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Neutral Citation Number: [2013] EWHC 843 (Admin) |
|
|
Case No: PTA/01/2013 |
IN
THE
HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
12/04/2013 |
B e f o r e :
MR JUSTICE WILKIE
____________________
Between:
____________________
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:
Introduction
- 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.
Chronology/Background
-
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 [2008] 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 [2007] 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.
Proportionality
-
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 [2005] 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) [2010] 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 [2009] 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.
The
Evidence
-
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 [2007] 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 [2012] 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 [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 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.
Reporting measures
- 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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