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||Neutral Citation Number:  EWHC 843 (Admin)
||Case No: PTA/01/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WILKIE
|| In the matter of the Terrorism Prevention and Investigation Measures Act 2011
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Danny Friedman QC and Tom Hickman (instructed by Irvine Thanvi Natas) for the Appellant
Andrew O'Connor and Rupert Jones (instructed by the Treasury Solicitor) for the Respondent
Shaheen Rahman (instructed by the Special Advocates Support Office) as Special Advocate for CF
Hearing dates: 5 & 7 March 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE WILKIE:
- By Notice of Appeal dated 10 January 2013, CF appeals against the decision of the Secretary of State on 7 January 2013 to refuse to vary certain measures imposed under a TPIM notice, in particular the measures concerning; (1) overnight residence; (7) electronic communication devices; (8) association; (9) work or studies; and (10) reporting.
- CF is a British citizen of Somali descent. In April 2008 he was prosecuted for an offence under Section 5(1)(a) of the Terrorism Act 2006. It was alleged he had attempted to travel to Afghanistan for the purposes of engaging in acts of terrorism. He was acquitted after a trial.
- In June 2009, during his trial, he absconded and travelled to Somalia for terrorist related activities including attending a terrorist training camp and involvement in fighting alongside Al-Shabaab.
- Between 2009 and 2011 he engaged in other terrorist related activities such as advising and recruiting fighters in the UK for fighting overseas, fundraising for Al-Shabaab and, shortly before his arrest, was potentially involved in attack planning.
- CF says that in December 2010 he decided to return to the UK by a safe route through Somaliland with a companion CC. On 14th January 2011, he and CC were detained by the authorities in Somaliland. He was held there until 13th March 2011 during which period he made complaints to the Foreign and Commonwealth Office consular officials about his arbitrary confinement and physical mistreatment. On 14th February 2011 he was visited by a UK consular official in Hargesia Prison who described his account of ill treatment in graphic terms.
- On 14 March 2011 he was returned to the UK. His ill treatment was said by him to have continued after the meeting with the consular official.
- Having absconded, he pleaded guilty to an offence under the Bail Act 1976 and was sentenced to a term of imprisonment from which he was released on 11 May 2011.
- On that date a control order was imposed. It contained a residential obligation that he reside in Norwich, though his family resides in London. A psychiatric report, dated 26th October 2012 from Dr Blackwood, stated that, during the period in Norwich, he suffered from an adjustment disorder. He has been seeing a therapeutic counsellor at the Helen Bamber Foundation throughout his period on administrative measures.
- On 16 December 2011 the Secretary of State decided to place CF on a TPIM and he was served with a TPIM Notice on 3 January 2012, following repeal of the Prevention of Terrorism Act 2005. This included a residential requirement at an address in London, relocation to Norwich being no longer available to the Secretary of State under the new regime.
- In July 2012 Lord Justice Lloyd Jones heard review hearings in respect of the control order and the TPIM imposed on CF and CC. Judgment was handed down on 19 October 2012. Lord Justice Lloyd Jones upheld the national security case against the appellant and upheld the necessity for a TPIM Notice. He also upheld the specific measures imposed and found that the appellant had lied during the course of the proceedings.
- In August 2012 CF notified the Secretary of State that he would be starting an undergraduate degree course at a London University. The Secretary of State acknowledged receipt of the notification and the TPIM was varied accordingly. The academic year began in September 2012.
- In November 2012 the Security Service recommended that the TPIM be extended for a second year. On 12 November 2012 the Secretary of State wrote to the appellant asking for representations on whether the TPIM should be renewed. On 30 November 2012 the appellant submitted written representations taking issue both with the necessity for a TPIM and seeking to vary the measures by specific variation requests concerning: overnight residence, electronic communication devices, association, work/studies and reporting.
- On 2 January 2013 the TPIM was extended for a further year and on the 7 January the Secretary of State wrote refusing each of the variations sought by the appellant.
- On 10 January 2013 this appeal was lodged against the refusal of those variations relying upon the arguments in the letter of 30 November 2012.
The Legal Framework
- The power to impose a Terrorism Prevention and Investigation Measure (TPIM) is given to the Secretary of State by Section 2 of the 2011 Act, if conditions A-E in Section 3 are met. Section 3 identifies conditions A-E amongst other ways as follows:
"(4) Condition D is that the Secretary of State reasonably considers that it is necessary for the purposes connected with preventing or restricting the individual's involvement in terrorist related activity for the specified terrorism prevention and investigation measures to be imposed on the individual"
- Section 5(1) provides that a TPIM remains in force for a year. Section 5(2) empowers the Secretary of State to extend a TPIM notice for a further year only if conditions A, C and D continue to be met (Section 5(3)). A TPIM may only be extended on one occasion.
- Section 12 concerns variation of measures and provides as follows:
(2) The individual to whom a TPIM notice relates may make an application to the Secretary of State for the variation of measures specified in the TPIM notice.
(3) The Secretary of State must consider an application made under subsection (2)
(4) An application under subsection (2) must be made in writing
(5) The Secretary of State may by notice request the provision within such a period of time as the notice may specify of further information from the individual in connection with an application under subsection (2)
(6) The Secretary of State is not required to consider an application further unless any information requested under subsection (5) is provided in accordance with the notice mentioned in that subsection
- Section 16 of the Act makes provision for appeals in the following terms:
"(1) If the Secretary of State extends or revives a TPIM notice …
a) the individual to whom the TPIM notice relates may appeal to the Court against the extension or revival, and,
b) the function of the Court on such an appeal is to review the Secretary of State's decisions that conditions A, C and D were met and continue to be met …
(3) If the individual to whom a TPIM notice relates makes an application to the Secretary of State for the variation of measures specified in the TPIM notice …
a) the individual may appeal to the Court against any decision by the Secretary of State on the application, and,
b) the function of the Court on such an appeal is to review the Secretary of State's decisions that the measures to which the application relates were necessary and continue to be necessary for purposes connected with preventing or restricting involvement by the individual in terrorism related activity …
(6) In determining the matters mentioned in subsections 1-5 the Court must apply the principles applicable on an application for judicial review.
(7) The only powers of the Court on appeal under this section are –
(b) the power to quash measures specified in the TPIM notice
(c) The power to give directions to the Secretary of State for or in relation to –
(ii) The variation of measures the TPIM notice specifies …
(8) If the Court does not exercise any of its powers under subsection 7 it must dismiss the appeal.
- Section 30(4) provides:
"For the purpose of determining what measures may be imposed on an individual, it is immaterial whether the involvement in terrorist related activity to be prevented or restricted by the measures is connected with matters to which the Secretary of State's belief for the purpose of condition A relates."
The applicable legal principles
- The Secretary of State contends, and it is not contested, that it is not part of the Court's function in determining a s.16 variation appeal to review the Secretary of State's belief that the appellant is or has been involved in terrorism related activity (condition A of s.3)(see AV and AU v SSHD  EWHC 1895 (Admin) at para 7).
- The Secretary of State also contends, and it is not contested, that the court's primary function in a s.16 appeal is to review the necessity for and the proportionality of the challenged measures.
- In this respect guidance is given to the Court by the decision of the Court of Appeal in MB v SSHD  QB 415 at paragraph 63-65 (although this guidance was in the context of the 2005 Act it is accepted as applicable to the TPIM regime).
- In those paragraphs guidance is given on the question whether the Secretary of State's decision on necessity was flawed in the following terms:
"63. 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 suspect. They may also depend on 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.
64. The Secretary of State is better placed that the Court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State. That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the Courts of this country and by the Strasbourg Court …
65. Notwithstanding such deference there will be scope for the Court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive and, in such cases, the court should explore alternative means of achieving the result. The provision of section 7(2) for modification of a control order "with the consent of the controlled person" envisages dialogue between those acting for the Secretary of State and the controlled person and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations."
- The Court must apply a test of proportionality, have regard to the nature of the allegations of terrorist related activities against the person and give intense scrutiny to the evidence. The Court must assess the situation at present as well as when the respondent made her decisions.
- The test is well established in the following terms (see De Freitas v Permanent Secretary of Ministry of Agriculture and Housing and Lands 1999 1 AC69);
1. The objective must be sufficiently important to justify limiting a fundamental right;
2. The measures must be designed to meet the objective and must be rationally connected to it; and
3. The means used to impair the right or freedom must be no more than is necessary to accomplish the objective.
Furthermore, the graver the impact of the measure the more the compelling the justification will need to be and the greater the care with which it must be examined (see A No1  2 AC 68 at para 178)
- I am also reminded that the term "necessity" is not to be equated with "useful", "reasonable" or "desirable". In addition the court must examine each measure individually and should not too readily accept claims to be deferential bearing in mind that the Respondent has not heard or read all the evidence which is before the court.
- In addition the Court must apply the disclosure obligation derived from AF (No3)  2 AC 269, namely that CF must be informed of sufficient details of the case against him to enable him effectively to meet that case, including by providing instructions to the Special Advocate, and that this applies not just to the national security case against CF but also the case in respect of the necessity of each of the measures at issue in this appeal (see SSHD v AS  EWHC 2564 at 9 where Mr Justice Collins said:
"(all) significant material – should be sufficiently disclosed … by significant I mean material which could be regarded as essential in establishing either element of what is required for a particular control order."
- I am also reminded that, in so far as reasons for any obligations are not made sufficiently known to CF to enable him to provide an effective rebuttal, the court must not rely on such reasons or evidence.
The judgment of Lloyd Jones LJ
- At paragraph 47 of his open judgment, Lloyd Jones LJ made the following national security findings against CF:
"47. 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 had 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 attempt at 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 Somali 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 fundraising 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."
At paragraph 54 of the judgment, Lord Justice Lloyd Jones said:
"CF was not merely involved in the network but played a substantial role"
- At paragraph 48-49 of the judgment Lord Justice Lloyd Jones made a number of adverse findings as regards CF's credibility:
"48. … however, I consider that there was no satisfactory explanation for CF's failure to give oral evidence.
49. Furthermore, I accept the submissions of the Secretary of State that it is plain that CF has lied in the course of these proceedings.
… (two specific instances are then set out)
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"
- The Secretary of State contends, it is not contested, and I accept, that this Court's approach to the findings of Lord Justice Lloyd Jones should be as follows:
a) The adverse credibility findings can be taken in to account as to the weight this Court accords to CF's evidence in these proceedings in the normal way. While CF gave evidence to the court as to the extent to which he currently stays at the library in the evening as late as he can whilst accommodating eating with his family and complying with the 9pm deadline, the weight that I accord to his evidence is informed by the adverse credibility findings of Lloyd Jones L.J. in his judgment of 19 October 2012.
b) In analysing the necessity of the challenged measures, the Court should treat the national security case as made out and should consider the necessity of the challenged measures by reference to the national security findings made by the Judge in the Section 9 proceedings and any further national security evidence served for the purposes of this appeal.
c) However, in respect of the Judge's previous findings in relation to the necessity of the challenged measures, that is the matter upon which this Court is required to reach its own judgment and the Court is required to rule on the necessity of the measures as at present. Thus, whilst the recent findings of Lord Justice Lloyd Jones in respect of necessity and proportionality are worthy of consideration, this Court must reach its own view on the evidence before it as to whether each of the challenged measures was, and continues to be, necessary and proportionate.
- CF relies on his witness statement signed on 29 January 2013 and a further witness statement dated 6 March 2013. In addition he gave evidence orally in which he expanded on the difficulties which the contested measures concerning curfew, reporting, association and electronic communication devices gave rise. He also dealt with 2 recent matters. The first, referred to in the Secretary of State's evidence, is the absconding of Ibrahim Magag (see below), the second is his arrest for an apparent breach of another measure not permitting him to have more than £150 cash (measure 5.4). Sums amounting to £600 were withdrawn from his bank account between 24 December and 4 January. He has said that they were for his sister to purchase presents and to pay off loans to his family. He also stated that £12,000 cash found in his family home was not his and had nothing to do with him. At the moment no further action has been taken in respect of this matter.
- The Secretary of State relies on the Security Service statement in response to the notice of appeal dated February 2013, amended in March 2013, as well as the statement in support of the extension of the TPIM dated November 2012, amended in March 2013 and a second such statement dated March 2013. She also relies on a witness statement from Charlotte Taylor, a Home Office civil servant, dated 11 February 2013.
- On 21 February 2013 directions were made in respect of this hearing. They did not make any provision for cross examination of witnesses or for oral evidence. I agreed that CF should give oral evidence. It became clear in correspondence that CF wished to question the Secretary of State's witnesses from the Security Service and the Home Office. The Secretary of State indicated that no such witness would be in attendance for that purpose and that there had been no such provision in the directions. CF's solicitors have submitted a series of questions to the Home Office and the Security Service and those questions have been answered in written form.
- At the outset of the hearing Mr Friedman, for CF, raised the issue of cross examination and indicated that he was content for me to approach the question whether the Secretary of State should be directed to produce witnesses for cross examination on the basis identified by Mr Justice Goldring (as he then was) in the case of AF  EWHC 2001 Admin at paragraph 18-20 of his judgment. In summary, if nothing could be achieved by cross examination, no direction to tender a witness would be made. But the question was constantly to be kept under review and if, at any stage, it seemed that justice required a witness to be called and cross examined, the topic could be reconsidered. It was not suggested at the open hearing that the presence of any witness for the Secretary of State was required on that basis. I have kept the matter under review during the closed hearing. No such application was made then either. I have considered for myself whether cross examination of the witnesses of the Secretary of State or the Security Service would be useful or necessary. I have decided that it would not be, accordingly, I have not received oral evidence from the Secretary of State or the Security Service.
CF's general submissions
- CF contends that, in considering the contested measures I should have regard to the following contextual matters.
- First, no proceedings have been taken alleging any breach by CF of the terms of the TPIM. He has been arrested in respect of going within a prohibited area and in respect of the financial measures, but no further action has been taken after explanations have been given.
- Second, there is no allegation in the open material that CF has engaged in any terrorism related activity since the control order was imposed. If any such contention is made in closed material I should disregard it as CF has not been aware of the gist of any such contention so as to provide the Special Advocate with instructions to deal with any such contention.
- Third, insofar as the Secretary of State seeks to rely on the absconding of Magag; this issue seems not to have informed the decisions of the Secretary of State to extend the TPIM (taken prior to that event) or the decision not to vary the measures in response to the request dated 30 November 2012 as there are no minutes of any meetings dealing with that issue in advance of that decision contained in the decision letter of 7 January 2013.
- Fourth, CF's circumstances have changed completely in that he is now a first year student undertaking a three year degree course, acquiesced in by the Secretary of State, and the Court should subject to intense scrutiny any measure which has the effect of frustrating or inhibiting CF's participation in his course and university life.
- Fifth, in assessing proportionality, regard should be had to the fact that CF has been subject to administrative orders since May 2011, prior to which he was in custody in Somaliland and the UK from January 2011. The TPIM will expire in January 2014 and, it is argued, the issue of proportionality should address varying the measures to enable CF to integrate into normal life. The Secretary of State is criticised for having developed no exit strategy in CF's case other than to record that there remains insufficient evidence to prosecute CF for an offence relating to terrorism, but that prosecution will be kept under review.
- CF relies on a passage in AM  EWHC 1854 Admin at paragraph 30 in the judgment of Mr Justice Mitting where he said as follows:
"As the Security Service and Secretary of State recognise, an exit strategy has to be planned. Deportation is impermissible and prosecution unlikely. The only viable exit strategy is encouraging and facilitating a change in outlook by AM. To that end, it is imperative that he is encouraged to lead as normal a life as possible, consistent with the requirements of public protection. Maintenance of a measure which is either over restrictive or ineffective does not serve that end. Accordingly, even giving due deference to the views of the Security Service and the Secretary of State I am satisfied that the decision to maintain the requirement for prior notification is flawed. It should be replaced by a requirement for notification after the first meeting or gathering or visit at AM's home. This possibility was canvassed during the open hearing and initial drafts have been circulated. I will leave it to the parties to discuss the precise terms of revision of measure 7.2. If agreement cannot be reached I will resolve the difference on paper. "
- I am also referred to paragraph 68 in the judgment of Lord Justice Lloyd Jones where he referred to the above passage in AM. In paragraph 69 he stated that he was unable to conclude that the decisions of the Secretary of State to impose and maintain these measures was flawed, essentially because those matters were not explored with the witnesses and there was no debate as to possible alternative measures. He concluded:
"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."
(The measure in question was the association measure)
The Secretary of State's general submissions on the issue of the necessity for the particular measures.
- The Secretary of State first reminds me of the duration of the terrorist related activity between 2008 and early 2011 sustained in more than one place and of a grave nature; not just facilitation but travelling, training and fighting. Mr Justice Lloyd Jones found CF had a "substantial role".
- Second, I am asked to take into account Lord Justice Lloyd Jones's findings that CF had lied on a number of occasions, including two specific instances. In oral evidence CF accepted that one of those was deliberate to protect his family. The other was not, he said, a lie but was a mistake.
- Third, I am reminded that the necessity for a TPIM is not in issue, it having already been reviewed by Lord Justice Lloyd Jones and extended and there being no appeal in respect of its extension.
- Fourth, I am reminded that the Security Service still assess absconding as being a risk: CF has a track record of absconding whilst on tagged bail and had access to a false Portuguese passport which he used, using contacts and not using the normal route to leave the country, giving rise to the assessment that he may have been assisted in that absconding by the extremist network of which he is a part.
- Fifth, the Secretary of State does not accept that there is a general duty to tailor measures towards the end of a TPIM in order to facilitate assimilation. The case of AM concerned a person who had been subjected to administrative measures for 5 years. The control order regime was, potentially, of indefinite duration and inevitably required positive consideration of rehabilitation or assimilation in the mainstream as a possible exit strategy. A TPIM must expire after a maximum of 2 years and there is no suggestion in the legislation that an exit strategy by way of rehabilitation or assimilation into the mainstream is a requirement.
- Sixth the Secretary of State also reminds me of the recognised position that the Courts, whilst giving intense scrutiny to the measures, should, nonetheless, adopt deference to the expert opinions and judgments of the Security Service and should be careful before taking the lead in suggesting variations. The court should do so only in clear cases.
- Seventh, the Secretary of State points out that CF's circumstances have changed markedly since the imposition of the control order in May 2011. He is no longer obliged to live in Norwich but lives in London, close to his family home and he has embarked on a university course, there being no evidence from him that he is doing other than coping reasonably with it albeit with the inconveniences intrinsic to the TPIM.
- Eighth, it is contended that the starting point should be that a TPIM is necessary; there is no entitlement of CF to have an ordinary social life, given the necessity for a TPIM, because he is a sufficient public risk for a TPIM to have been imposed and extended.
The Individual Measures
The overnight residence requirement
- The overnight residence measure imposes a requirement of residence at a particular address between the hours of 21.00 and 07.00 hours. The request is for a variation of those hours to reduce them from ten to seven hours - between midnight and 07.00 hours. The Appellant contests the current measure on the following basis:
1. It is the maximum permissible under the TPIM Act (see BM v SSHD  1 WLR 2734 Collins J). Whilst many people might regard it as reasonable to be at home between those hours, it is not reasonable to make such an assumption in respect of Muslims, who attend evening and night time prayers, nor students in their early twenties.
2. It is argued that this requirement goes further than is necessary and is not proportionate in that it is not tailored to the objective of preventing CF travelling overseas. Due account has not been given to the investment in his life in London that CF has now made and to the fact that the TPIM will only last until January 2014.
3. It is said to be disproportionate. Changing the time from 9pm to midnight will minimally impair the effectiveness of measures to prevent him travelling but would represent a very substantial improvement to CF's life. It would enable him to stay at the university library until it closes at 11.00pm, using resources to which he does not have access at home. It would enable him to attend evening and night prayers in the summer months, the times of which will otherwise fall within the hours of restriction.
4. CF argues that the Respondent can compensate for the fact that he would be able to be away from home for an extra three hours daily by virtue of the additional level of surveillance now available by the satellite tracking tag he is obliged to wear and, if need be, by a further requirement for him to make phone calls from his dedicated mobile phone at specified times.
5. He also argues that alternative measures to aid his studies, such as reducing the curfew for the 4 days he studies on campus have not been considered.
6. It is argued that this requirement is irrational in that the Respondent has permitted CF to attend the night prayer on occasions when it falls later than 9.00pm but not the, earlier, sunset prayer even when both prayers fall later than 9.00pm. It is also said that the suggestion of the Secretary of State that requests can be made later in the year on a case by case basis, when the time of sunset prayers falls later than 9 pm, is unrealistic as a response would take too long to be forthcoming. It is said to be better to address the issue at this stage as a matter of principle rather than to require an instant response later in the year to ad hoc requests.
- The Secretary of State's position is that it remains necessary and proportionate. The less time CF spends outside his residence, the less time he is able to engage in terrorism related activity, thereby reducing the risk. The present restrictions reduce the window during which CF can meet individuals or extremist associates and visit addresses of concern and reduces the window within which he might abscond.
- The Secretary of State contends that the fourteen hour window from 07.00 to 21.00 is sufficient to enable CF to study and socialise, particularly with his family, whose home is ½ a mile from his present residence.
- The Secretary of State contends that CF has previously been granted permission to be away from his residence to attend evening prayers and that any future request for permission would be considered on a case by case basis.
- The Secretary of State contends that CF's laptop has now been returned to him and that he will be able to use it for study at his home address overnight should he choose.
- The Secretary of State submits that, as currently drafted, this measure is necessary and proportionate.
- Lord Justice Lloyd Jones dealt with this issue at paragraph 65 of his judgment. At that stage the argument was based on CF's inability to attend sunset, morning and night prayers. The Judge noted that these matters were not put to the Secretary of State's witness and he noted that the Secretary of State had modified the measure to permit CF to attend the night prayer. The Judge pointed out that CF's then address was 20 minutes walking distance from his parent's house, so he did not, as he had asserted, have to leave his parents house at 8.00pm of an evening to be home in time. In all the circumstances he considered that CF's overnight residence measure was necessary and proportionate.
Overnight residence requirement: conclusions
- In my judgment, the issue is not one of necessity. It is accepted that there has to be an overnight residence restriction as part of the TPIM. The question is whether starting it at 9.00 pm lacks proportionality which would be better respected by a midnight commencement, given its impact on: his studies; his university based social life; his prayer obligations; and his family life.
- CF did not, in his evidence, identify any particular occasion when the curfew starting at 9.00 pm adversely affected his ability to comply with work obligations. His counsel has said that there was one occasion when he was late delivering a piece of work. That is now in evidence in the form of a witness statement dated 6 March 2013. In that statement he also says he believes his marks are lower than they might be because of this inhibition and he will need to use the library when exams are looming. Even if what he says about the one occasion is true, it falls far short of evidence to support the contention that the 9.00 pm curfew significantly impinges on his ability to comply with his study obligations. I have been taken carefully through the timetable for lectures and seminars on his course and I am satisfied that, by arriving at the university at about 8.30 am and leaving at 7.00 pm on the four days he has scheduled lectures and on the fifth weekday, when he is free of formal teaching commitments, he has ample time to devote to his studies and work commitments even taking into account his reporting obligations and his prayer obligations. This ignores the availability of the library during the weekend when there are no lecture commitments.
- CF accepted in evidence that he can comply with his prayer obligations at home, or at the university, and does not require to attend a mosque to do so. The difficulty with attending evening prayers does not currently arise as they fall within the time he is permitted to leave home. The Secretary of State has indicated that requests to be permitted to attend the mosque for particular prayer obligations which fall within the curfew period can be considered on a case-by-case basis. There is no evidence to support the contention that the requests thus made are not attended to promptly and with a degree of flexibility. In my judgment the current curfew arrangement is proportionate in its effect on CF's prayer obligations.
- Other than socialising in the immediate context of attendance at lectures or seminars, to which I return below, there is no evidence from CF beyond generalised assertion as to any problem with his university social life by having to leave at 8.00 pm at the latest. If there are particular occasions, events, or meetings, that he wishes to attend he can request the curfew to be relaxed on a case-by-case basis. I do not accept that a student who had to inform his colleagues at 8.00 pm that he had to go to his home, which is an hour's journey away, is so out of line with the norms of student behaviour that it would give rise to a serious problem of isolation within the student body.
- As for his family social life, leaving the family home to return to his residence for 9.00 pm, given the short distance to be travelled, is, no doubt an inconvenience, but not of such severity as, in my judgment to make the curfew lack proportionality. Once again, individual occasions can be catered for by requests made and responded to promptly.
- In my judgment, therefore, the current overnight residence requirements satisfy the tests both of necessity and proportionality and I decline to vary it.
Electronic communication measure
- The necessity for such a measure is not contested. The focus of the debate is a request to be permitted to use an i-Pod. The suggested variation is that the i-Pod should not be able to connect to the internet or have wireless functionality, must be pre-loaded by CF's family, the Home Office should be allowed to check and approve the i-Pod and its contents prior to its being provided and may check the device at any stage.
- CF infers that the Secretary of State's concern is that messages could be passed or received using electronic devices, but claims that his suggested variations would obviate that risk. He currently has no other form of mobile music player and use of an i-Pod, rather than a mobile CD player, is said to be a normal part of the life of a person in their early 20s.
- In his witness statement he stated he wanted it so he could listen to music when he was walking around. In oral evidence he also said he wanted it to be able to listen to recitations from the Koran as doing so enabled him to calm himself and ameliorate the sense of frustration raised by the inconveniences of the TPIM regime.
- The Secretary of State contends that permitting him to have an i-Pod, even on the basis suggested, would potentially make it easier for him to contact Islamist extremists and, as it is a file storing facility there is a risk that messages could be passed to him by Islamist extremists, including by connecting it to other computers.
- In my judgment, acknowledging the deference to be paid to the Security Service, who are the experts in this field, and the open and closed material, this measure is necessary.
- On the question of proportionality, the alleged deficit in CF's life represented by not having an i-Pod is that he is denied access to his choice of music or sacred material in the form of recitations from the Koran which he would find beneficial. The Secretary of State has suggested that this deficit can be met by CF purchasing and using a portable CD player and purchasing commercial CDs containing the material he wishes to access. This would obviate the need for him to have an i-Pod, which gives rise to the risks identified by the Secretary of State.
- In my judgment the deficit described by CF is not to be dismissed as insignificant or trivial. However, the Secretary of State has suggested a realistic and practical alternative whereby CF can access such material if he so wished. In my judgment, the current restriction passes the test of proportionality and I decline to vary it.
Work or studies measure
- The obligation in question is the requirement to give at least two working days notice before undertaking any new work or studies by providing the Home Office with the name and address of the employer or provider of studies, the nature and location of the work or studies, the date CF expects the work or studies to start, the usual hours, and the expected duration of the work or studies.
- The application for variation is on the grounds that CF wishes to seek temporary employment during university holidays. The nature of such work means that he is likely to be required to be able give an immediate response to any job offer. The current requirement for two days' notice would prevent him from obtaining such work. The variation sought is to remove the requirement of two days prior notice but to permit CF to give notice of any new employment, unless it is in an area of activity as specified in the measure, so that it would be open to the Secretary of State to raise concerns prior to work being commenced or, exceptionally, very shortly after.
- The Secretary of State's response is that two days' prior notification is necessary for checks to be carried out including whether CF would have access to the internet through his employment. The suggested variation, implicitly, would permit retrospective notification. That would not meet the needs of national security. The requirement for notice two days prior to starting new employment does not prevent CF accepting a job offer, provided he does not commence work for two working days subsequent to notification. The suggested variation would enable him to take a job that allowed him access to the internet and to leave it prior to giving any notification at all.
- In argument it was pointed out that the Secretary of State's position was that, provided two days' advance notice was given, if there was no security problem with the work which CF had accepted, it was possible that CF might be given permission to start earlier than the expiration of the full two days' notice, but that would be a matter to be determined on a case-by-case basis.
- In my judgment, this requirement is necessary for reasons identified by the Secretary of State in open and closed.
- As for proportionality, obtaining temporary work during holidays is a legitimate aim for CF, given his financial situation. I also accept that such work may require an immediate response by way of acceptance. That is not, however, precluded by this TPIM requirement. In my judgment, it is not disproportionate to require him not to start that work for two days in order to give the Secretary of State the opportunity to check whether the security issues which the Secretary of State legitimately has, do not arise, or can be sufficiently managed, to permit CF to undertake that work. In my judgment, a period of two days would not so impinge upon the ability of CF to obtain part-time temporary work during the holidays as to make it disproportionate and I decline to vary this requirement.
- In practice, the reporting measure requires CF to report daily to a police station. It now requires him to report to a specified London Police Station between 12.00 and 2.00 pm on those days he is at the university. On other days he is required to report to another specified Police Station between 1.00 and 2.00 pm.
- It is said by CF that this requirement is not necessary as he can be suitably monitored through a combination of the GPS tag he wears and a requirement to call the monitoring company during the day from his permitted mobile phone, from an identified place on the university campus on the relevant days, or upon returning home or leaving home. It is said in the representation that on the days he is at university, on occasions it can take up to an hour, thereby jeopardising his participation in lectures and seminars and it has an isolating effect within the student body for him, every day, to be absent from the campus at lunchtime for reasons he cannot disclose.
- The Secretary of State considers it necessary to continue to provide assurance of CF's whereabouts and reduce the risk of him absconding. The reporting measure has a preventative effect. In particular, the requirement to sign on at a particular police station at a particular time, in combination with the overnight residency measure, reduces the time and accessible ports available to him to abscond and can provide early warning of any such attempt. Modifications have already been made to facilitate his attendance at university which fits around his classes.
- CF's oral evidence was to the effect that the journey from the university to the police station is 10 minutes and, on occasion, he has had to wait in a queue in order to report. This can take 20 or, at most, 30 minutes, thus the longest time to comply with this requirement is 50 minutes.
- The Secretary of State points out that CF's timetable is such that, only on one day is there a one-hour gap between teaching obligations over a lunch period. On other days, the gap is at least two hours. Given that the maximum time spent on this activity is 50 minutes, the Secretary of State contends that it has minimal impact on his studies and no significant impact on his ability to socialise with his fellow students, although CF says that it is increasingly awkward to have to fend off questions as to where he is going and what he is doing at lunchtimes.
- In my judgment, having regard to the material in open and closed session, and bearing in mind the deference this court should pay to the views of the Security Service based on their expertise and experience, the daily reporting requirement at a police station is necessary.
- Whilst I accept that there may be some source of embarrassment for CF in having to account for his absence every day at lunchtime to his fellow students. The fact is that the reporting requirements have been so arranged that they do not interfere with his studies on anything other than the most minimal or occasional bases, for example when he may have to prepare for a seminar over lunchtime. That is a matter for him to avoid by appropriate time management. In my judgment, bearing in mind the significance of this requirement as explained in the open and closed sessions, this requirement does satisfy the requirement of proportionality and I decline to vary this requirement.
The association measure
- The particular paragraphs within this measure which are in issue, or are relevant to this issue, are as follows:
"8.1 You must not associate or communicate with any of the following persons (including at your residence or by attending any meeting or gathering) unless the Home Office has given you permission to do so; ….
8.2 You must not meet any other person (including by attending any meeting or gathering) unless:
(a) you meet the person at your residence;
(b) (for a person) you have notified the Home Office of the name and address of the person and the time and location of the meeting at least two working days before the first time you meet them; …
(c) you meet the person by chance, but you do not continue or resume the meeting at another place or time without providing notification under 8.2(d)
(e) the person is: …
(viii) someone you are meeting for the purpose of work or studies which you have notified to the Home Office under the work or studies measure"
- The difficulties raised by CF in relation to these requirements focus particularly on his contact with students or teachers in connection with his university course. It is said that the requirement of two days' notification is not compatible with leading a normal social life. It prevents him from joining colleagues at university at the end of the day. He cannot ask such people for their address as it would arouse suspicion and may require him to reveal he is under a TPIM and would remove the benefit of the anonymity order which the court has imposed. It is said that he has removed himself from the social side of university life and that this requirement has led him to avoid family gatherings other than with his immediate family, thereby resulting in a very isolated life.
- The variation sought is to remove measure 8.2 altogether and to require the Secretary of State to specify categories of meetings of concern of which notification must be given.
- As an alternative, it is suggested that those whom he is permitted under 8.2 to meet should be extended to include (a) extended family members, or (b) university students or teachers or persons reasonably believed to be the same. It is also suggested that the requirement to give two days' notice be removed.
- The Secretary of State's position is that the Security Service assesses that this requirement is necessary to prohibit CF from meeting any person outside his residence, subject to reasonable exceptions, without prior notification. It is said that 8.2 d and e (viii) enable CF to fulfil his academic studies.
- The Secretary of State points out that, since the judgment of Lloyd Jones LJ, CF has been granted variations to attend extended family gatherings upon providing a list of the names of those he reasonably believes will be in attendance, and that the ability to make one off requests for variations is sufficient.
- It is said that the measures limit CF's ability to engage with extremist associates and that further relaxation would mean the risk of him engaging in terrorism related activity, including interacting with Islamist extremist associates, would be increased.
- As to the proposed variations, it is said not to be feasible for CF to be informed of categories of persons or meetings who are of concern. In relation to the proposed relaxation to include persons "reasonably believed" to be university professors or tutors, this would present an unacceptable risk to national security as would extending the exemption to all types of meetings with university professors or tutors, rather than those relating to CF's studies. The Security Service assesses that the relaxation of this requirement would be so broad they would allow CF to meet freely with individuals of his choice and that, in the light of the risk he poses to national security, the present requirements are necessary and proportionate, providing for prior notification before meeting individuals.
- CF argues that, having regard to the comments of Mr Justice Mitting in AM and Lord Justice Lloyd-Jones, the Secretary of State has failed to have regard to the importance of providing for an exit strategy which aims to facilitate CF's assimilation by enabling him to participate in a normal way in the work and life of the university which he is attending and that it is not justifiable to ask CF to decide whether to supply the Security Service with information about those whom he would wish to meet within the university context, outside formal teaching situations.
- In my judgment, having regard both to the open and closed material, the range of provisions set out in this requirement are such as are necessary for the statutory purpose. In so concluding, I am mindful of the requirement to defer, subject to intense scrutiny, to the expertise and experience of the Security Service in these matters. In my judgment, the difficulty which arises in respect of these requirements concerns proportionality.
- CF has undertaken a full-time degree course at a mainstream university. That is something he is permitted to do. The course does not offend any of the TPIM requirements by requiring him to attend lectures, seminars and to work in the university library where, inevitably, for the purpose of his studies he must come into contact with lecturers or tutors of his course and students on the course.
- It takes no effort of imagination to envisage that, routinely, either at the start of or at the end of such formal teaching sessions or whilst working in the library, there is some opportunity for informal social contact with fellow students. I can well understand the acute difficulty CF will have in monitoring his activities so that they fall within the ambit of these requirements. Upon analysis, it seems that he can have meetings with students, but only where they are exclusively for the purpose of studies. This places an artificial constraint on social contact in the margins of formal teaching events or working in the library and I accept that it must have an isolating effect upon CF which will impinge on the education, in the broader sense, that he will receive while at university.
- In my judgment, and paying all due deference to the expertise and experience of the Security Service, the present range of requirements under 8.2, and in particular (e)(viii) do not satisfy the requirements of proportionality. They must impose a chilling effect on CF's participation in the life of a student on this course without any, apparent, beneficial effect on national security. It is unrealistic to suppose that, whilst sitting in a lecture or seminar or in the library whilst working, CF is not in a position to have discussions with students on his course which fall outside the strict ambit of his studies; and it is wholly artificial to expect him to monitor his contacts and conversations in such a way. In my judgment, therefore, some variation in these requirements is necessary to satisfy the test of proportionality.
- In my judgment, that can best be achieved by the addition of a further sub paragraph to paragraph 8.2(e). It is not for me to draft such a requirement, but I indicate below the type of provision as a starting point for discussions between the parties which Lord Justice Lloyd-Jones had in mind might occur, in paragraph 69 of his judgment, but which seem not to have advanced very far.
"For the avoidance of doubt you may meet persons, who do not fall within paragraph 8.1 of this requirement, who are students on your course at a London University, for social purposes, whilst you are on the university campus for the purpose of attending lectures or seminars or working in the university library, provided those meetings are ancillary to your attendance on the campus for those purposes".
- The foregoing is merely a draft which identifies the type of normal social intercourse engaged in with students on the same university course whilst on the university campus for teaching or studying purposes. In my judgment, CF's ability to engage in that type of social engagement would obviate the sense of embarrassment and isolation which, I accept, the present requirements inevitably give rise to, but would not significantly impinge upon the efficacy of the association measures to safeguard the interests of national security. I invite CF and the Secretary of State to discuss how this may best, or better, be formulated. If they are able to agree, I can be invited to direct the Secretary of State to make the necessary variation. In the event of their inability to agree, I would invite them to make submissions in writing so that I can formulate an appropriate variation, having regard to them.
- Accordingly, I am minded to uphold this appeal against the Secretary of State's refusal to vary the TPIM requirements in respect of "association" on the basis and to the extent I have indicated above. The precise form of the variation remains to be determined as indicated above.
- Otherwise the appeal will be dismissed.
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