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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> CF v Secretary of State for the Home Department [2013] EWHC 843 (Admin) (12 April 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/843.html Cite as: [2013] EWHC 843 (Admin) |
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THE
HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
![]() ![]() Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
In ![]() ![]() ![]() ![]() ![]() ![]() |
Appellant |
|
- and - |
||
![]() THE SECRETARY OF STATE FOR THE HOME DEPARTMENT ![]() |
Respondent |
____________________
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
____________________
OF
JUDGMENT
Crown Copyright ©
MR JUSTICE WILKIE:
Introduction
Chronology/Background
The
Legal Framework
"(4) Condition D is thatthe 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"
"…
(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
…"
"(1) Ifthe 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) Ifthe
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 determiningthe
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) Ifthe
Court does not exercise any
of
its powers under subsection 7 it must dismiss
the
appeal.
"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
"63. Whether it is necessary to impose any particular obligation on an individual in order to protectthe
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 scopefor 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."
Proportionality
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 [2005] 2 AC 68 at para 178)
"(all) significant material – should be sufficiently disclosed … by significant I mean material which could be regarded as essential in establishing either elementof
what is required
for
a particular control order."
The
judgment
of
Lloyd Jones LJ
"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 2008CF
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"
"48. … however, I consider that there was no satisfactory explanationfor CF
's failure to give oral evidence.
49. Furthermore, I acceptthe
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 respectof
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
"
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 analysingthe
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 respectof 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.
The
Evidence
CF
's general submissions
"Asthe
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. "
"However, without expressing any view onthe
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
Individual Measures
The
overnight residence requirement
1. It isthe
maximum permissible under
the
TPIM Act (see BM
v
SSHD [2012] 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 tothe
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. Changingthe
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 reducingthe
curfew
for the
4 days he studies on campus have not been considered.
6. It is argued that this requirement is irrational in thatthe
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.
Overnight residence requirement: conclusions
Electronic communication measure
Work or studies measure
Reporting measures
The
association measure
"8.1 You must not associate or communicate with anyof 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 meetthe
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 meetthe
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 meetingfor the
purpose
of
work or studies which you have notified to
the Home
Office under
the
work or studies measure"
"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".