the government de jure. Thus an unrecognised government had no locus standi in an English court (City of Berne v The Bank of England (1804) 9 Ves. Jun. 347), could not claim immunity in an English court (The Annette; The Dora  P. 105) and its executive and legislative acts were not usually entitled to the acceptance which is due to another government's official acts (Luther v Sagor  3 KB 352; Lipstein, 35 Transactions of the Grotius Society 157; Oppenheim's International Law 9th Ed., Vol. 1, paragraph 47.) The question whether the English courts could recognise the laws or acts of an unrecognised body which was in effective control of territory remained open. (Carl Zeiss Stiftung v Rayner & Keeler Ltd. (No.2)  1 AC 853 per Lord Reid at pp. 907-8, per Lord Wilberforce at p. 954; Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd.  QB 205 per Lord Denning M.R. at p. 218; Dicey, Morris and Collins, The Conflict of Laws, 14th Ed. paragraph 25-004.)
- However, in 1980 the FCO announced that it was ceasing the practice of according recognition to governments, although it would continue to accord recognition to States in accordance with international practice. It indicated that, for the purposes of legal proceedings, where a new regime comes to power unconstitutionally the attitude of Her Majesty's Government on the question whether the new regime qualifies to be treated as a government would have to be inferred from the nature of the dealings which Her Majesty's Government might have with it, and in particular on whether it was being dealt with on a normal government to government basis.
"We have conducted a re-examination of British policy and practice concerning the recognition of governments. This has included a comparison with the practice of our partners and allies. On the basis of this review, we have decided that we shall no longer accord recognition to governments. The British Government recognises states in accordance with common international doctrine.
Where an unconstitutional change of regime takes place in a recognised state, governments of other states must necessarily consider what dealings, if any, they should have with the new regime, and whether and to what extent it qualifies to be treated as the government of the state concerned. Many of our partners and allies take the position that they do not recognise governments and that therefore no question of recognition arises in such cases. By contrast, the policy of successive British Governments has been that we should make and announce a decision formally 'recognising' the new government.
This practice has sometimes been misunderstood, and, despite explanations to the contrary, our 'recognition' interpreted as implying approval. For example, in circumstances where there may be legitimate public concern about the violation of human rights by the new regime, or the manner in which it achieved power, it has not sufficed to say that the announcement of 'recognition' is simply a neutral formality.
We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to Governments. Like them, we shall continue to decide the nature of our dealings with regimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so.
In future cases where a new regime comes to power unconstitutionally our attitude on the question of whether it qualifies to be treated as a government, will be left to be inferred from the nature of the dealings, if any, which we may have with it, and in particular on whether we are dealing with it on a normal government to government basis."
(HL Debates, vol. 48, cols. 1121-1122, 28 April 1980; HC Debates, vol. 983, Written Answers cols. 277-279, 25 April 1980 and HC Debates, vol. 985, Written Answers col. 385, 23 May 1980.)
- In Republic of Somali v Woodhouse Drake & Carey (Suisse) SA  Q.B. 54 Hobhouse J. considered how the court should approach the acts of a foreign regime claiming to perform governmental functions in circumstances where Her Majesty's Government no longer accords recognition to governments. He considered that the factors to be taken into account in deciding whether a regime existed as the government of a State were whether it was the constitutional government of the State, the degree, nature and stability of administrative control that it exercised over the territory of the State, whether Her Majesty's Government had any dealings with it and the nature of any such dealings and, in marginal cases, the extent of its international recognition as the government of the State.
- Although the FCO is no longer in a position to issue a certificate as to whether a regime is recognised by Her Majesty's Government as a government, it has in the present case assisted the court by providing in its letter of 16th July 2012 information about the nature of the dealings Her Majesty's Government has with Somaliland. In the light of the new policy this executive statement can no longer be binding on the court. Nevertheless it is important evidence and, in relation to the dealings which Her Majesty's Government has with the regime, it may well be conclusive evidence. The position was explained by Hobhouse J. in The Republic of Somalia v Woodhouse Drake & Carey in the following terms:
"Once the question for the court becomes one of making its own assessment of the evidence, making findings of fact on all the relevant evidence placed before it and drawing the appropriate legal conclusion, and is no longer a question of simply reflecting government policy, letters from the Foreign and Commonwealth Office become merely part of the evidence in the case. In the present case no problem of admissibility arises. In so far as the letters make statements about what is happening in the territory of some foreign state, such letters may not be the best evidence; but as regards to the question whether Her Majesty's Government had dealings with the foreign government it will almost certainly be the best and only conclusive evidence of that fact. Where Her Majesty's Government is dealing with the foreign government on a normal government to government basis as the government of the relevant foreign state, it is unlikely in the extreme that the inference that the foreign government is the government of that state would be capable of being rebutted and questions of public policy and considerations of the inter-relationship of the judicial and executive arms of government may be paramount: see The Arantzazu Mendi  AC 256, 264 and Gur Corporation v Trust Bank of Africa Ltd  Q.B. 599, 625. But now that the question has ceased to be one of recognition, the theoretical possibility of rebuttal must exist."
- In response to the question "Whom does the Government of the United Kingdom recognise as the de jure Government of the State of Somalia?", the FCO letter of 16 July 2012 states that it is a long standing policy of Her Majesty's Government to recognise States and not governments. The letter continues:
"Our policy has long been that the Somali people themselves should determine their future relationship and that their neighbours and other African countries should take the lead in recognising any new arrangements. We appreciate the aspirations of the Somalilanders, and have encouraged them to engage with the Somali peace process, including resolving their differences with the Transitional Federal Government (TFG)."
The letter explains that the United Kingdom, the EU and Norway facilitated a technical-level meeting between representatives of Somaliland and the TFG at Chevening House on 20-21 June 2012. The purpose of the talks was to establish a framework for further talks as a step towards clarifying the future relations between the TFG and Somaliland. It states that the United Kingdom will continue to work with international partners to facilitate these talks as an impartial third party without prejudice to the outcome of the talks. The letter continues:
"Nevertheless, HMG does acknowledge that the Somaliland administration has effective control, and exercises de facto administrative authority, over all the territory of Somaliland, except parts of the border regions of Sool and Sanaag which are disputed with the neighbouring Somali state of Puntland. There has also been similar acknowledgement at an international level. For example the UN Security Council Report of Secretary-General on the Modalities for the Establishment of Specialized Somali Anti-Piracy Courts (S/2011/360) states at paragraph 5 of Annex II:
'Relations between the Transitional Federal Government and the main regional authorities within Somalia are complex.' 'Somaliland' has not been recognised as a State by the Transitional Federal Government nor internationally, but is de facto self-governing. ' "
- The letter then provides some examples of the exercise of effective control and de facto administrative authority exercised by the Somaliland Government.
(1) Since declaring independence, Somaliland has sought to build the institutional machinery of a democratic government. It has done so with little interference from the Somali Transitional Federal Government (TFG) in the capital Mogadishu. Somaliland raises its own tax revenue, including export and port taxes, and uses its own currency of the Somaliland shilling. It will hold local elections in 2012 and has previously held local, parliamentary and presidential elections over the last 20 years.
(2) "Somaliland has a functioning legal system, defined under its own constitution and subsequent laws made through its bicameral Parliament. It is a hybrid common and civil law system. HMG's view is that, despite its functioning existence, in some areas it lacks capability and it requires significant development support. The UN shares this view and is providing capacity building support."
(3) "Somaliland has its own police and security forces. There are no TFG security personnel in Somaliland."
(4) "Somaliland has its own prisons, under the control of its Custodial Corps, where it detains both Somalilanders and other Somalis who have committed crimes in Somaliland."
(5) "Somaliland has its own immigration controls and visa regime, separate from the TFG, to regulate entry and exit into Somaliland. Its airports have direct flights to both Dubai and Djibouti, and Ethiopian Airlines has recently resumed direct service to Addis Ababa."
(6) "Somaliland held presidential elections in July 2010. The peaceful transition of power to the opposition leader Ahmed Mahamoud Silanyo demonstrated Somaliland's progress towards democratisation."
- The FCO letter states that
"in practice, given the ongoing instability in south central Somalia, the authority of the Transitional Federal Government does not currently extend to Somaliland: the TFG would not currently be in a position to provide basic services, justice and security provision in Somaliland (nor in other Somali regions such as Puntland, which also has its own constitution and security architecture)".
- The FCO letter states that the international community, including the United Nations, engages directly with Somaliland:
"In the absence of final settlement of relations between Somaliland and the TFG, the UK and other states have taken a pragmatic approach to engagement with the Somaliland authorities. The UK and many other states and international organisations, including the UN, have and will continue to have direct dealings with the Somaliland authorities on many issues."
It then provides the following examples:
(1) "The UK engages with the Somaliland administration on issues such as piracy, supporting the UN Office for Drugs & Crime's (UNODC), counter-piracy work in Kenya, Seychelles and Somalia. In Somaliland the UNODC focus is on improving prison conditions, including staff housing, providing capacity-building and training programmes to prison staff, and improving prison security and welfare standards. UNODC has also supported the completion of the prison in Hargeisa. The United Kingdom has provided £1,138,155 in funding for this work."
(2) "The Seychelles have a Memorandum of Understanding with the Somaliland authorities allowing for the return of convicted pirates to serve their prison sentences in Somaliland. They do so without recourse to the TFG in Mogadishu."
(3) "The UN have also supported a programme to update Somaliland's prison and piracy laws and to develop the capacity for courts in Somaliland to conduct piracy prosecutions so as to enable the transfer of suspected pirates by naval states for trial to Somaliland."
(4) "The UK provides aid to Somaliland and will continue to do so over the next few years. The Department for International Development is working with the Danish Government on a Somaliland Development Fund, which will support the Somaliland administration to meet its developmental priorities as expressed in the Somaliland National Development Plan."
- Finally, the FCO letter states that the relationship between Her Majesty's Government and Somaliland was further strengthened by the visit of the Secretary of State for International Development to Somaliland in January 2011 and the Minister for Africa's visit on 25 July 2011. President Silanyo of Somaliland visited the United Kingdom in November 2010 when he met the Secretary of State for International Development and the Minister for Africa. President Silanyo also attended the London Conference on Somalia on 23 February. The United Kingdom will shortly open an office in Hargeisa, in addition to planned offices in Mogadishu.
- The only evidence before the court as to the dealings between Her Majesty's Government and Somaliland is that provided by the FCO letter. So far as the arrangements for the administration of the territory are concerned, there is no evidence which contradicts that provided in the FCO letter. Furthermore, there has been no challenge to the contents of that letter. In these circumstances I find that:
(1) The Somaliland administration has effective control and exercises de facto authority within almost all of the territory of Somaliland with the exception of the areas disputed with neighbouring Puntland.
(2) The Somaliland administration operates independently of Somali (TFG) authority.
(3) The Somaliland administration performs the functions of a government including providing security and policing.
(4) There is a functioning judicial system in Somaliland.
(5) Her Majesty's Government and other states and international organisations including the United Nations have dealings with the administration in Somaliland.
On the basis of these finding I conclude that the Somaliland administration is performing the functions of a government within that part of Somaliland with which we are concerned in these proceedings.
- Whatever may be the position in international law, there is nothing unlawful as a matter of domestic English law in Her Majesty's Government having dealings with the entity performing governmental functions in Somaliland. It is for the executive to decide on the entities with which it will have dealings in the conduct of foreign relations. That remains the case notwithstanding Her Majesty's Government's continuing recognition of Somalia as a State and its non-recognition of Somaliland as a State. Furthermore, in the context of these proceedings the fact that Her Majesty's Government has dealings with the Somaliland authorities cannot of itself render the present proceedings an abuse of process.
- Moreover, I reject the submission on behalf of the Respondents that this court is precluded from taking cognisance of the laws of Somaliland. In the light of the evidence as to the nature of its administration of the territory under its control, I consider that the Somaliland administration is the effective government of Somaliland and that it is open to this court to take cognisance of its legislative, executive and judicial acts. It is not the case that all actions of the Somaliland authorities will necessarily be considered by this court to be unlawful in the local law.
Abuse of process – the arrest, detention and deportation of the Respondents
- To my mind, the substance of the Respondents' case on abuse of process lies in their complaints concerning their treatment in Somaliland and their return to the United Kingdom. The position of the Secretary of State in these proceedings is that she neither confirms nor denies that the UK authorities were involved in the arrest, detention and deportation of the Respondents. I have addressed these issues with that position in mind.
- With considerable reluctance I have come to the conclusion that these matters cannot be addressed in my open judgment. However, I have addressed these matters in detail in my closed judgment.
- For present purposes, I have assumed that the arrest, detention and deportation of the Respondents were not in accordance with Somaliland law. However, even when these considerations of illegality are brought into account, I do not consider that the high threshold which must be crossed to render these proceedings an abuse of process has been crossed in this case. Cases such as Bennett and Mullen and the other abduction cases are, to my mind, distinguishable.
- While I accept that the categories of abuse of process are not necessarily limited to situations such as were found in Bennett and Mullen, this stage of the evaluation ultimately comes down to a single value judgment. Having regard to the entirety of the open and closed evidence, I do not consider the control order or the TPIM proceedings to have been rendered offensive to the court's sense of justice and propriety, nor do I consider that to uphold the orders made would undermine public confidence in the legal system or bring it into disrepute.
- Furthermore, I consider that it is necessary, when considering whether these proceedings constitute an abuse of process, to evaluate the considerations of policy and justice in play in these proceedings. This examination reinforces my conclusion. While it is true that the Respondents have not been subjected to criminal proceedings in respect of terrorism-related activity on their return to the United Kingdom, the orders made against them have made major inroads into their civil liberties. On the other hand, the court is bound to have regard to the purpose of the legislation with which we are concerned. Here, quite exceptional powers have been conferred on the Secretary of State to act to protect members of the public from a particularly grave terrorist threat. The proceedings are an essential adjunct of those powers, intended to ensure by judicial supervision, that those powers are exercised lawfully. There is an important public interest that control orders and TPIMs should be made where a particular risk makes it necessary to do so.
- Here I make clear that the court cannot simply subscribe to the view that the end justifies the means. A striking demonstration of this is provided by Mullen where the conviction of an admitted terrorist was quashed. Counsel for the Respondents submit that, by the same token, the orders should be quashed here. However, for reasons set out in my closed judgment, I consider Mullen to be distinguishable. Moreover, it was far from clear that Mullen continued to represent the threat to public safety which I am satisfied the Respondents in the present case represent.
- Having regard to all these considerations, I have come to the conclusion that the control orders and TPIMs should not be quashed on grounds of abuse of process.
VI. PUBLIC LAW CHALLENGES
- A number of challenges were advanced by the Respondents on conventional public law grounds.
- Both Respondents submit that in deciding to make control orders and TPIMs in their cases the Secretary of State wrongly disregarded their allegations as to the events which took place in Somaliland ('the Somaliland matters'). References below to "the Somaliland matters" are references to the allegations made by the Respondents. In this regard they point to their allegations of mis-treatment, illegality and complicity by Her Majesty's Government. This, they submit, constituted either an error of law or a failure to have regard to relevant considerations.
- The submission has its origin in the advice to the Secretary of State dated 12 April 2011 in relation to the making of the control order in the case of CF. At paragraph 30 the Secretary of State was advised that these matters had 'no bearing' on the decision.
"As you will be aware, [CF's] mother is currently pursuing a claim for Judicial Review arising from his detention in Somaliland and alleged UK involvement. We understand that, when stopped and interviewed at Port on his return to the UK, [CF] suggested that he had been mistreated in Somaliland and that British operatives may have been present at his detention. Separately, [CC's] legal representatives on 11 April issued a letter before action, naming the Metropolitan Police and Secretary of State for the Home Department as Defendants, claiming that his port-stop and interview under Schedule 7 TACT on return to the UK was unlawful. Further advice on the matters will be provided separately in due course. However, these claims have no bearing on the decision to impose a control order [CF]."
This approach is also reflected in Tim Foy's witness statement dated 4th April 2012 and signed on 17th April 2012 in which he stated:
"The Home Secretary was advised that these claims had no bearing on the decision to impose a control order on [CF]."
Similarly, the witness statement of Peter Hill dated 13th April 2011 states:
"Although this has no bearing on the decision to make a control order, the Secretary of State is aware of pre-action correspondence sent to other government departments by [CF's] mother relating to the circumstances and conditions of his arrest and detention in Somaliland."
- In an alternative formulation of the submission, they submit that the Secretary of State must be taken to have proceeded on an erroneous understanding that the deportations of CC and CF to the United Kingdom were lawful under the local law.
- The decision to impose a control order on CF clearly proceeded on the basis that the Somaliland matters were irrelevant to that decision.
- In CC's case the control order was made before any of the matters alleged to have occurred in Somaliland could have occurred. Nevertheless, Mr Otty submits that when the Secretary of State was considering whether to make a contingent control order against CC, either she must have been told that certain events were about to unfold in Somaliland, the legality of which was irrelevant to her decision, or the matter was simply not addressed at all. On this basis he says that the decision to make a contingent control order against CC was flawed. Further or alternatively, he submits that the decision to go ahead and serve the control order on CC when he returned to the United Kingdom was flawed for the same reason.
- On behalf of the Secretary of State, Mr O'Connor in his closing submissions accepted that this is a live issue in respect of the control orders against both CC and CF because these considerations were left out of account. Nevertheless, he submits that these considerations were wholly unrelated to the statutory conditions for making a control order and that in those circumstances the Secretary of State did not act unlawfully in treating the Somaliland matters as having no bearing on the decision as to whether or not to make a control order. He submits that she was entitled to reach her decision on the imposition of a control order solely by reference that the statutory risk-based criteria, in particular involvement in terrorism-related activity and necessity.
- So far as the TPIMs are concerned, the Respondents maintain that here too the Secretary of State's decisions are flawed by a corresponding error of law or failure to take account of the Somaliland matters. Here they rely on the following matters.
(1) The Treasury Solicitor's letter of 1st August 2011 appears to regard the allegations of what occurred in Somaliland as distinct from the national security issues.
(2) The Treasury Solicitor's letter of 21st October 2011 states that it is the Secretary of State's position that the Somaliland allegations are irrelevant to these proceedings.
(3) Susan Hadland in her first witness statement in the matter of CF, dated 15th December 2011 states that the Secretary of State is resisting the claim that the allegations of UK complicity in the arrest, detention and ill-treatment by the Somaliland authorities are relevant to the control order proceedings.
- On behalf of the Secretary of State Mr O'Connor submits that I should not draw the inference that the same approach was adopted in December 2011 and January 2012 as had been adopted in the case of the control orders. He submits that the procedural position had changed very considerably by then, most notably because Ouseley J. had ruled on 9th December 2011 that there was an abuse of process jurisdiction in control order and TPIM proceedings. He points to contemporaneous documents which, he says, are framed in different terms from those at the time of the making of the control orders. He also complains that this matter has been developed by the Respondents in their closing submissions notwithstanding that neither DA nor Mr Eyre was challenged on whether the Secretary of State was advised as previously to disregard the alleged Somaliland matters in making the TPIM decisions.
- It is unsatisfactory that this submission should be made by the Respondents in relation to TPIMs in circumstances where this matter was not explored with the witnesses. However, there is no evidence on behalf of the Secretary of State asserting that the making of the TPIMs was approached on a different basis. Furthermore, the change in the language used in the documents is not, to my mind, significant, in particular given that it has been throughout and remains the position that the Secretary of State that the Somaliland allegations were not relevant to the decision she had to make. Mrs. Hadland's statement on 15th December 2011 that the Secretary of State is resisting the claim that the allegations of UK complicity in the arrest, detention and ill-treatment by the Somaliland authorities are relevant to the control order proceedings seems to me to be a fair statement of the Secretary of State's position at that time. Accordingly, I am prepared to proceed on the basis that the Secretary of State's approach to this matter in respect of the control orders applied equally to the TPIMs.
- The submissions on behalf of the Respondents as to the relevance of the Somaliland matters fall into two categories. First, it is said that these matters are relevant to an abuse of process or the exercise of discretion. This submission is made on behalf of both CC and CF. Secondly, on behalf of CF only, it is submitted that these matters are relevant to the statutory conditions for making a control order or TPIM. These matters will be considered in turn.
Abuse of Process / Discretion
- On behalf of CC Mr Otty submits that these matters were at least potentially relevant because they had the potential to show that the Secretary of State was abusing the process of the court by applying for permission to make and seeking to uphold a control order or TPIM. Where a decision to seek permission for and then make an order is tainted by an error of law, the ordinary consequences should follow: the decision should be quashed ab initio. The advice which the Secretary was given was erroneous because the judgment of Ouseley J. now establishes that there is an abuse of process jurisdiction in these proceedings. The fact that the Secretary of State may have believed in good faith that the legal advice she was receiving was correct is beside the point. (AN and others v Secretary of State for the Home Department  EWCA Civ 869 at paras 24-26). Mr Friedman makes a similar submission on behalf of CF.
- I consider that the Somaliland matters were potentially relevant to the Secretary of State's decisions in two ways. First, the Secretary of State was required to have regard to these matters when considering a question she had to address, namely whether the necessary applications to the court might be an abuse of process. Secondly, as Mr Friedman points out, the Secretary of State was not under an obligation to make the orders. She had a discretion and the allegations were potentially relevant to the exercise of that discretion. In this regard I have in mind, in particular, Mr Otty's submission that the statutory purpose of both the prevention of Terrorism Act 2005 and the Terrorism Prevention and Investigation Measures Act 2011 is to control the risk presented by those present in this jurisdiction. The allegations were relevant as to how CC and CF came to be in this jurisdiction.
- However, for the reasons set out earlier in this judgment and in my closed judgment, I have come to the conclusion that there was no abuse of process in these proceedings. Had the Secretary of State considered the allegations in making her decisions on control orders and TPIMs and concluded that it would have been an abuse of process to apply to the court for permission to make the order she would have been mistaken. Moreover, concern that it might be an abuse of process would not have been a good reason for declining to make the order. The decision cannot be impugned for a failure to consider whether a proposed course of action was or was not an abuse of process when it has been shown not to be an abuse of process.
- I accept that the submission based on a failure to take account of a relevant consideration in the exercise of a discretion is of wider scope than the submission based on an abuse of process. Furthermore, I am willing to assume for present purposes, without deciding the point, that the Somaliland matters were matters which the Secretary of State was required to take into account in exercising her discretion as to whether to impose control measures. It is therefore necessary to consider whether the Secretary of State might have exercised her discretion differently had she been advised that the Somaliland matters were relevant or had she been aware that there was an issue as to whether the deportations were in accordance with the local law. However, I have come to the clear conclusion that the Secretary of State would inevitably have exercised her discretion in precisely the same way had she taken account of these matters. I have firmly in mind the note of caution expressed by Mitting J. in AT and AW  EWHC (Admin) 512 in relation to the court's drawing such conclusions in the context of national security decisions by the Secretary of State because of the deference due to her expertise in the field. However, in that case Mitting J. was concerned with a failure to consider a matter directly relevant to the statutory criteria relating to national security issues. Having regard to the purpose of the legislation, the decisions taken by the Secretary of State as to the risk posed by CC and CF and the necessity of imposing control measures, the strength of the evidence on which those decisions were based and the clear line which has been taken throughout by the Secretary of State and her advisors I have no doubt that, if she had been advised that the Somaliland matters were relevant to the exercise of her discretion as to whether to make the orders, she would inevitably have come to the same conclusion. That is so, a fortiori if one proceeds on the hypothesis that the making of the order would not have been an abuse of process. Alternatively, to employ the terminology of McCombe J. in Secretary of State for the Home Department v BF  EWHC 1718 (Admin) at paragraphs 56-59, the nature of the Somaliland matters was not such as to render them potentially critical to the decisions to make the orders.
- On behalf of CF, Mr Friedman submits that the Somaliland matters were potentially relevant in various ways to the statutory criteria which the Secretary of State was required to apply.
- First, it is said that the Somaliland matters were relevant to the assessment of CF's involvement in terrorism-related activity because the assessment was based in part on the Somaliland interviews and a comparison between them and CF's Schedule 7 interview. Mr Friedman submits that these interviews should not have been taken into account without considering the effect of Somaliland matters on their reliability. It is correct that the assessment before the Secretary of State at the time she made the control order against CF did rely on the Somaliland interviews and the Schedule 7 interview in this way. However, reliance on the Somaliland interviews was withdrawn by the Secretary of State on the 21st October 2011 before the making of the TPIM against CF. Accordingly, this submission, to the extent that it relies on the Somaliland interviews, can run only in relation to the control order. The Schedule 7 interviews, on the other hand, did form part of the assessment before the Secretary of State at the time she made the TPIM against CF. However, in the event, I am entirely satisfied that the Somaliland interviews and the Schedule 7 interview were not central to the national security case and that there was an abundance of other material on the basis of which the Secretary of State would inevitably have come to the same conclusions in relation to CF.
- Secondly, Mr Friedman submits that the Somaliland matters were relevant to the assessment of the risk posed by CF and the necessity for a control order or TPIM in that no consideration was given to the extent to which CF might have been deterred from future terrorism-related activity as a result of his detention in Somaliland and the treatment he received there. In particular attention is drawn to the description contained in Mr Wood's email of 15th February 2011 and its account of CF's distressed condition. This submission is founded on the judgment of Mitting J. in AT and AW. There the Secretary of State had taken the decision to impose a control order on a materially erroneous basis which the judge considered went to a factor of critical importance in the decision. The subject, AW, had served two prison sentences. The Secretary of State had been incorrectly informed that AW had performed further terrorism-related activity after completing the first sentence, whereas the second sentence was in fact imposed in respect of conduct which occurred before the first sentence was imposed. As a result AW's control order was quashed. By contrast, in the present case there was no misrepresentation as to the alleged terrorism-related activity and there is no evidence that the relatively brief period of CF's detention in Somaliland or his treatment there may have acted as a deterrent. Furthermore, bearing in mind the entirety of the evidence in this case, I consider that the Secretary of State would inevitably have come to the same conclusion in relation to the future risk posed by CF had she taken these matters into account.
- Thirdly, Mr Friedman submits that the Somaliland matters were relevant to the proportionality of the control order and the obligations imposed on a man who was complaining of arbitrary detention and ill treatment. Here, he places particular reliance on the effect of the alleged ill treatment on CF's psychiatric condition and says that it was obviously relevant to the decisions to prohibit association, to impose a geographical boundary and to impose compulsory relocation to Norwich. These obligations, it is said, were particularly onerous and led to the isolation of CF.
- Here, Mr O'Connor on behalf of the Secretary of State accepts that he is not in a position to say that the Secretary of State did consider the effect of the alleged treatment in Somaliland on the proportionality of the control order or its obligations or that the Somaliland matters are not relevant to the obligations imposed. However, he submits that had the Somaliland matters been considered the decision would inevitably have been the same. He contrasts the allegations of ill treatment in Somaliland at the time of making the control order, which he emphasises were no more than allegations, with the material which was before the Secretary of State some eight months later when she was considering the relocation obligation. That material included expert reports on CF's physical and mental condition. In particular, there was a psychiatric report dated 26th October 2011 from Dr. Nigel Blackwood, a consultant forensic psychiatrist, in relation to the effect of relocation under the control order. Dr. Blackwood concluded that although CF was not suffering from post-traumatic stress disorder as a result of events in Somaliland, he was suffering from adjustment disorder as a result of being relocated to Norwich. He considered that none of the depressive symptoms was of sufficient severity or prominence to justify a diagnosis of a depressive disorder. However, the adjustment disorder had the potential to worsen into a fully fledged depressive disorder if the principal stressor, familial separation under the control order, did not remit or resolve. These reports were considered by the Secretary of State who nevertheless decided that the relocation order should be upheld, even when there was only a short period of the order left to run. To my mind, this is a conclusive demonstration that, had the Secretary of State considered the Somaliland matters at the time of the making of the control order, she would inevitably have come to the same conclusion.
Further challenges on public law grounds in closed hearing
- In closed hearing the Special Advocates advanced further submissions challenging the orders on public law grounds. For the reasons set out in my closed judgment, those challenges also fail.
VII. NON-DISCLOSURE TO THE COURT
- The Respondents submit that there has been a failure by the Secretary of State to make full and frank disclosure to the court on the 'without notice' applications to the court for permission to make the Control Orders and TPIMs.
- It is well established that a party seeking relief from the court on a 'without notice' application is under a duty to make a full, fair and accurate disclosure of all material information to the court and to draw the court's attention to significant factual, legal and procedural aspects of the case. Furthermore the applicant must act with the utmost good faith and is obliged to give full and frank disclosure of all matters which the absent parties could be expected to make had they been present. In Re Stanford International Bank Ltd  Ch 33 Hughes LJ expressed the matter as follows:
"It is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to an obligation not to misrepresent. It consists of a duty to consider what any other interested person would, if present, wish to adduce by way of fact, or to say in answer to the application, and to place that material before the judge. That duty applies to an applicant for a restraint order under POCA in exactly the same way as to any other applicant for an order without notice.
In effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and having answered that question, that is what he must tell the judge." (at paragraph 191)
- As Bingham LJ observed in Re Crown Court at Lewes ex parte Hill (1991) 93 Cr.App.R. 60, at p. 69:
"The judge should be told anything to the knowledge of the party applying that might weigh against making an order."
- These principles undoubtedly apply in their full rigour to applications to the court to make a control order or TPIM. Indeed, this may be thought to be an a fortiori case bearing in mind the high degree of resulting interference with individual liberty and the likely substantial delay before an inter partes hearing takes place. While I accept that the disclosure required will depend upon the ambit of the procedure in question, the statutory criteria to be applied and the issues in the proceedings, I consider that the obligation in the present case was not limited to drawing the court's attention to all matters relevant to the statutory criteria but also extended to require disclosure of matters which would be capable of founding an argument of abuse of process.
Disclosure on the applications for permission to Impose the TPIMS
- It is convenient to consider first the disclosure made to the court on the applications for permission to make TPIMs. On the 12th January 2012 Ouseley J. made orders granting permission to impose TPIMs on CC and CF.
- In the case of CC the court was informed of the following matters:
(1) CC was arrested on 14th January 2011 in Somaliland with CF and Hersi. All three were accused of conspiring to commit offences against national security. However, the Somaliland authorities did not bring prosecutions against them owing to a lack of admissible evidence. Hersi was released locally in Somaliland while CC and CF were deported to the United Kingdom "in accordance with Somaliland law" on 13 March 2011 arriving on 14th March 2011. (First National Security Statement in support of CC's TPIM paragraph 19).
(2) A control order had already been made in respect of CC on 13th January 2011 and was served on 14th March 2011. (First National Security Statement in support of CC's TPIM paragraph 19).
(3) CC is at the pre-action stage of a civil damages claim against the United Kingdom Government in which he alleges the United Kingdom Government was complicit in his arrest, detention and alleged torture in Somaliland and his deportation to the United Kingdom. These allegations have also been raised in the control order proceedings in which the court is considering an argument by CC that if these allegations are true the Secretary of State's decision to impose a control order was an abuse of power and/or the control order proceedings are an abuse of process. (Statement of Susan Hadland dated 12th January 2012, paragraph 14).
(4) On 20 December 2011 the Administrative Court handed down a judgment in a judicial review brought by CC against the Metropolitan Police Commissioner and the Secretary of State for the Home Department. The court ruled that the examination of CC under Schedule 7 of the Terrorism Act 2000 on his return to the United Kingdom from Somaliland was unlawful. (Statement of Susan Hadland dated 12 January 2012 paragraph 14).
- In the case of CF the court was informed of the following matters:
(1) On 14 January 2011 CC, CF and Hersi were arrested by the Somaliland Police. (First National Security Statement in support of the TPIM, January 2012 paragraph 38).
(2) The Somaliland authorities did not charge CC or CF. The Security Service understands that this was because of insufficient admissible evidence. Upon release CC and CF were deported to the United Kingdom "in accordance with Somaliland law" while Hersi was released locally in Somaliland. (First National Security Statement in support of CF's TPIM paragraph 39).
(3) CF is at the pre-action stage of a civil damages claim against the United Kingdom Government in which he alleges that the United Kingdom Government was complicit in his arrest, detention and alleged torture in Somaliland, and his deportation to the United Kingdom. These allegations have also been raised in the control order proceedings in which the court is considering an argument by CF that if these allegations are true the Secretary of State's decision to impose a control order was an abuse of power and/or the control order proceedings are an abuse of process. The Secretary of State is resisting the claim that the allegations of United Kingdom complicity in the arrest, detention and ill-treatment by the Somaliland authorities are relevant to the control order proceedings. (Witness statement of Susan Hadland dated 15 December 2011).
- Furthermore, Ouseley J. was already aware of the allegations made in the proposed abuse of process application as a result of the directions hearings held before him in 2011 and the hearing before him on 9 December 2011 in which he held that there was an abuse of process jurisdiction in this context. In addition to the specific matters identified above he was aware of the following matters:
(1) CC's case was that he had been arrested by the Somaliland authorities and that the operation had been conducted "with the complicity of the United Kingdom authorities, if not actually being directed by them". (CC's first witness statement dated 9 June 2011, paragraph 4).
(2) CC's request for further information relating to the abuse of process argument set out clearly his position on abuse of process. It stated that the request was made in order to allow CC to mount an effective challenge to these proceedings by reference to the court's abuse of process jurisdiction identified in R v Horseferry Road Magistrates' Court ex parte Bennett  1 AC 42. (CC's Request for Further Information, dated 14 November 2011).
(3) CF's first witness statement dated 22nd August 2011 gave a detailed account of his version of events in Somaliland.
(4) CF's note to the court setting out his abuse of process argument and requesting disclosure and his reply to the Secretary of State's response set out fully the way that CF put his case on abuse. (CF's note to Court dated 31st October 2011).
(5) The court was informed that the Security Service understood that the Somaliland authorities had not charged CC or CF because of insufficient admissible evidence. (First National Security Statement in support of CC's Control order April 2011; First National Security Statement in support of CF's Control order dated July 2011).
(6) For the hearing on 9th December 2011 there were skeleton arguments canvassing the abuse of process issues fully.
(7) In his judgment of 9th December 2011 Ouseley J. made clear his understanding that further disclosure of documents in relation to the abuse of process arguments would take a considerable time. (CC and CF v Secretary of State for the Home Department  EWHC (Admin) 3647).
- In all the circumstances, it is clear that full disclosure was made to Ouseley J. prior to his grant of permission to impose the TPIMs.
What disclosure was made on the applications for permission to impose the control orders?
- We are not concerned here with disclosure on the application for permission to impose a control order on CC made to Holroyde J. in December 2010 because that order was subsequently revoked before it was served.
- The application for permission to make a second contingent control order against CC was considered by Silber J. on 13th January 2011. That was, of course, before the occurrence of any of the alleged events in Somaliland on which the abuse of process application was subsequently founded. On that occasion the judge was simply told that the Secretary of State understood "that [CC] will be imminently arrested in Somaliland and it is possible that he will be deported from Somaliland to the UK. This order will only be served if [CC] returns to the UK from Somalia." (Witness statement of Susan Hadland dated 13th January 2011).
- The application for permission to make a control order against CF was considered by Silber J. on 13th April 2011. On that occasion the only information with regard to the Somaliland matters with which he was provided was the following:
"Although this has no bearing on the decision to make a control order, the Secretary of State is aware of pre-action correspondence sent to other Government departments by [CF's] mother relating to the circumstances and the conditions of his arrest in Somaliland. This was responded to by the Treasury Solicitor's Department on 15 March 2011 and the claimant has not to date sought to take this matter further". (Witness statement of Peter Hill dated 13 April 2011 in support of CF's control order).
- I consider that the disclosure made to Silber J. on 13th January 2011 and 13th April 2011 was deficient. To my mind, it is no answer to a charge of material non-disclosure that the abuse of process application has proved unsuccessful before me. The duty of disclosure extends to require disclosure of material which is capable of supporting an allegation of abuse of process.
- The question then arises as to what remedy should be granted in respect of this non-disclosure of relevant matters on the applications to Silber J. for permission to make the control orders. The Respondents submit that I should quash the orders.
- I understand that no decided case addresses the question of how the court should approach the consequences of non-disclosure in a case concerning control orders or TPIMs. I consider that the principles applicable when non-disclosure occurs in 'without notice' applications in criminal cases or private law civil cases require to be modified in cases such as the present to permit the court to take account of the purpose of the legislation and the public interests which are in play.
- In the present case I have had a particular regard to the following considerations:
(1) The making of the control orders resulted in a considerable interference with the civil liberties of the Respondents.
(2) The fact that a control order or a TPIM can only be made with the permission of a High Court judge is an important constitutional safeguard. If it is to be effective the judge must be fully informed of the relevant circumstances.
(3) However, the applications to the court for permission to make control orders were not an abuse of process, for the reasons set out in my open and closed judgments.
(4) Contrary to the submission of Mr Friedman on behalf of CF, I do not consider that the non-disclosure was deliberate. There is nothing in the materials I have seen to support the view that this was a deliberate attempt improperly to manipulate the process. On the contrary, all the indications are that the view was genuinely but erroneously held that the matters which were not disclosed had no bearing on the court's decisions.
(5) These statutory powers are conferred on the Secretary of State to enable her to act to protect the public from terrorism-related activity. In the present case she concluded that these measures were necessary for the protection of the public. These considerations necessarily weigh very heavily in the exercise of my discretion, not least when I have regard to the strength of the evidence on which these conclusions were reached.
(6) I note that even in the context of private law civil claims where non-disclosure has resulted in the grant of an injunction it does not necessarily follow that the court must discharge the injunction. (Brinks Mat Ltd v Elcombe  1 WLR 1350 at pp. 1357E, 1358 C-G.)
- Having regard to all these matters, I have come to the clear conclusion that it would not be appropriate to quash the control orders in respect of CC and CF on grounds of non-disclosure and in the exercise of my discretion I decline to do so. In these circumstances, it is not necessary for me to consider a further submission by Mr O'Connor on behalf of the Secretary of State that the effect of the legislative scheme of the Prevention of Terrorism Act is such that the court has no power to quash a control order for procedural error.