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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for the Home Department v LF  EWHC 2685 (Admin) (30 October 2017)
Cite as:  EWHC 2685 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Secretary of State for the Home Department
|- and -
Mr Squires QC and Ms O'Raghallaigh (instructed by Ahmed and Co.) for the Respondent
Mr Cory-Wright QC and Mr Goudie QC (instructed by Special Advocates' Support Office)
Hearing dates: 17 - 21 July 2017
Crown Copyright ©
Mrs Justice Elisabeth Laing
The statutory framework
a. falls within section 1(2),
b. the use or threat is designed
i. to influence
1. the government, or
2. an international governmental organisation, or
ii. to intimidate the public or a section of the public, and
c. the use or threat is made for the purposes of advancing
i. a political,
iii. racial, or
iv. ideological cause.
a. involves serious violence against the person,
b. involves serious damage to property,
c. endangers a person's life, other than that of the person committing the action,
d. creates a serious risk to the health or safety of the public or a section of the public, or
e. is designed seriously to interfere with or seriously to disrupt an electronic system.
i Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the person is, or has been involved in terrorism-related activity ('the relevant activity') ('TRA'). The age of past TRA may be relevant to the necessity and proportionality of any TPIM (Secretary of State for the Home Department v BM  1 WLR 2734 at paragraph 17 per Collins J).
ii Condition B is that some or all of the relevant activity is new terrorism-related activity. 'New terrorism-related activity' is defined in section 3(6)). TRA is 'new' in the case of a person who has not previously been issued with a notice, if it occurred at any time, before or after the commencement of the 2011 Act. If one notice has already been issued to a person, it is TRA occurring after the issue of that notice, and if two or more have been issued, it is TRA occurring after the coming into force of the most recent notice. See also section 30(3).
iii Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism for TPIMs to be imposed on the person. The Court of Appeal in MB v Secretary of State for the Home Department  EWCA Civ 1140 (paragraph 63) said that necessity invokes a proportionality test. The measures it is necessary to impose may depend on what the Secretary of State is satisfied the respondent has been doing, and may depend on the Secretary of State's resources and the demands on those. They may depend on whether surveillance can be put in place. Those observations were made about control orders, but apply to TPIM since the statutory language is the same.
iv Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the person's involvement in terrorism-related activity, for the specified measure to be imposed on the person.
v Condition E is that a TPIM cannot be imposed unless the court gives permission. The threshold for the grant of permission is low: the court must be satisfied that the application is not 'obviously flawed' (section 6(3)).
a. the commission, preparation, or instigation of acts of terrorism,
b. conduct which facilitates the commission, preparation, or instigation of such acts, or which is intended to do so,
c. conduct which gives encouragement to the commission, preparation, or instigation of such acts, or which is intended to do so,
d. conduct which gives support or assistance to individuals who are known or believed by the individual to concerned to be involved in conduct falling within (a).
Section 4(1) is a more elaborate provision than section 3(5) of the 2000 Act (see above), but there is significant common ground between them, in particular because section 3(5) contains a sweep-up category, that is, being 'otherwise concerned in terrorism'.
Ms Brown's report
Dr Deeley's report
The case against LF
The ALM Statements
i the murder of 38 people (30 of them British) on a beach near Souasse, Tunisia, in an attack claimed by ISIL; a tourist area was specifically targeted;
ii on 31 October 2015, flight 9268 from Sharm el-Sheikh to St Petersburg crashed in North Sinai as a result of an improvised explosive device ('IED'), killing 224 passengers and crew; that attacked was claimed by IS-Sinai and reported to have been helped by an insider who put the IED in the plane's luggage compartment;
iii on 13 November 2015, six different parts of Paris suffered terrorist attacks in a complex and co-ordinated operation; 130 people were killed and 351 hurt; ISIL claimed responsibility on 14 November 2015 and celebrated it in the twelfth edition of its English language magazine, Dabiq.
The first National Security Statement dated 6 October 2016
i LF was a member and senior leader of 'the proscribed terrorist group known as [ALM]' which has pledged it allegiance to [ISIL]. MI5 assessed that he had a leading role in communications and logistics for ALM.
ii He encouraged, and (through radicalisation) facilitated the travel of others to join ISIL in ISIL controlled territory. LF was said to be a supporter and advocate of the proscribed organisation ISIL and its self-declared caliphate in Syria and Iraq. ISIL is a terrorist organisation responsible for directing and inspiring 509 terrorist attacks worldwide in 2015, including against UK interests. Through his public profile, LF encourages others to adopt ISIL's ideology. Through radicalisation and rhetoric, he has created an environment which would prompt others to travel to the Caliphate to join ISIL.
iii Conduct amounting to radicalisation: it is assessed that LF gives talks and lectures which are of a radicalising nature, some of which are posted on-line on YouTube. It is further assessed that LF's videos on YouTube have a radicalising effect on British Muslim and vulnerable individuals.
i 4(b) conduct which facilitates the commission, preparation, or instigation of [TRA], or which is intended to do so;
ii 4(c) conduct which gives encouragement to the commission, preparation, or instigation of [TRA] or which is intended to do so.
Here the Secretary of State makes an explicit link between her allegations against LF and the language of the 2011 Act.
The main legal arguments
LF's links, if any, with ALM
i OBM founded ALM and then publicly disbanded it. ALM's aim is the establishment of a Caliphate and of rule by Sharia.
ii Since OBM's departure from the United Kingdom, Anjem Choudary and others have continued to associate with each other, to refer to OBM, and to continue ALM's activities (such as dawah and demonstrations).
iii The organogram suggests a continuing organisation, and features the names of leading members of ALM feature on it (such as Anjem Choudary and Mizanur Rahman).
iv Document 17, found in LF's flat when he was arrested, also suggests a continuing organisation and the same names occur in both documents.
v There was significant traffic between some of these associates in relation to the meaning of Abu Bakr Al-Baghdadi's declaration of a Caliphate in Syria.
vi In June 2014, ALM issued a pledge of allegiance to ISIL signed by OBM (ALM's founder and spiritual leader), Mohammed Fachry, Anjem Choudary and Mizanur Rahman.
vii There is evidence that ALM's leaders have considered their stance on the Covenant of Security.
viii The handwritten note about recruitment (document 8) suggests a sophisticated recruitment strategy.
i As he accepts, LF has associated, at least socially, and for some time, with many of the people the Secretary of State considers to be members (and indeed leaders) of ALM. He recognises the names, or the faces, of many of those listed in the TPIM notice.
ii He accepts that he has done dawah with many of them, again, for some time.
iii LF refers in the talk at Document 2/1 to the formative influence Anjem Choudary, one of ALM's British leaders, had on him.
iv He refers frequently in his talks to Anjem Choudary and to Mizanur Rahman; see, in particular, the talk at Document 2/1.
v He refers repeatedly in his talks to 'Sheikh' OBM, apparently acknowledging both OBM's didactic influence, and his loyalty to OBM.
vi While the organogram does not name LF, it is, expressly, not an exhaustive list of members ('others' are referred to), nor does it purport to list ALM's members, but rather the 'Cultural Committee'.
vii LF's name is on document 17, which was found in LF's flat. An account number into which payments have been made from LF's account is written on the back of document 17. LF's explanation that he has not seen this document is, in those circumstances, implausible. I give it no weight, since he has not been cross-examined on it. I accept, on the balance of probabilities, that this document is a list of ALM members. It is also highly significant that it was found, not on a bus, but in LF's flat.
viii LF's explanation that he may have picked the document up at a dawah stall or tidying up at the Ilm Centre is interesting because it suggests a link either in LF's mind, or in reality, between the dawah LF has been doing/the Ilm Centre, and ALM.
i The situation is not the same as it was in 2014, when the oganogram was found. Anjem Choudary and Mizanur Rahman, ALM's leaders, were, first, remanded in custody, then subjected to strict bail conditions, and then imprisoned. Other senior leaders were also subjected to measures which disrupted their activities.
ii The leaflet handed out at the dawah stall on 28 February 2015 gives two phone numbers, Anjem Choudary's and LF's. I do not consider it likely that this is a coincidence, or that this association is insignificant.
iii I accept on the balance of probabilities that no one person is now leader of ALM.
iv I have considered, and rejected, LF's explanation of the reference in Mizanur Rahman's letter to 'filling the vacuum'. Mizanur Rahman meant 'filling the leadership vacuum caused by his imprisonment and that of Anjem Choudary'.
v I consider it likely, on the balance of probabilities, that the Ilm Centre was used by ALM for its activities, and that LF was actively involved in ensuring, by paying the phone bill with his money, that it had an internet connection, and by ensuring, by paying the rent in cash, that ALM continued to be able to use it.
vi I also consider it likely that, by referring frequently in his talks to Anjem Choudary and Mizanur Rahman, LF was signalling to his audience that he occupies a similar role. This is especially clear in the talk at Document 2/1, to which I have already referred extensively. He also refers frequently to OBM. He says more than once that he is using OBM's notes, or adopting a talk of his (the talk at Document 2/6, the talk at Document 2/7), thus emphasising to his audience his link with OBM, the continuity of LF's message with OBM's, and the similarity in the two men's positions
vii In that role, and with the authority conferred by that role, LF has given several talks which are plainly intended to influence the thinking of the immediate, and on-line, audience in support of ALM's aims: its wish that a Caliphate be established to implement Sharia law, and its linked declaration of allegiance to ISIL, and to its Caliphate.
viii He has also clearly supported travel to ISIL-controlled territory and because he has expressly assumed the mantle of OBM, and of Anjem Choudary and Mizanur Rahman, signalled ALM's support for that, also.
ix He has published those talks on-line and used Twitter to advertise those and other talks which support ALM's aims. He expressly refers to the importance of 'spreading the message' by YouTube and Twitter (he means ALM's message) in the talk at Document 2/1 and to the authorities' attempts to stop this. The 'teaching' in which LF engages so enthusiastically and to which LF refers in the talk at Document 2/1, expressly the teaching of Anjem Choudary and of Mizanur Rahman, is also ALM's.
Condition A: are the 'core allegations' made out, and was the Secretary of State entitled (or right) to conclude that LF had engaged in TRA?