Secretary of State for the Home Department v E

The National Security case……………………………………...59-96

The process for making E’s control order……………………..97-106

Consideration of the possibility of prosecuting E……………107-124

The obligations in E’s control order………………………….125-129

Impact on E and his family & the way requests for

The psychiatric evidence……………………………………...156-180

Has there been a breach of Section 8(2) of the PTA?...............244-266

Are the obligations disproportionate to the interferences

Has there been procedural unfairness?.....................................298-306

Has there been a breach or potential breach of the

E is one of those who was certified under the Anti-Terrorism Crime and Security Act 2001 ("the 2001Act") and detained in HMP Belmarsh in December 2001. His appeal against certification was dismissed by the Special Immigration Appeal Commission (“SIAC”) on 29 October 2003. His case was one of those considered by the House of Lords in A and others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 when it was held that the provisions of the 2001 Act were incompatible with Articles 5 and 14 of the European Convention on Human Rights (“the Convention”). E is one of ten people who had been detained under the 2001 Act in respect of whom control orders were made in March 2005. The orders of eight of the ten were revoked in August 2005 and they are now either detained pending deportation, on bail pending deportation or have left the country.

The Prevention of Terrorism Act 2005 distinguishes between “derogating” and “non-derogating” control orders. The former impose obligations which are incompatible with the right to liberty under Article 5 of the Convention. They may only be made by the Court, and only if the specified conditions are satisfied. One of these is that there is a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 within section 14 of the Human Rights Act 1998 (the “HRA”). As there is no designated derogation from Article 5 at present there is no power to make a derogating order. Non-derogating orders are made by the Secretary of State with the permission of the court (except in cases of urgency) and are subject to the supervision by the court pursuant to section 3 of the PTA.

The control order imposed on E purports to be a non-derogating control order. On 10 June 2005 S, E’s wife, launched judicial review proceedings against the Home Secretary on behalf of herself and her children and also applied to be joined as a party to the PTA proceedings concerning the control order.

This is the third supervisory hearing under section 3 of the PTA but the first full hearing with evidence about the factual issues. The first case, MB, dealt only with the compatibility of the court’s jurisdiction under section 3(10) with the right to a fair hearing under Article 6(1) of the Convention. Sullivan J’s decision that it was incompatible with Article 6(1) ([2006] EWHA 1000 (Admin)) was reversed by the Court of Appeal: [2006] EWCA Civ. 1140. The Court of Appeal held that proceedings under the PTA do not amount to the determination of a criminal charge for the purposes of Article 6 and are compatible with the requirements of Article 6 for civil proceedings. The second case, JJ and others, dealt only with whether the restrictions in the control orders imposed on the respondents in that case amounted to a deprivation of liberty within Article 5. Sullivan J held ([2006] EWHC 1623 (Admin)) that the restrictions in the orders deprived the respondents of their liberty and quashed the orders. His decision was upheld by the Court of Appeal: [2006] EWCA Civ. 1141. Leave to appeal to the House of Lords has been granted in both cases.

By the time of the hearing before me E’s control order had been in force for nineteen months. Accordingly, it was both the hearing required by section 3 of the PTA in relation to the order made on 12 March 2005 and the hearing of E’s appeal pursuant to section 10 of the PTA against the renewal of the order. Since section 3(2)(c) of the PTA requires that the substantive hearing at which the court is to supervise a control order is to be “as soon as reasonably practicable after it is made”, some explanation is necessary. Much of the delay is attributable to the fact that on 1 June 2005 E’s and other control order cases were stood out to await the judgment of the House of Lords in A and others (No 2) v. Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221. That case was concerned with whether, and if so in what circumstances, evidence which had been obtained by torture in a foreign state, could be admitted against a party to proceedings in a United Kingdom court. Pending that decision a number of preliminary matters were dealt with: see [2005] EWHC 1669 (Admin.).

The decision in A and others (No 2) was handed down on 8 December 2005. From February 2006 attempts were made to list the cases of E and that of Mr Abu Rideh, now the only other controlled person previously detained under the 2001 Act. Due to problems with the availability of witnesses and counsel, the hearings were not in fact listed until August 2006. They were then fixed for 20 to 24 November in Mr Abu Rideh’s case case, and 27-29 November in E’s case. In October the Applicant unsuccessfully sought to vacate the date. A joint skeleton argument on behalf of both E and Mr Abu Rideh was served on 15 November in which the same issues of law were raised. In the event because some of the notes made by Mr Abu Rideh’s doctors were not disclosed to the Applicant, on the day the hearing in Mr Abu Rideh’s case was due to commence, it was adjourned to 8 January 2007.

The result of this was that E’s hearing took place eleven months after the decision in A and others (No 2), and eight months after the renewal of his control order. Such delays to the substantive hearing in control order cases should not be allowed to occur. Apart from the requirement in the PTA that the hearing be “as soon as reasonably practicable after” the order is made, there is also the requirement in Article 6 of the Convention of a fair and public hearing “within a reasonable time”. While the complexity of the factual and legal issues are factors in determining what constitutes a reasonable time, so also is what is “at stake” in such cases and the personal circumstances of those adversely affected by the delay. Control orders and the obligations they impose constitute significant coercive action by the state against individuals. Those individuals are entitled to have the legality of that action tested without delay.

E was born in Tunisia on 24 July 1963. On arrival in the United Kingdom in 1994 he claimed asylum. His asylum interview notes refer to his claim as based on membership of ‘Islamic Jihad’ but in his statement in support of his appeal against certification under the 2001 Act E stated this was a translation error and he was referring to the Tunisian Islamic Front (‘FIT’). His claim was refused in January 2001 but he was granted exceptional leave to remain until 2005. He is married to S, who is 32 years old and of Jordanian descent. They have four young children now aged between 7 and 1 year. At the time of the hearing S was 5 months pregnant.

In May 1998 E was arrested in his home in London, detained for three days and then released. The Police apologised and paid E £18,500 in settlement of his claim for wrongful arrest. Since then he has had mental health difficulties to which I shall return. There were reviews of his case by SIAC pursuant to section 26(2) of the 2001 Act in July and December 2004. On 10 March 2005,very shortly before the Bill that became the PTA completed its passage through Parliament, he was granted bail by SIAC on conditions similar to those that would shortly be imposed by the control order.

There are three central issues for decision. Logically, the first issue is whether the power conferred by section 1(3) of the PTA, when read together with section 2(9) renders the scheme of the PTA incompatible with the requirement under the Convention for legal certainty so that the interferences with protected rights do not have a basis in law. This was not considered in either MB or JJ and others and was not the principal ground put forward on behalf of E by Mr Starmer QC. His principal ground was that the obligations imposed by the order are so severe that they amount to deprivation of E’s liberty contrary to Article 5. That is the second issue for decision. If, as in the JJ cases, the order amounts to a deprivation of liberty, the Secretary of State had no power to make it.

The third issue arises if the order does not amount to a deprivation of liberty. It concerns the exercise by the court of its supervisory and appellate functions under sections 3 and 10 of the PTA. These require the court to consider whether any of the decisions of the Secretary of State in relation to the making and renewing of the control order and its contents are flawed. The decisions in question are that the Secretary of State has reasonable grounds for suspecting that E is or has been involved in terrorist related activity, that it is necessary to make a control order imposing obligations on him, and that the particular obligations imposed on him are necessary. The court is required to apply the principles applicable on an application for judicial review on the broad basis laid down by the Court of Appeal in MB. On behalf of E it is denied that he has engaged in any conduct at any time that would permit the making of a control order. It is also argued that the Secretary of State's continuing decisions to make, and to maintain in force, the control order for this length of time are flawed and should be quashed on the grounds that:-

I observe that the joint skeleton argument reserved the positions of E and Mr Abu Rideh on two matters on which the skeleton argument stated that it was accepted that I am bound by the decision of the Court of Appeal in MB. These are whether proceedings under the PTA are a determination of a criminal charge for the purposes of Article 6 (Footnote: ¹) and whether proceedings under the PTA are compatible with the requirements of Article 6 for civil proceedings.

It is argued on behalf of S and the children that their rights under Articles 3 and 8 have been violated. With regard to Article 8, it is submitted that there was an unfair failure to consult about the consequences of the control order on the family, which failure also constitutes unfairness at common law, and that the order is a disproportionate interference with their right to private and family life. With regard to Article 3, it is submitted that the control order is having such a significant impact on the mental health of the children that the threshold required for Article 3 has been met. The joint skeleton argument and Mr Singh QC’s separate skeleton argument on behalf of the families of both E and Mr Abu Rideh also argued that the restrictions on the communications equipment that can be brought into their home violate Article 10. In the event that argument was not pursued in relation to E’s family. The submission that E’s treatment also constituted a breach of Article 3 was raised in the joint skeleton argument but was not pursued by Mr Starmer QC.

The object of the statute: The short title to the PTA states that it is:

"An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity; to make provision about appeals and other proceedings related to such orders; and for connected purposes."

The PTA seeks to achieve this object by empowering the Secretary of

Action falls within this subsection if it -

(a)

involves serious violence against a person,

(b)involves serious damage to property,

(c)endangers a person's life, other than that of the person committing the action,

(d)

creates a serious risk to the health or safety of the public or a section of the public, or

(e)

is designed seriously to interfere with or seriously to disrupt an electronic system.

(3)

The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

In this section -

(a)

'action' includes action outside the United Kingdom,

(b)

a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c)

a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d)

'the government' means the government of the United Kingdom, of a part of the United Kingdom, or of a country other than the United Kingdom.”

Non-derogating control orders: Section 2 of the PTA deals with the making of non-derogating control orders. Subsection (1) provides that:

has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual."

the commission, preparation or instigation of acts of terrorism;

conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so;

conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;

conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity; and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally."

By section 1(3) the obligations that may be imposed by a non-derogating control order are:

"… any obligations that the Secretary of State … considers necessary for purposes connected with preventing or restricting involvement by that individual in the terrorism activity."

Subsection 1(4) sets out a lengthy list of obligations which may be included in a control order. The obligations in the control orders made against the respondent are set out in section 5 of this judgment.

Subsection 2(6) provides that:

“The Secretary of State may renew a non-derogating control order (with or without modifications) for a period of 12 months if he-

(a)

considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and

(b)

considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.”

Subsection 2(9) provides:

“It shall be immaterial, for the purposes of determining what obligations may be imposed by a control order made by the Secretary of State, whether the involvement in terrorism related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State’s grounds for suspicion relates.”

The court's supervisory role in relation to a non-derogating control order is set out in section 3 of the PTA. The relevant provisions are as follows:

“(1)

The Secretary of State must not make a non-derogating control order against an individual except where--

(a)

having decided that there are grounds to make such an order against that individual, he has applied to the court for permission to make the order and has been granted that permission;

…

(2)

Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and –

(a)

the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed;

(b)

the court may give that permission unless it determines that the decision is obviously flawed; and

(c)

if it gives permission, the court must give directions for a hearing in relation to the order as soon as reasonably practicable after it is made."

…

(5)

The court may consider an application for permission under subsection (1)(a) … --

(a)

in the absence of the individual in question;

(b)

without his having been notified of the application or reference; and

(c)

without his having been given an opportunity (if he was aware of the application or reference) of making an representations to the court;

but this section is not to be construed as limiting the matters about which rules of court may be made in relation to the consideration of such an application or reference.

…

(7)

The directions given under subsection 2(c) … must include arrangements for the individual in question to be given an opportunity within 7 days of the court's giving permission or (as the case may be) making its determination on the reference to make representations about –

(a)

the directions already given; and

(b)

the making of further directions.

[Subsections (8) and (9) deal with urgent cases]

(10)

On a hearing in pursuance of directions under subsection (2)(c) … the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –

(a)

his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

(b)

his decisions on the imposition of each of the obligations imposed by the order.

(11)

In determining –

(a)

what constitutes a flawed decision for the purposes of subsection (2) … or

(b)

the matters mentioned in subsection (10),

the court must apply the principles applicable on an application for judicial review.

(12)

If the court determines, on a hearing in pursuance of directions under subsection (2)(c) … that a decision of the Secretary of State was flawed, its only powers are –

(a)

power to quash the order;

(b)

power to quash one or more obligations imposed by the order; and

(c)

power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(13)

In every other case the court must decide that the control order is to continue in force.”

Section 2(4) of the PTA provides that a non-derogating control order has effect for 12 months and may be renewed on one or more occasions.

Section 7 provides that a controlled person can apply to have a non-derogating control order revoked or modified if he considers that there has been a change of circumstances affecting the order. The Secretary of State is also given power to revoke or modify such an order.

Sections 10(1) to (3) make provision for appeals by the controlled person against the renewal, modification, refusal to revoke, and refusal to modify a control order. In relation to such appeals, section 10 provides:

“(4)

The function of the court on an appeal against the renewal of a non-derogating control order, or on an appeal against a decision not to revoke such an order, is to determine whether either or both of the following decisions of the Secretary of State was flawed --

(a)

his decision that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force;

(b)

his decision that the obligations to be imposed by the renewed order, or (as the case may be) the obligations imposed by the order to which the application for revocation relates, are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity.

(5)

The function of the court on an appeal against a modification of an obligation imposed by a non-derogating control order, whether on a renewal or otherwise, or on an appeal against a decision not to modify such an obligation, is to determine whether the following decision of the Secretary of State was flawed --

(a)

in the case of an appeal against a modification, his decision that the modification is necessary for purposes connected with preventing or restricting involvement by the controlled person in terrorism- related activity; and

(b)

in the case of an appeal against a decision on an application for the modification of an obligation, his decision that the obligation continues to be necessary for that purpose.

(6)

In determining the matters mentioned in subsections (4) and (5) the court must apply the principles applicable on an application for judicial review.

(7)

If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are --

(a)

power to quash the renewal of the order;

(b)

power to quash one or more obligations imposed by the order; and

(c)

power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(8)

In every other case, the court must dismiss the appeal.”

Derogating control orders: A derogating control order must be made by the court on the application of the Secretary of State. The role of the court in respect of such an order is set out in section 4. The application is made at a preliminary hearing, which may occur in the absence of, and without notice to, the suspect. Subsection 4(3) provides:

“(3)

At the preliminary hearing, the court may make a control order against the individual in question if it appears to the court-

(a)

that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity;

(b)

that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism;

(c)

that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and

(d)

that the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.”

The preliminary hearing is followed by a full hearing at which the court may confirm, modify or revoke the order. Subsection 4(7) provides:

“(7)

At the full hearing, the court may confirm the control order (with or without modifications) only if-

(a)

it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity;

(b)

it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism;

(c)

it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and

(d)

the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.”

Section 4(8) provides that a derogating control order ceases to have effect after 6 months, unless renewed.

As well as making provision for the revocation or modification of a non-derogating control order, section 7 of the PTA makes provision permitting the Secretary of State or the controlled person to apply to the court for the revocation or modification of a derogating control order.

Section 8 of the PTA makes provision for cases where it appears to the Secretary of State that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism, and that the commission of that offence is being or would fall to be investigated by a Police force. The relevant subsections are:

“(2)

Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the Police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism.

(3)

If a control order is made against the individual the Secretary of State must inform the chief officer of the Police force that the control order has been made and that subsection (4) applies.

(4)

It shall then be the duty of the chief officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.

(5)

In carrying out his functions by virtue of this section the chief officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under subsection (4), to the extent that he considers it appropriate to do so.

(6)

The requirements of subsection (5) may be satisfied by consultation that took place wholly or partly before the passing of this Act.”

Human rights: Section 11 (2) provides that:

“The court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998 (c. 42) in relation to proceedings all or any part of which call a control order decision or derogation matter into question.”

The significance of section 11(2) when combined with the interpretative obligation in section 3 of the HRA for the time at which the matter is to be tested and for the scope and the standard of review required by section 3(10) of the PTA became apparent from the decision of the Court of Appeal in MB [2006] EWCA Civ 1140, 3 WLR 839. As far as the time is concerned, the Court stated (paragraph [44]) that:

“It is implicit from the provisions of section 7 [of the PTA] and would, we think be implicit even without those provisions, that it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary. A purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed.

Since it is the continuing decision of the Secretary of State to keep the order in force which is to be reviewed, the Secretary of State is under a continuing duty in respect of the conditions for the making of the control order and the necessity of the restrictions imposed by it.

The Court of Appeal held (see paragraph [46]) that, notwithstanding the references in section 3(10) of the PTA to the “making of the order” and the “imposition of each of the obligations imposed by the order”, section 3(10) should be read so as to “require the court to consider whether the decisions of the Secretary of State in relation to [a] control order are flawed at the time of the court’s determination”. The decisions are thus to be reviewed having regard to the evidence before the court at the time it conducts the review. The reviewing court must consider whether at the time it conducts the review there was any interference with the controlled person’s human rights. The position in relation to appeals under section 10 of the PTA against the renewal of or the refusal to modify a control order was not considered by the Court of Appeal in MB but there is no discernible difference as to the applicable principles at the stage of an appeal. For this reason, what was said about section 3(10) must also apply to sections 10(4) and 10(5).

The next issue is the scope and the standard of review. It was common ground in MB’s case that the control order interfered with MB’s civil rights and that, if the PTA is to comply with the Convention, he had to be able to challenge the validity of the control order by legal proceedings which satisfy the requirements of Article 6 of the Convention. The Court of Appeal held that the terms of section 3(10) when read in the light of section 11(2) did not “restrict the court to a standard of review that falls short of that required to satisfy Article 6”: ibid, at [48]. Again, the position must be the same in relation to section 10.

In paragraph [57] the Court distinguished the standard of review required for the two elements in the decision of the Secretary of State to make a non-derogating control order. The first is that he must have reasonable grounds for suspecting that the controlled person is or has been involved in terrorist-related activity, which involves an assessment of fact. The second is that he must consider that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make the order. This requires a value judgment as to what is necessary by way of protection of the public.

With regard to the first element, the Court stated that:

“60.

Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism-related activity”.

The Court considered (paragraph [63]) that somewhat different considerations apply in respect of the second element, which involves the customary test of proportionality in assessing the necessity of imposing any particular obligation upon an individual. It referred to a number of factors to be taken into account: the nature of the suspected involvement in terrorism-related activities, the resources available to the Secretary of State, the demands on those resources, and the arrangements that are in place, or that can be put in place, for surveillance. It stated that:

“64.

The Secretary of State is better placed than 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, see for instance: Secretary of State for the Home Department v Rehman [2001]UKHL 47; [2003] AC 153; The Republic of Ireland v the United Kingdom (1978) 2 EHRR 25.”

However, it also stated (paragraph [65]) that:

“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” and “in the case of obligations that are particularly onerous or intrusive the court should explore alternative means of achieving the same result” (emphasis added).

Special Procedure: In exercising its supervisory function the court is required to follow a special procedure, involving closed material not revealed to the controlled person and the use of a special advocate. The procedure is similar to that applicable to proceedings before the Special Immigration Appeals Commission ('SIAC'). It was this special procedure which caused the Court of Appeal in MB most concern: see [2006] EWCA Civ. 1140 at [70]. After considering the Strasbourg and domestic authorities, the Court concluded (paragraph [86]) that in the context of powers conferred upon the executive to interfere with individual rights in order to protect the public against the risk of terrorism reliance on closed material is permissible provided that appropriate safeguards against the prejudice that this may cause to the controlled person are in place. It considered that the provisions of the PTA for the use of a special advocate and the rules of court in respect of control order proceedings made pursuant to paragraph 4 of the Schedule to the PTA constitute appropriate safeguards.

Paragraph 4(3) of the Schedule states that the rules must secure—

“(a)

that in control order proceedings and relevant appeal proceedings the Secretary of State is required (subject to rules made under the following paragraphs) to disclose all relevant material;

(b)

that the Secretary of State has the opportunity to make an application to the relevant court for permission not to disclose relevant material otherwise than to that court and persons appointed under paragraph 7;

(c)

that such an application is always considered in the absence of every relevant party to the proceedings and of his legal representative (if he has one);

(d)

that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest;

(e)

that, where permission is given by the relevant court not to disclose material, it must consider requiring the Secretary of State to provide the relevant party and his legal representative (if he has one) with a summary of the material;

(f)

that the relevant court is required to ensure that such a summary does not contain information or other material the disclosure of which would be contrary to the public interest.

(g)

that provision satisfying the requirements of sub-paragraph (4) applies where the Secretary of State does not have the relevant court's permission to withhold relevant material from a relevant party to the proceedings or his legal representative (if he has one), or is required to provide a summary of such material to that party or his legal representative.

(4)

The provision that satisfies the requirements of this sub-paragraph is provision which, in a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary, authorises the relevant court –

(a)

if it considers that the relevant material or anything that is required to be summarised might be of assistance to a relevant party in relation to a matter under consideration by that court; and

(b)

in any other case, to ensure that the Secretary of State does not rely in the proceedings on the material or (as the case may be) on what is required to be summarised.

(5)

In this paragraph 'relevant material', in relation to any proceedings, means –

(a)

any information or other material that is available to the Secretary of State and relevant to the matters under consideration in those proceedings; or

(b)

the reasons for decisions to which the proceedings relate.”

The special rules governing proceedings under the PTA are contained in Part 76 of the CPR. Rule 76.2 requires the court to give effect to the overriding objective in such a way as to "ensure that information is not disclosed contrary to the public interest." For the purposes of Part 76, the public interest is defined by rule 76.1(4):

“… disclosure is made contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.”

Rule 76.22 enables the court to conduct hearings in private and to exclude the controlled person and his representatives from all or part of the hearing. Rule 76.24 describes the functions of the special advocate. Rule 76.26 modifies the general rules of evidence and enables the court to "receive evidence that would not but for this rule be admissible in a court of law": see rule 76.26(4).

Rules 76.28 and 76.29 set out the procedure for dealing with closed material. In summary, the Secretary of State must apply to the court for permission to withhold the closed material from the person controlled or his legal representatives and file a statement explaining his reasons for withholding that material. The enclosed material is then considered by the special advocate. If the special advocate challenges the need to withhold all or any of the closed material, the court must arrange the hearing to determine the issue, unless the Secretary of State and special advocate agree that the court may decide the issue without a hearing.

Rule 76.29(6) states that:

“Where the court gives permission to the Secretary of State to withhold closed material, the court must –

(a)

consider whether to direct the Secretary of State to serve a summary of that material on the relevant party or his legal representative; but

(b)

ensure that no such summary contains information or other material the disclosure of which would be contrary to the public interest.”

One feature of the process under Rule 76.29 is that any potentially exculpatory material held by the Secretary of State or the Security Service is put before the court and, where possible, the controlled person and his legal representative.

Although rules 76.2, 76.3, and 76.26 modify other provisions in the CPR, Part 76 anticipates that some provisions of the CPR will apply to proceedings under the PTA. For example, CPR Part 19 is not modified. Rule 19.2 (2) provides that a new party may be added if inter alia it is desirable to add him so that the court can resolve all the matters in the dispute in the proceedings. Again, CPR Part 35 concerning expert evidence, is not excluded and thus applies. In the present case in August 2006, when the date for the hearing was fixed, there were no directions for a discussion between the medical experts to identify the areas of agreement and disagreement. By October when the case first came before me, neither medical report had been prepared and it appeared that there would be no time for such a discussion or for the operation of rule 35.6 enabling a party to put questions to an expert instructed by another party. Dr Phelan, the Applicant’s psychiatric expert, only saw E on 13 November, very shortly before the hearing. In future proceedings under the PTA at which there is to be expert evidence which is not the subject of an application under Part 76 for permission not to disclose material, the procedures under Part 35 should be followed.

The proceedings launched by S: I have referred to the fact that on 10 June 2005 judicial review proceedings were launched by S and she also applied to be joined to the control order proceedings. No provision in the PTA expressly addresses the jurisdiction of the court to hear proceedings brought by third parties such as S. However, section 11 (2) provides that “in relation to proceedings all or any part of which call a control order decision…into question”, the court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998. By section 11 (6) “control order proceedings” mean inter alia:

“(h)

proceedings in the court by virtue of sub section (2), and

(i)

any other proceedings in the court for questioning a control order decision…”.

I have referred (paragraph 45) to the fact that CPR Part 76 does not exclude or modify the application of CPR Part 19 containing the power to add a new party if it is desirable to do so, in order that the court can resolve all matters in the dispute. S claims that the Secretary of State’s control order decisions have interfered with her Convention rights and there is also an issue between her and the Secretary of State which is connected to the matters to be considered in the main control order proceedings. Mr Singh also claimed that the Secretary of State has not complied with the requirements of fairness under common law. I have concluded that where, as in the present case, the claims based on common law are related to and bound up with claims based on the Convention, those claims also fall within the provision in CPR part 19.2. Accordingly, at the outset of the proceeding I gave permission for S to be joined to the main control order proceedings. In these circumstances, it is not appropriate to grant permission to apply for judicial review.

Reporting and Review: Provision for non-judicial examination of control orders is made by section 14 of the PTA The Secretary of State must lay a report about his exercise of the control order powers before Parliament as soon as is reasonably practicable after the end of each quarter. He must also appoint a person to review the operation of the PTA and to report as soon as is reasonably practicable after 9 months from the date of the enactment of the PTA and thereafter annually. The reports must contain the opinion of the independent reviewer on the implication of any proposal by the Secretary of State for the amendment of the law relating to terrorism and the extent, if any, to which the Secretary of State has used his power to make non-derogating orders in urgent cases without the permission of the court. They must be laid before Parliament. Lord Carlile of Berriew QC has been appointed as the independent reviewer.

The obligations imposed on E were modified on 25 May 2005 and 22 August 2006. The obligations to which he is currently subject are:-

The order was served with a covering document signed by Robert Whalley, at that time the Director of the section in the Home Office dealing with control orders. The document provided the address and telephone contact number of the Control Order Officer and states the number is to be used where the controlled person is “required” to seek agreement from, to notify, or otherwise to contact the Home Office for the purpose of the obligations. It also provided the contact number of Premier Monitoring Services, the company managing the tag and the telephone monitor.

Pursuant to CPR Part 76.30 on 10 March 2005 the Applicant, the Secretary of State, filed and served an Open Control Order Statement setting out the grounds for his decision to make a control order against E and the evidence relied on in support of those grounds. In October 2005 a Second Open Control Order Statement updating the First Open Statement was served. In March 2006 an Open Statement in support of the renewal of the control order was served.

On 20 September 2006, pursuant to the Rule 76.29 process, an amended and updated version of the First Open Control Order Statement was served. The amendments substantially amplified the case in support of the control order. In particular they included judgments of the County Court of Brussels dated 30 September 2003 and of the Court of Appeal of Brussels, dated 21 February 2005, in cases in which associates of E were successfully prosecuted, and in which there are references to their association with E and to his activities. There were exchanges about disclosure of closed material between the special advocates for E and those acting on behalf of the Secretary of State between July and September 2005, including consideration of whether any material deployed in the Belgian proceedings was public. Following a hearing before Ouseley J on 29 September 2005 the Belgian judgments were requested by a Commission Rogatoire. They were received from Belgium on 25 November 2005. Initially, a translated version was only available of the judgment of the Court of Appeal. A translated version of the first instance judgment was subsequently served on E’s Special Advocates on 16 January 2006. A note agreed by the Special Advocates and the Applicant states that there were then “further discussions between them as to the impact of the judgments on what could be made open (but not as to the disclosability of those judgments)”, and the judgments were put into the open material on 20 September 2006.

In November 2006 a Third Open Control Order Statement updated the previous statements and, as a result of the process under Rule 76.29, put before the court and E any potentially exculpatory material held by the Security Service. Corrections to the amended First Open Control Order Statement were filed and served on 21 November 2006. Where sections from these Statements are set out in this judgment, updating additions and passages added after the Rule 76.29 process are underlined. The control order Statements setting out the national security case are supported by a Statement dated 17 November 2006 by witness J, a member of the Security Service, who gave evidence at the hearing.

The other evidence on behalf of the Applicant was given by civil servants in the Home Office, and by Dr Michael Phelan, a consultant psychiatrist, whose report on E is dated 16 November 2006. Dr Phelan gave evidence at the hearing. Robert Whalley, the then Director of the Division in the Home Office containing the section dealing with control orders, made a statement dated 8 April 2005. Mr Whalley’s statement deals with the ten control orders made on 11 March 2005 in a generic way and without considering the position of the individuals subject to the orders. Christopher Jones, a grade 6 civil servant at the Home Office made a statement dated 22 November 2006 and gave evidence at the hearing. Since April 2006 he has been leader of the team of civil servants concerned with the implementation of the control order system, and he chairs the quarterly meetings of the Control Order Review Group (“CORG”). A document dated November 2005 is headed “The Secretary of State’s Evidence in Reply to the Appellant’s Evidence”. This document states that in the light of the statement of Mrs Gareth Peirce dated 10 June 2006, about the effect of the control order on E and his family, the Secretary of State reconsidered whether the obligations in the control order were necessary and proportionate and remained of the view that they were. The document is, however, not made by an identified individual, is unsigned, and, although adopted by Mr Jones, is not in itself evidence.

In the case of Mr Abu Rideh the Home Office witness was Catherine Byrne, a Deputy Director and the senior civil servant in the group dealing with control orders, and one of Mr Jones’ superiors. She was able to give evidence on a number of matters not addressed in Mr Jones’s evidence and to put additional documents before the court. It was agreed by the representatives of all parties in both cases that evidence concerning the process of making control orders in general given by Mr Jones and Miss Byrne could and should be considered in both cases.

The evidence on behalf of E and S consists of a statement by E dated 18 October 2006; two statements by S dated 18 May 2005 and 18 October 2006, dealing both with the effect of E’s control order on her and their children and its effect on him; four statements by their solicitor Mrs Gareth Peirce dated 10 June 2005, 18 October, 21 November, and 28 November 2006; a statement by another solicitor Ms Madeleine Corr dated 29 November 2006, and medical evidence. The medical evidence consists of three reports, dated respectively 12 March 2001, 4 November 2003 and 24 May 2005 from Dr Stuart Turner a consultant psychiatrist and, until 2003 Director of the Traumatic Stress Clinic, two reports, dated 26 April 2004 and 23 October 2006, from Professor Kopelman, Professor of Neuropsychiatry in the University of London and a consultant neuropsychiatrist at St. Thomas Hospital; and letters from Professor Kopelman dated 30 January, 6 March, 26 June, and 4 September 2006. There is also a report dated 19 October 2006 from Renée Cohen, a psychoanalytic psycho-therapist and independent social worker who considered the impact of the control order on the family and in particular on S and the children. Professor Kopelman gave oral evidence about E. There are also reports, dated 24 May 2004 and 23 October 2006, from Professor Kopelman about S. The Applicant did not seek to cross-examine Professor Kopelman or Ms Cohen in relation to their statements about S and the children. While Professor Kopelman’s oral evidence touched on the position of S and the children, this was primarily in relation to its effect on E.

On behalf of E, Mr Starmer also relied on a number of other reports. The first is “The psychiatric problems of detainees under the 2001 Anti-Terrorism Crime and Security Act”, published in December 2001 by eight psychiatrists and psychologists who had provided care and assessments for detainees (“the psychiatrists' report”) and the statement issued at the same time by the Royal College of Psychiatrists about detainees’ psychiatric problems. He also relied on reports on the condition and treatment of those detained under the 2001 Act and the effect of their detention on their mental health by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. These are dated 12 February 2003, 23 July 2004, 9 June 2005, and 10 August 2006. The third source was Lord Carlile of Berriew QC’s first report as the independent reviewer of the PTA made on 2 February 2006.

During the course of the hearing, with the consent of the Secretary of State, a number of statements concerning material in the closed evidence were communicated to E’s legal representatives by his special advocates. These concerned matters such as whether, and if so what, information had been sought about prosecutions in other European countries, and what information had been considered by the Home Office’s Control Order Review Group (“CORG”), which since May 2006 has conducted quarterly reviews of those who are subject to control orders. I shall refer to such communications when considering the evidence.

Before turning to the evidence put before the court in support of the decisions to make and to maintain the control order, I make two observations. The first concerns whether the exclusionary rule laid down in A & others (No. 2) about evidence which may have been obtained by torture raises issues in this case. The Applicant and E’s Special Advocates have agreed that no such issues are raised by the matters requiring determination in relation to the closed evidence relied on in this case. Secondly, it will be seen from my reasons that I have not relied on decisions of SIAC for evidence of E’s involvement in terrorism-related activity prior to his detention under the 2001 Act. Neither has the Applicant.

Paragraph 2 of the amended and updated version of the First Open Control Order Statement in support of the control order (updating additions and passages added after the Rule 76.29 process are underlined) states that the Security Service considers that E:-

“…was aware of and carried out acts in support of international terrorists and that these acts can be summarised as follows:

i.

that he provided support to the leadership of the Tunisian Fighting Group involved in terrorist-related activity

ii.

that he had links to terrorist planning

iii.

that he provided accommodation for extreme Islamists

iv.

that he facilitated the travel of individuals involved in terrorism.”

The Tunisian Fighting Group (“TFG”) was formed in 2000 by Saifallah Ben-Hassine, then based in London. It was an offshoot of the Tunisian Islamic Front (“FIT”). At the time of E’s detention, a London travel card in the name of S Ben-Hassine was found in E’s car. The Security Service believes this to be Saifallah Ben-Hassine. Earlier in this judgment I refer to E’s statement in his appeal against certification under the 2001 Act that the reference in his asylum claim to membership of “Islamic Jihad” was a translation error. He maintained that he was referring to FIT but had exaggerated his involvement with FIT.

In cross-examination J, the national security witness, stated that neither FIT nor the TFG was proscribed in the UK and believed they were not proscribed in the USA. However, J also said that the Tunisian authorities considered FIT and the TFG to be terrorist organisations. In the proceedings before me it was not denied that the Tunisian Fighting Group (“TFG”) had links to Al-Qaida and an Algerian terrorist group, the Salafist Group for Call and Combat (“GSPC”). Paragraph 5 of the amended and updated version of the First Open Control Order Statement states that “the TFG also aimed to recruit new members and send them to Afghanistan for training”.

There was no evidence and it was not suggested that E was ever physically violent himself. Witness J stated that the assessment of the Security Service was that he actively subscribed to violent extremist ideologies and that his activity was principally facilitation and logistical support of Islamic extremist networks: see also paragraph 6 of the Third Open Control Order Statement.

In Witness J’s assessment, E has been involved in terrorism-related activities and the control order was necessary and remains necessary. Witness J made a distinction between that part of the assessment based on E’s historic involvement in activity and that part of the assessment based on the consideration that he would re-involve himself in such activities if the restrictions of the control order were not in place. With regard to the former, the assessment was that E was a significant member of the TFG involved in providing funds, false documents and facilities for extreme Islamists. J stated that, most significantly, he was responsible for a key network involved in preparing and moving people from London to training camps in Afghanistan.

Paragraphs 11 and 13 of the amended and updated version of the First Open Control Order Statement (footnote references to supporting documents are omitted) state:-

“11.

E is assessed to be a contact of Nizar TRABELSI. In September 2001, a number of related arrests took place in France, Holland, Belgium and the UK. TRABELSI was arrested in Belgium under Anti-Terrorism legislation, and has since been sentenced to ten years' imprisonment. A search of his home address uncovered an Uzi machine gun .”

Assassination of MASOOD

13.

This assassination was carried out by two Tunisian extremists, one of whom Abdesattar DAHMANE was a contact of E.”

Paragraph 11 of the Third Open Control Order Statement states:-

“The Belgian proceedings highlighted that DAHMANE held a false passport in the name of TOUZANI, which had a false Pakistani ‘High Commission’ visa; DAHMANE held the ‘TOUZANI’ passport at the time of the suicide attack against Commander MASOOD. Furthermore the Belgian proceedings indicated that, at the time of the MASOOD attack, EL OUAER was holding a false passport in the name of BAKKALI which was provided by a facilitation network working in tandem with E’s network. A review of intelligence, undertaken in light of the Belgian proceedings, has revealed reporting which confirmed that the BAKKALI passport also contained a visa issued by the Pakistani High Commission in London. The Security Service assesses that E’s British facilitation network supplied the assassins’ visas and was involved in the facilitation of DAHAMANE and EL OUAER’S Islamist extremist activities.”

This part of the statement is supported by a Security Service report dated 20 September 2001 which states that members of the TFG were the most likely perpetrators of the assassination of Ahmad Shah Masood, the leader of the Afghan Northern Alliance. The report states that according to reports from the Afghan Embassy in London, Masood’s attackers travelled on Belgian passports and obtained their visas to travel to Pakistan at the Pakistan High Commission in London.

Paragraphs 14 to 17 of the amended and updated version of the First Open Control Order Statement state:-

“Providing Accommodation for Extreme Islamists

14.

E was involved in arranging accommodation for extreme Islamists involved in terrorism-related activity who were visiting the UK from abroad, and that he offered hospitality to extremists himself

15.

E was responsible for arranging hospitality for Tunisian extremist Abu NADHIR @ Sliti AMOR when he arrived in the UK from Afghanistan. Abu NADHIR is a Tunisian extremist and former Bosnian Muiahedin. On 27 February 2002 Abu NADHIR was arrested in the Netherlands after being extradited from Iran, where he had fled from Afghanistan. He is being held in connection with providing false documents to the perpetrators of the assassination of MASOOD. In March 2002, in connection with the TRABELSI [paragraph 11 above] case, Belgian Police arrested an individual named Diamel MOULILA and searched his house. MOULILA confirmed that Sliti AMOR had stayed with E in London in 2000. MOULILA was later released without charge.

Facilitation of Travel for Terrorist Purposes

16.

In interview following his arrest in 2001, Belgium-based Islamist Tareq MAAROUFII mentioned that E was involved in preparing and moving people from London to Afghanistan for training.

17.

E was an associate of Italy-based extreme Islamist and TFG member SABER, @ Essid Sami BEN KHEMAIS. SABER was the leader of a Tunisian extreme Islamist cell in Italy linked to BIN LADEN. During interviews with Police in Belgium. MAAROUFI also confirmed that E was in regular contact with SABER.”

The most substantial support for E’s involvement in terrorism-related activity in the open evidence is to be found in the judgments of the Belgian courts. The judgments inter alia state (pages 54-57, 60, 67-68, 82, 87):-

“(a)

One of Masood’s assassins, Abdesattar Dahmane, was seen at E’s address in London. Two of the defendants in the Belgian proceedings stated that E had “harboured” Dahmane at his home.”

(b)

There is evidence that E’s group recruited Dahmane .

(c)

E provided false visas of the same type as that in Dahmane’s “Touzani” passport to Sliti Amor (also known as Abu Nadhir), and found on Mohammed Fethi, another of the defendants. The Belgian Court of Appeal also considered the visas used by Masood’s assassins originated from the same sources as those obtained by Sliti Amor and found on Fethi.

(d)

A false visa with the Pakistan High Commission seal was used by Nizar Trabelsi, who when arrested in Belgium was found with a sub-machine gun and ammunition and admitted to having purchased large quantities of explosive ingredients.

(e)

Tareq Maaroufi, the head of the Belgian network, told the Belgian authorities that the British network channelling combatants from Europe to Afghanistan was under the direction of E and that he had “multiple meetings” with Ben Hassine, E, and Ben Khemais (also known as Saber) to win them over to his programme of armed struggle in Tunisia.

(f)

E provided hospitality to Sliti Amor described by the judge as “the archetypical militant fundamentalist”. The Belgian Court of Appeal stated that Sliti Amor had “definite and regular contact with the London network [and was] a familiar of [Ben Hassine and] his successor [E]”.

It is also to be noted that the Belgian Court stated that Abu Qatada “appears as a watermark running through the whole of this case as being the mastermind, if not the commandant, of the movements propounding jihad in the West”. E was one of Abu Qatada’s followers but, in his statement for the SIAC proceedings under the 2001 Act said that he had become one because he heard that Abu Qatada was a good Iman, that his message was always that problems needed to be resolved by dialogue, and that on no occasion did Abu Qatada align himself with any group.

Paragraphs 20-22 of the amended and updated version of the First Open Control Order Statement state:-

“20.

The Security Service considers that, unless steps are taken to prevent or restrict E’s movements, contacts and activities, he will re-engage in terrorism-related activity. The Tunisian Fighting Group (TFG) within which E operated is no longer considered to pose a threat to the UK, investigations by the Security Service continue to demonstrate that Islamist extremism in the UK is characterised by loose knit overlapping networks, and that associations between individuals are often as important as affiliations to particular groups. Therefore, although the TFG has been disrupted, Islamists associated with this group are able to continue to pursue their extremist agendas. In the case of E it is significant that among his historical associates are a number of individuals affiliated to various extremist organisations.

21.

It is considered that if E is not subject to restrictions he will be able to pursue his extremist agenda through alternative associates and networks. The Security Service does not consider that the current condition of the TFG fundamentally undermines E’s ability to engage in terrorist-related activities. The historical connection between E and a number of targets of the Security Service confirms the possibility that E would have no difficulty in re-establishing his connections to Islamist extremist networks.

22.

It is considered that controls on E’s activity are necessary in order to manage the threat posed by him. It is considered that there is no other adequate measure which could be taken in order to protect members of the public from the risk of terrorism. It is understood that the Secretary of State is unable to deport E because he could not be satisfied that removal of E would not be unlawful under s6 Human Rights Act 1998 as being incompatible with E’s Convention rights. On advice, it is not possible to prosecute E for criminal offences because the case against him is based on material which might not be admissible in criminal proceedings. Even if the material were admissible, its disclosure would be very likely to cause harm to the public interest.”

Paragraphs 8-9 of the amended Third Open Control Order Statement state:-

“8.

The Security Service assesses that the disruption of E and many of his associates, be it those detained under ATCSA legislation [ i.e the 2001 Act] or international terrorist associates such as Ben Hassine and Tareq Maaroufi, has limited his involvement in Islamist extremist activity to some extent. As outlined in previous Control Order statements, the Security Service assesses that E is a significant Islamist extremist who has actively facilitated terrorism-related activity in the UK and overseas.

9.

The Security Service judges that E’s activities since the imposition of his Control Order in 2005 indicate that he has no intention of distancing himself from his Islamist extremist associates. Given E’s historical links to high-level Islamist extremist activity and his continued association with known UK based Islamist extremist contacts, the Secretary of State maintains that “E continues to pose a significant threat to national security and that his Control Order is therefore both necessary and proportionate”

It was put to J that in the light of present circumstances for a number of reasons there is no continuing risk from E. First, he has spent five years in either detention or subject to the control order. Secondly, the TFG no longer exists. Thirdly, of E’s associates, five have been prosecuted and imprisoned in Belgium, (Footnote: ²) France, (Footnote: ³) and Italy (Footnote: ⁴) and one, Abdesattar Dahmane, was dead. Farid Boukemiche was charged but acquitted when no evidence was led against him and had since left the United Kingdom. Moreover, Mohammed Fethi, Aiter, Abdelcrim El-Haddouti, Hassan El-Haddouti, and Said El-Haddouti, who were linked to E’s associates have been arrested and prosecuted in Belgium. (Footnote: ⁵) Another such individual, Djamel Moulila, was acquitted in Belgium.

J accepted that the TFG was currently inactive as a group but not that the group no longer existed. Members maintained their allegiance to the group and the fact that individuals were scattered or in detention did not mean that the group did not exist. J believed that FIT was still active. It was currently considered more moderate than it had formerly been and was primarily political but there were some members who would go further. J gave further evidence on this in the closed hearing.

The first reason J gave for considering that E would re-engage in terrorism-related activities was the level of commitment he showed to them before his detention in 2001, the range of his activities and associates, and the absence of evidence that he had reformed or was inclined to do so. His associations prior to his detention were not limited to the TFG and that organisation was not central to the present case against him. He was connected with several attack plans, although he entrusted the Strasbourg Christmas Market attack plan in December 2000 to Essif Ben Khemais (or Sabre) and the Abu Doha networks. In the closed session witness J gave further evidence in support of the assessment by the Security Service that E’s links were not solely with the TFG. J stated that because the Security Service considered that Al-Qaida was a network with many but rather nebulous links, it no longer looked at individuals on the basis of membership of groups but considered them on their own merits. J also relied on Reuters documentation which showed interlocking European cells and references to Ben Khemais with which, it was assessed, E was involved. J stated that the networks with which E was involved were very resilient and could easily be replenished. J stated that this assessment was not only based on E’s links with Ben Khemais but this was not a matter that could be dealt with in an open hearing. Mr Jones said he was aware that the present concern was with individuals but could not say when the change from the focus on groups occurred.

J’s second reason for considering that the control order remained necessary in E’s case was that although six of the seven individuals identified as associated with him had been arrested prosecuted and imprisoned and one was dead, two of his closest links, Sliti Amor and Essif Ben Khemais, although presently detained, are due to be released in 2007. Witness J considered that he would re-engage with them. Before his detention E had excelled in building up a wide range of contacts with extremists. He continued to do this on his release from detention although curtailed by the obligations under the control order. There was no evidence that he would reform, and the Security Service considered that he would extend his activities if released from those obligations.

As to E’s continuing to associate with extremists after his release from detention, the amended Third Control Order Statement (paragraph 7) refers to his meeting Taleb Benaissa, who had been a close associate and was detained with E under the 2001 Act. It was put to J that this meeting was unarranged, and was in the vicinity of the Afghan Centre, the mosque Benaissa is required to use by his bail conditions, and that on an unarranged basis E had then given Benaissa a lift. J said that the Security Service would not consider a meeting in a mosque as untoward or of concern but could only discuss surveillance in the closed hearing. Paragraph 15 of the amended Third Control Order Statement states:-

“There has been additional intelligence indicating that E continues to associate with significant Islamist extremist individuals. The Security Service therefore assesses that E has not sought to distance himself from his Islamist extremist associates and retains access to Islamist extremist networks.”

The first question is whether the Secretary of State has reasonable grounds for suspecting that E is or has been involved in terrorism-related activity. E denies any conduct at any time such as would permit the making of a control order under section 2 (1a) of the PTA.

At the time the control order was made, and for a considerable time thereafter, much of the evidence relied on as giving grounds for suspecting that E was involved in terrorism-related activity, and on the continuing need for a control order was closed evidence. Miss Giovannetti accepted that initially E had little knowledge of the grounds in support of the making of the control order. She submitted that the position has changed significantly and E now knows a great deal of the detail of the case against him as a result of material put into the open evidence, in particular the judgments of the Belgian courts to which I have referred.

It is common ground that, in the light of the standard of proof, the closed evidence and the continuing risk of prosecution, no adverse inference should be drawn from E’s failure to give evidence on national security issues: see SIAC’s generic judgment in Ajouaou, A and others v Home Secretary 29 October 2003 paragraph 117. The lack of such evidence may, however, mean that it is more difficult for E to counter the Applicant’s allegations. That this is so was recognised by SIAC in its judgments in Allouche’s appeal (para 7) and in S v Home Secretary 27 July 2004. In the latter case the statements setting out the case against S were substantially amended following the rule 38 process (which is equivalent to the rule 29 process under the PTA) and extensive further particulars were thereby provided to S. The first statement was served on 13 February 2004 and the fuller disclosure was made on 30 June 2004. Sullivan J, delivering SIAC’s judgment, stated (paragraphs 26-28) that a person who has been confronted with generalised assertions which he has answered to the best of his ability, and who then discovers that his appeal has been dismissed on the basis of material presented in closed session may be entitled to feel aggrieved. Where, however, the person has before him a great deal of open material to which he could have responded, had he chosen to do so, but did not do so, the position is different. In such a case SIAC stated:

“31.

While we do not draw any adverse inference from S’s failure to give evidence or otherwise participate in the hearing of his appeal, we do not feel able to place any weight upon the general denials of guilt, and the bald assertions of innocence, contained in the representations submitted on his behalf. We have to determine his appeal on the evidence and we are left with the position that there has been no challenge by way of evidence, cross-examination or submission, to the open material produced by the respondent.”

In E’s case this is in effect the position in respect of the material in the Belgian judgments about his activities prior to his detention under the 2001 Act. The Belgian judgments were obtained and made available as a result of the efforts of E’s Special Advocates. The circumstances are summarised in paragraph 52 above. Translated versions of both judgments were available to the Special Advocates by 16 January 2006 and they were put into the open material on 20 September 2006. It is argued on E’s behalf that the delay in disclosing the material contained in the Belgian judgments has adversely affected his prospects of properly answering the case. No particulars of why this is so are given. It is, moreover, not denied by E that he is the person referred to in the Belgian judgments. In these circumstances and in the absence of any explanation of why the delay has adversely affected E’s prospects of properly answering the case against him, I consider that the position is not materially distinguishable from that in S’s case.

The references to E, his activities, and his associates in the Belgian judgments are thus unchallenged evidence within the open material. I accept that they provide substantial grounds for believing that E was a senior terrorist recruiter and facilitator, with a wide range of contacts, and was involved in terrorism-related activity as defined in section 1 (9) of the PTA. The court must be satisfied that the Applicant had “reasonable grounds for suspecting” E was involved in terrorism-related activity and, as has often been observed, this test is a low one: see O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286,298 (Lord Hope); R ( S) (Sexual Abuse Allegations) v Swindon BC and Wiltshire CC [2001] EWCA 334; S v Home Secretary, SIAC, 27 July 2004, paragraph 41. I am satisfied that this low threshold is crossed by a substantial margin on the basis of the open material alone. There is in addition closed material to the same effect but it has not been necessary for me to rely on this in reaching my conclusion on this part of the case.

I turn to the second question, whether the Applicant has established that the control order was necessary and remains necessary. This involves consideration of the following matters. The first is the potential harm to the public (see PTA s. 2(2)(b)) that could result if E does in fact re-engage in terrorism related activity. The second is E’s willingness and capacity to do so. The third is the extent to which the potential harm can be adequately addressed without a control order. Section 1(4)(d) of the PTA makes it clear that “the public” includes the public outside the United Kingdom. I consider “necessity” here solely in terms of the national security case. The submission that the Applicant’s decision that the control order remains “necessary” is flawed on other grounds, in particular the failure to consider whether E could be prosecuted in the light of the material contained in the Belgian judgments, is considered in paragraphs 107-124 below.

The factors to be taken into account in considering whether a control order is necessary require an assessment of risk, a value judgment. I have referred to the decision of the Court of Appeal in MB’s case as to the approach to be taken on this issue: see paragraphs 34-37 above. Thus, I have regard to the relative institutional competence of the courts and the executive branch of government. The Secretary of State has the benefit of the advice of the Security Service, the Police and other bodies in assessing the measures necessary to protect the public against the activities of a terrorist suspect. As was stated in MB’s case, he is better placed than the court to decide the measures that are necessary to protect the public. I also recognise that the factors to be taken into account in determining the restrictions that it is necessary to impose include the nature of the suspected involvement, the resources available to the Secretary of State, and the arrangements that are, or can be, put in place for surveillance.

Although it is accepted by the Applicant that E is not personally violent, the case against him is that he has recruited and facilitated terrorism or terrorist support networks. It is clear that those who do this pose an enormous danger to the public around the world. The open material upon which I have concluded that the Applicant was entitled to have a reasonable suspicion that E was involved in terrorism-related activity (see paragraphs 65-70 above) shows the nature of the threat.

As far as E’s will and capacity to continue to engage in terrorism-related activities is concerned, Miss Giovannetti submitted that as well as E’s history and level of commitment I should consider whether he has:- (a) attempted to be candid about any previous involvement, (b) made any attempt to assure the Secretary of State or the Court that he intends to refrain from terrorism-related activity in the future, and (c) distanced himself from former associates. I am sceptical about the significance of the fact that E has not assured the Secretary of State or the Court that he intends to refrain from terrorism-related activity in the future. While a carefully worded statement might avoid exposing him to the risk of prosecution, such assurances are likely to be assessed as self-serving. What is important is to assess the evidence upon which the assessment is made that there is a risk of E remaining willing to re-engage and being capable of re-engaging in such activities.

Mr Starmer submitted that there has been no allegation of any specific activity since his detention in December 2001, and that his will and capacity have been affected by his time in detention and the imposition of the control order. He accordingly submitted that the Applicant must factor this lapse of time and the effect of detention and the control order into his assessment. Reliance is placed on the fact that all but one of those identified in open evidence as E’s associates involved in terrorism-related activities are in prison or dead. Mr Starmer also relies on the fact that there is no open evidence showing that E breached the control order.

Reference has been made to the fact that two of E’s known associates are due to be released from prison in 2007 and to the resilience of the networks with which E was suspected to be involved. However, the risk of re-engagement with his former associates is not at the core of Witness J’s evidence or of the Applicant’s case. At the core of that case is the Applicant’s assessment that there is a risk that E will engage with others involved in radical Islamic terrorism-related activities, rather than with those identified as his associates in the past. Reliance is placed on his level of commitment, his seniority, the extensive range of his contacts, and the fact that not all his associates may necessarily always be known to the Security Service. The assessment is that as a senior and significant organiser and facilitator E would be slow to give up his commitment to the cause.

The material contained in the Belgian judgments, and set out in paragraphs 65-70 above, supports the Applicant’s assessment that E had a high degree of commitment to the extremist cause and there is a material risk that he would re-engage in terrorism- related activity notwithstanding the imprisonment of his former associates. I have had regard, in particular, to evidence about the senior and leadership position E held in the London network, his experience in preparing and moving people to Afghanistan for terrorist training, and providing accommodation, false documents and other assistance to those engaged in terrorism or involved in support networks. The first instance Belgian judgment states that the degree of indoctrination is relevant and that a high level of ideological commitment may render a person highly prone to recidivism: see page 83 of document 4b to Amended and Updated First Open Control Statement. This is consistent with and supports the Applicant’s assessment.

Mr Starmer is undoubtedly correct in submitting that the lapse of time and the effect of detention and the control order on E must be taken into account. But the impact of this factor depends on the evidence. Other than the effect of the lapse of time itself, in the absence of evidence from E, the only evidence in support of the submission that it has reduced the risk posed by E is his mental state. My findings on E’s mental health are set out in paragraphs 179-180 below. In short they are that he has a moderately severe depression and lifting the control order is likely to result in an improvement in his mental health. Accordingly, this factor is, at best, neutral. More importantly, the Applicant’s case that it remains necessary to subject E to a control order is not solely based on the historical evidence.

There is support in the closed material for the Applicant’s assessment that there is a danger that E remains willing to engage in terrorism related activity should he have an opportunity to do so. I have referred to the concern expressed by the Court of Appeal in MB about the use of closed material. The potential for unfairness to the party denied the right to know the details of what is said against him is manifest. Although the Special Advocate system provides undoubted safeguards, and E’s Special Advocates have played a crucial part in this case, it is important for a Court considering closed material to scrutinise it very carefully, to examine its weaknesses and gaps, and to distinguish evidence based assessments from those based on speculation. I have done so and, while I in part accept the submission of E’s Special Advocates that some of the closed material does not in fact assist the Applicant, I have concluded that, discounting that, the remainder of the closed material does support the Applicant’s assessment.

As far as compliance with the terms of the control order is concerned, witness J did not accept that E had fully complied with them. There was little open evidence on this. It was accepted that E’s meeting with Taleb Benaissa at the Afghan Centre mosque was not untoward or of concern. Further evidence was given in closed session from which I am satisfied that E did meet Benaissa covertly and in circumstances reasonably giving rise to concern by the Security Service.

The closed evidence also provides additional support for the Security Service’s assessment. Their assessment is that, even if E has complied with the terms of his control order, there remain real opportunities for him to engage with persons assessed to be involved in terrorism-related activity, or suspected of such involvement, and that there is sufficient present risk that he would do so.

It was not put to witness J or Mr Jones that any of the individual obligations bore no rational connection to the risk posed by E. Nor was J cross-examined as to the necessity of any of the individual obligations. The implications of this are considered in paragraphs 296-297 below. However, underlying some of Mr Starmer’s questions and submissions was the idea that the monitoring of E by the Security Service could address any risk without the need for a control order. The implication was that since the Security Service takes a close interest in E, any re-engagement by him in terrorism-related activity would be quickly detected because either he or those with whom he was associating would be monitored.

While some forms of monitoring, for example extensive surveillance, may be effective, not all are. Moreover, such an approach does not take account of the resource implications of a number of forms of monitoring, in particular surveillance. The argument that it is proper for the Secretary of State to conclude that someone assessed to be a risk should be subjected to a control order simply because the level of risk he poses does not justify the resources that would afford a high level of monitoring is one which should be treated with great caution. But the resource implications and the demands on those resources are, as the Court of Appeal recognised in MB’s case, relevant considerations in the assessment of whether a particular obligation is necessary. The justifications for the particular restrictions placed on E (see paragraphs 125-128 below) recognise that they cannot entirely prevent him from engaging in terrorism-related activities, or seeing people who are of security concern, but state that they reduce his ability to do so without detection. It is not legitimate to argue that because, for example, a 12 hour curfew leaves sufficient time outside the home to permit terrorism-related activity, the Secretary of State’s assessment that the obligations are necessary is, for this reason, flawed.

The closed evidence as to present risk, together with the open evidence as to E’s seniority, level of commitment and range of contacts, and the fact that two of his associates are due to be released from custody in 2007 have satisfied me that the continuing decision of the Secretary of State that it is necessary on national security grounds for E to be subject to a control order is not flawed.

The Process for making E’s control order

The Evidence

Evidence on the process for considering whether to make a control order in general and in E’s case was primarily given by Christopher Jones, the Home Office civil servant responsible for a team of seven who work on the implementation of the Control Order system. There was also evidence from J, the national security witness, and in the statement of Mr Whalley, the then Director of the Division. Mr Jones chairs the Control Order Review Group (“CORG”), which since May 2006 has reviewed control orders on a quarterly basis. He has been in his current post since April 2006. With regard to matters before he was in post, including the making and renewal of E’s control order, he said his evidence was based on documents and consultations with colleagues. Miss Byrne stated when giving her evidence in Mr Abu Rideh’s case that the procedure before the creation of CORG was simply a more informal version of the present procedure. Their evidence about the procedure used to consider whether to make a control order was not challenged.

In this section I summarise the salient points that emerge from the evidence about the procedure in general and the consideration of E’s case (excluding the evidence about the consideration of prosecution). In the light of the agreement by E’s representatives (see paragraph 55 above), I also take account of the evidence as to the process in general given by Miss Byrne in Mr Abu Rideh’s case. I deal with the evidence as to what consideration was given to the possibility of prosecuting E for a terrorism-related offence separately in paragraphs 107-124 below.

Mr Jones stated that the decision to make a control order was taken by the Home Secretary on the basis of a detailed intelligence assessment by the Security Service of the closed and open evidence and the proposed obligations. The procedure for the making and renewing of control orders, including the procedure for consulting the Police, has been in place since the inception of the regime. In paragraph 10 of his statement Mr Jones says, that when considering what obligations should be imposed upon an individual, the Secretary of State must balance the need to protect members of the public from a risk of terrorism with the need to ensure that the rights of the individual concerned are not breached. Paragraph 11 of Mr Jones’s statement says:

“The Secretary of State also takes account of the particular circumstances of the individual in respect of whom the order is to be made, including known personal and family circumstances. Where appropriate, consideration is also given to the impact that the Control Order may have on the Convention rights of third parties. The Secretary of State does not accept that he is required to make specific enquiries of the Controlled Person or his family as to the imposition or terms of the Control Order. However, he does, of course take into account all the material available to him in order to ensure that the interference caused to the rights of the Controlled Person and his family is necessary and proportionate. He is always willing to take into account any representations that are made, as well as any reports or other materials that are submitted. So, for example, while he would not usually consider it appropriate to interview family members, or to make enquiries of the family’s medical practitioner, or the children’s schools, he would, of course consider any information supplied by them. In particular, he is conscious of the fact that the Control Order will have an impact on the family of the Controlled Person, and is always willing to give careful consideration to any proposals that the Control Order should be varied, so as to minimise the effects on them, so far as is consistent with the purpose of the Control Order.”

During the course of the hearing two additional documents relevant to this issue were put before the Court. These were not in E’s files in the Home Office but were discovered following a renewed search by the Home Office of other files. The first document is a letter (redacted in part on the grounds of relevance) from the Crown Prosecution Service to Detective Chief Superintendent White of the Metropolitan Police dated 19 January 2005 about the prospects of criminal prosecution of 13 individuals detained under the 2001 Act (referred to in the letter as “ATCSA”). Although the name of the writer of the letter was redacted, it emerged from the evidence (Footnote: ⁶) that the letter was from Miss Hemming, Head of the Crown Prosecution Service’s Counter Terrorism Division. The letter is considered in paragraphs 110-111 and 259-265 below.

The second document contains the minutes of meetings in the Home Office on 7 and 8 March 2005 to discuss potential control order cases, including E’s. These meetings were attended by: the Home Secretary, Sir John Gieve, the Permanent Secretary, Home Office civil servants and legal advisers, counsel, Deputy Assistant Commissioner Peter Clarke, the National Co-ordinator of the Anti-Terrorist Branch, and members of the Security Service, who now take responsibility for consulting the relevant Police forces about the possibility of prosecution, and Security Service legal advisers. The minutes contained redactions but an unredacted version was included in the closed evidence. As a result of a request by E’s Special Advocates, the Applicant agreed that information from the closed version of the minutes of this meeting could be communicated to those representing E.

Three further documents were put before the court by Miss Byrne in Mr Abu Rideh’s case. These are: a letter, dated 22 September 2004, to the Home Office from a member of the staff of Deputy Assistant Commissioner Peter Clarke about the approach taken by the Police in relation to approaching the CPS about the prosecution of individuals detained under the 2001 Act; a letter dated 11 January 2005 from Miss Byrne to Assistant Commissioner Sir David Veness asking the Police and the CPS to review the cases of the detainees to see whether there was sufficient evidence to prosecutte them, and a letter, dated 20 December 2006, to Mr Abu Rideh inviting him to make submissions about any factors or circumstances he wished to have taken into account by the Secretary of State in considering whether to renew his control order on its expiry on 11 March 2007.

The meeting on 7 March to discuss potential control order cases was opened by Robert Whalley, then Director of the relevant section in the Home Office. He explained that those present would explain to the Home Secretary the background to the cases and why they had recommended these individuals be controlled and why they had recommended the chosen controls in each of the 10 cases. The Home Secretary would have the opportunity to question those present and then reflect on the cases further. The same people would reconvene on the following day and the Home Secretary would be able to confirm whether he was content with the proposed control orders. Mr Whalley explained the statutory requirements of which the Home Secretary would have to be satisfied; i.e. that there were reasonable grounds for suspecting the individuals were involved in or would resume terrorism- related activity (as defined in the Terrorism Act 2000), and that the recommended controls were proportionate to the threat posed.

The minutes of the meeting refer to a submission to the Home Secretary setting out further detail. It is recorded that the Home Secretary asked for confirmation that it was the view of those present that the proposed controls did not breach the ECHR and was told that the assessment had been made that a curfew between 1700-0700 did not amount to a breach. The references in the minutes to the consideration of prosecution are set out at paragraphs 112 below. The remainder of the minutes state:

“4.

The Home Secretary asked to what extent other members of the household would be inhibited from carrying out their lawful activity. [Redacted name] explained that the main restrictions were on the use of the internet and mobile phones. Visitors to the house must be approved but [redacted material].

5.

The Home Secretary asked whether we had been in dialogue with the detainees lawyers. [Redacted name] explained that whilst we had discussed bail conditions, it was difficult to approach detainees on the basis of legislation that was still before Parliament.

….

7.

In relation to the three detainees in Broadmoor the Home Secretary asked whether it was the Security Service’s view that they would seek to recoup or would re-engage in their previous activities. Although [he] had not seen the medical advice [Redacted name] was of the view that all would re-engage. Bob Whalley highlighted the additional risk that some of them had reported suicidal tendencies. In response to a question from Sir John Gieve, Bob Whalley confirmed that mental health care of those released was being considered.

CASES

…

9.

[Redacted name] explained that there were 10 cases being put forward [redacted material]. All had been updated thoroughly since certified under the ATCSA. The cases presented contained a detailed consideration of the nature of their activity and an explanation of how the orders would curtail such activity. They had been examined by Counsel and all met the current legal test that there was a reasonable suspicion that they were engaged in terrorist activity. …

…

[E]

14.

[Redacted name] explained the case against [E] and his family circumstances as per [Redacted name’s] submission of 7 March 2005.

15.

[Redacted material]

…

[the case of another person]

28.

Sir John Gieve also asked whether we had considered the impact on the family. [Redacted name] thought the Home Office had [done]this and this was reflected in [Redacted name’s] submission.

FOLLOW UP MEETING ON 08 MARCH 2005

….

6.

The Home Secretary thanked all those involved in the cases and confirmed that on the basis of the information provided and assuming that the legislation was passed he would be willing to sign the control orders against the 10 people discussed.”

Mr Jones was asked whether, on the introduction of the control order regime, those individuals who had been detained under the 2001 Act were subjected to what were described as “template” obligations. He stated that as a result of looking at the documents and talking to colleagues he believed that the obligations were tailored to the individual. Since the hearing the court has been provided with copies of the control orders made in March 2005 in respect of those who had been detained under the 2001 Act. Not surprisingly, a common framework is used in all. This led to the sending out of letters citing an identical basis for all the decisions. Mr Whalley explained in his statement this was due to a clerical error and was corrected shortly afterwards. As far as the obligations are concerned, the basic model is also the same for each control order. All impose a twelve-hour curfew period and all contain the same requirements for a tag and the prior approval of visitors to the residence. The obligations are not, however, identical. Apart from the obvious difference in the addresses at which the controlled persons were required to live, the spouses and children of married controlled persons were authorised to enter the specified address, and, where there were children, so could any person of or below the age of the oldest child. Only three of the controlled persons were prohibited from buying and selling computers and communications equipment. In all but one case there was an identical exemption from the prohibition on unauthorised prearranged meetings for prayers at mosques. In that case there was an exemption for prayers at mosques but the controlled person was prohibited from leading prayers.

The evidence can be summed up as follows:-

Consideration of the possibility of prosecuting E:

The evidence:

In relation to the question of prosecution, evidence was given by J, Mr Jones and, in Mr Abu Rideh’s case by Miss Byrne. There was no evidence from either the Police or the Crown Prosecution Service.

On 6 April 2003 E’s solicitors, Birnberg Peirce, wrote to the Crown Prosecution Service asking whether decisions about prosecuting nine individuals detained under the 2001 Act had been taken. In error no letter was sent asking about E. The Crown Prosecution Service replied in a letter dated 15 May 2003 that “no one in the Casework Directorate has taken any decisions as to whether or not any of [those named] should be prosecuted”. On 21 November 2006, shortly before the hearing, Birnberg Peirce wrote in similar terms about E. Miss Hemming, Head of the Crown Prosecution Service’s Counter Terrorism Division, replied on the same day stating that “a search of our records has been made and we have no trace of any person in either the Casework Directorate or the Counter Terrorism Division having taken any decisions as to whether E should be prosecuted”.

Miss Byrne’s letter dated 11 January 2005 to Assistant Commissioner Sir David Veness stated that, as part of the review of the options available to government in the light of the decision in A and others v Secretary of State for the Home Department, the Home Secretary wished the cases of those detained under the 2001 Act to be reviewed by the Police and the CPS “with a view to your determining whether there is yet sufficient evidence to mount a prosecution in any of their cases”. The letter also refers to discussions about this in 2004, states that the Home Secretary wanted to be able to update colleagues and Parliament, and asks for a response “next week”.

I have referred to the letter dated 19 January 2005 from Miss Hemming to Detective Chief Superintendent White of the Metropolitan Police about the prospects of criminal prosecution of 13 individuals detained under the 2001 Act (referred to in the letter as “ATCSA”). In view of its importance, I set it out in full. The letter states:

“ATCSA Detainees -- Prospects for Criminal Prosecution

Following receipt of a letter for information from the Home Office, you asked me to consider the case against each of the ATCSA detainees with a view to whether there would be any prospect of a prosecution against any of them. As you are aware Detective Superintendent [X] and myself visited Thames House yesterday to consider what material was in existence against each of the detainees and to consider whether any further investigation needed to take place with a view to criminal prosecution.

It would be impossible without significant resources and time to read all of the primary material against each detainee, so we carried the review by considering the full statements prepared by the Home Secretary for the ATCSA proceedings. These were substantial documents summarising the main case against each person and identifying where the information came from. From this, we were able to see what information was held against each detainee and to establish whether the information could potentially be converted into admissible evidence or, whether it came from a closed or inadmissible source that could never become part of a criminal trial.

I will deal with each detainee in a short paragraph and will identify him by initials only for the purposes of this letter.

1.

[name] was detained on [date]. An initial search took place [at] his address on [date] and some material [redaction] was recovered. At this time, neither S57 nor S58 TACT was in force. Nothing of a similar nature was recovered in the later search on [redaction]. A criminal case was considered for [redaction] offences, but PII difficulties prevented a prosecution going ahead. The information about [redaction] terrorist activities comes mainly from closed or inadmissible material that could never be used in a criminal prosecution.

2.

[name] was detained on 19.12.01. Nothing of an incriminating nature was recovered on the search other than evidence of association with known individuals. He has previously been the subject of investigation and arrest [in another country], but was released without charge. Most [of] the information against him comes from closed or inadmissible material that could never be used in a criminal prosecution.

3.

[name] was detained on [date]. He was the subject of a [redaction] investigation from [date] to [date] but there was insufficient evidence to prosecute him for any criminal offences. Most of the material against him comes from closed or inadmissible sources that could never be relied on in a criminal prosecution.

4.

E was detained on 19.12.01. Some documentation was found at the time of detention that suggested involvement with fraud, but there was insufficient to prove any offences. The information about his terrorist-related activity comes from closed or inadmissible material that could never be used in a criminal prosecution.

5.

[name] was detained on [date] and is now subject [redaction]. We looked at some material that was seized at the time of detention, but it did not even come close to a S57 or S58 TACT offence. There is some evidence of [redaction] but the information against him is essentially closed or inadmissible material that could never be used in a criminal prosecution.

6.

[name] was detained on [date]. Nothing criminal in nature was recovered on his detention and the information against him is closed or inadmissible material that could never be used in a criminal prosecution.

7.

[name] was detained on [date]. Some review of the evidence has taken place previously by both SO13 and the CPS [redacted] and it was (sic) that there was no potential for further criminal investigation or prosecution. Most of the information against [H] comes from closed or inadmissible material that cannot be used and nothing new has come to light since your officers looked at the matters last year. I have asked for an enquiry to be made with [the authorities in an EC country] to see if they have anything that might assist us, but failing that there is nothing upon which we could consider criminal prosecution.

8.

[name] was detained on [date]. [redaction] and some other material was recovered at the time of his detention and he was subject to a [redaction]. After a full investigation, they concluded that there was no evidence of [redaction]. He has previously been investigated [redaction] but nothing current. The information about his terrorist activities comes from closed or inadmissible material incapable in use in a criminal prosecution.

9.

[name] was detained on [date]. He is also [redaction]. His terrorist activities can only be proved with closed or inadmissible material that cannot be used in a criminal trial.

10.

[name] was detained on [date]. There has been a previous review of admissible evidence against him in the same case as [redacted word] with the same result. The rest of the information against [him] is from closed or inadmissible material in capable of use in a criminal prosecution.

11.

[name] was detained on[date]. He is [redaction ] and a full review of the admissible evidence in that investigation has been carried out. The only criminal offences disclosed against [redaction] and he was [redaction] and is [redaction]. The only other information against him is in closed and inadmissible material incapable of use in a criminal trial.

12.

[name] was detained on [date]. He was also considered as part of the [redaction] and there was insufficient evidence to prosecute him for any offence. Again, any other material against him comes [from] closed or inadmissible sources incapable of use in a criminal prosecution.

13.

[name] was detained on [date] and is also [redaction]. Evidence [redaction] has been considered previously and a decision made not to take any action for evidential reasons. All the other information against him comes from closed or inadmissible sources incapable of use in a criminal prosecution.

It will become immediately evident from reading the above that the majority of the information relied on in the ATCSA hearings comes from sources that could not be relied upon in a criminal case. This is either because it comes from intelligence sources or agents that could not be revealed publicly or from the type of material that [is] legally incapable of use or would be ruled inadmissible if we sought to rely on it. In none of the cases was there identifiable material that was capable of further criminal investigation; where there was anything potentially admissible, it had already been considered and rejected or had been the subject of a criminal prosecution. In the only case where potential material had not been considered by either the Police or the CPS (AG), [a redacted name] and myself looked at the material and concluded that it was incapable of amounting to an offence.

The only outstanding enquiry is [in the case referred to at paragraph 7 above]; if nothing is [forthcoming from the EC country referred to] there is no prospect of any further criminal prosecutions against any of the ATCSA detainees. If something else comes to light, then of course we would be happy to consider it.

I hope this assists with your reply to the Home Office. Just for your information, I have sent the above in the form of a briefing note to the Attorney General and the Director.”

Miss Byrne said that she saw this letter before the meeting on 7 March 2005. It is clear that its purpose was to assist the Police with their reply to the Home Office. After this letter was made available during the hearing, Birnberg Peirce wrote asking how its contents could be reconciled with the CPS’s letter dated 21 November 2006 referred to in paragraph 108 above. In her fourth witness statement, Mrs Peirce states that Miss Hemming telephoned her on 27 November and stated that the visit to Thames House described in the letter dated 19 January 2005 was made by her and that it was a “one-off” visit for the purpose of viewing documents in the possession of Thames House that concerned those then detained under the 2001 Act. Mrs Peirce states that Miss Hemming said that, beyond that visit, no official file was created in respect of the individuals concerned, and that that visit represented the only occasion on which the CPS was asked to consider the individual cases. This was why nothing showed up in the CPS records and why her letter of 21 November was in those terms. Had there been any other consideration, it would have shown up in the CPS records.

The minutes of the meetings on 7 and 8 March to discuss potential control order cases have been set out in paragraph 104 above, but omitting the references to consideration of prosecution. Those references are:-

“…

CASES

8.

Bob Whalley advised the Home Secretary that the cases that were about to be discussed had been prepared with advice from Counsel and consideration had been given to prosecution of each of the 10 but the CPS had confirmed in a letter dated 19 January 2005 that prosecution was not possible.

…

[E]

…

16.

[As recorded in the minutes, this paragraph does not make sense. The original manuscript notes taken by the Private Secretary state: “HS – what’s posn try to prosecute + fail; Peter – CPS has seen; HS – if asked has CPS seen can I say yes; Peter – yes 19/01 letter Sue Hemming; HS – OK”.]

FOLLOW UP MEETING ON 08 MARCH 2005

1.

At a meeting with the same attendees (with the exception of Sir John Gieve), Bob Whalley explained that the CPS had confirmed in a letter dated 19 January that they could not prosecute any of the current cases.”

In his statement dated 8 April 2005 Mr Whalley said:

“6.

Before making the Control Orders, the Secretary of State consulted the Metropolitan Police Commissioner about whether there was evidence available that could realistically be used for the purposes of prosecution of these individuals for an offence relating terrorism. It was the view of the Metropolitan Police Commissioner that none of the ten individuals could be prosecuted successfully for such offences. The Police had themselves consulted the CPS who were of the same view.”

Mr Jones states that the terms of the question posed to the Police and the fact that the Police had consulted the CPS led him to conclude that notwithstanding the terms of the recorded Police response, the Police had considered the correct issue and the effect of their answer was that E could not be successfully prosecuted because there was insufficient evidence.

I turn to the oral evidence. Witness J was asked whether the proceedings in other jurisdictions had been examined to see whether there was evidence that could be used in a prosecution in this country. J stated that the proceedings in Belgium had been examined. J did not believe that the Security Service had asked for access to proceedings in France or Italy. An open note on the closed evidence concerning requests to the French and Italian authorities to obtain judgments or transcripts of relevant proceedings in those countries states that as to France there were no statements, judgments or transcripts in the public domain in line with normal procedures in France. The possibility of obtaining these by a Commission Rogatoire was raised, but was not pursued by the Special Advocates. As to proceedings in Italy, the only information provided to the Special Advocates in relation to potential criminal proceedings against Saber was that he had been arrested for fraud and immigration offences (with no indication that these extended to any terrorist-related offences).

J had not personally been involved in conversations with the CPS regarding the prosecution of E. Nevertheless, on the basis of consultations with colleagues and knowledge of the procedures used before seeking a control order, J believed that others in the Security Service had considered this. In the period J had been working on E’s case there had been ongoing consultation about this. J stated that when the Security Service investigated a target it sought to get as much information as possible and was not considering the question of prosecution. When material came up which looked as if it showed that an offence might have been committed the Security Service would consult the Police. What would then happen would depend on the nature of the information. J stated that the Security Service would regard this exercise as of assistance rather than a necessary irritation; successful prosecution and imprisonment would reduce the threat to national security by an individual. J said that ad hoc consultations by the Security Service with the Police were extremely frequent.

J believed E’s case was first sent to the Police prior to his initial detention under the 2001 Act but had not seen anything in writing. Initially J had concentrated on the position following E’s release and under the control order but, after making a further enquiry, stated there had been consideration of his case before he was detained in 2001. The CPS considered the case at that time and advised not to prosecute.

Asked about whether there had been any consideration by the Crown Prosecution Service as to prosecuting E between December 2001 and January 2005 when he was detained under the 2001 Act, Mr Jones said in his experience the Police would only refer a case to the CPS if they believed there was a case to be made. This was confirmed during Miss Byrne’s evidence in Mr Abu Rideh’s case when the letter dated 22 September 2004 from a member of DAC Clarke’s staff to the Home Office was produced. The letter was a reply to an enquiry from the Home Office in May 2004. It inter alia stated that the Police would only refer a case to the CPS if they believed that sufficient admissible evidence was identified to support a prosecution. Where, following Police examination there was insufficient evidence, those cases would not be submitted to the CPS. The letter also said that “currently there is no requirement, nor is it practice, to seek the advice of the CPS where the lack of admissible evidence is clear”.

According to Mr Jones, at the meetings on 7 and 8 March 2005 the information given by DAC Clarke to the Home Secretary and others there was that he had consulted the CPS. Witness J said the draft case provided to the Deputy Assistant Commissioner would be similar to the case before the court but without the supporting documents. The Police would have had much of the documentation because of ongoing consultation with them during the investigation of E by the Security Service. Witness J said that anything specifically requested by the Police would be provided: at that stage it was for the Police to review and decide whether a Control Order was the best way forward.

In relation to the renewal of the Control Order against E in March 2006 the only letter found on file to date was Deputy Assistant Commissioner Peter Clarke’s letter dated 23 February 2006 to a Grade 6 official of the Home Office’s Terrorism and Protection Unit. After stating stated that its purpose was to confirm the Police position in relation to the potential for prosecuting E, it continued:

“Based on the evidence and intelligence which is currently available, I am satisfied that there is insufficient evidence to support a prosecution of this man for an offence relating to terrorism.”

Mr Jones said he believed that a letter from the CPS to the Police was sent to the Home Office with the exchange of correspondence but neither it nor the covering letter from the Police could be found in his files or those in DAC Clarke’s office. I have referred (see paragraph 111 above) to Gareth Peirce’s evidence that in a telephone conversation on 27 November 2006 Miss Hemming, the Head of the CPS’s Counter Terrorism Section, told her that the visit to Thames House on 18 January was the only occasion on which the CPS was asked to consider individual cases. Other than the reference to evidence and intelligence then available, DAC Clarke’s letter dated 23 February about E gives no reasons. The government has accepted a recommendation by Lord Carlile that clear reasons be given in such letters but it did so after the renewal of E’s control order in March.

As a result of a request by E’s Special Advocates, the Applicant agreed that E could be given the following information from the minutes of two meetings of CORG which were closed documents. In the section of the minutes of the meeting of 10 May 2006 dealing with E’s case there is a section headed “Police assessment”. In the section dealing with the consideration of his case in the minutes of the meeting of 16 August 2006 there is a section headed “Police assessment of compliance with order”. The available minutes “do not state, either in the sections referring to “Police assessment” or elsewhere, that there was any consideration of the prospects of prosecution of E in relation to terrorism-related offences.” Mr Jones was asked whether anyone had mentioned Belgian proceedings and whether they affected the prospect of prosecution, but he stated that the review only considered activity in the particular quarter and not the whole case. He said that at the May 2006 meeting he, from the chair, asked if there was a prospect of prosecution and the Police said there was not. It was for the Police to respond and to raise matters updating the position at the meeting. Updating evidence about prosecution for the underlying offences is also brought to the meeting by the Security Service. Mr Jones was not aware of anyone considering interviewing E as part of the ordinary criminal process since he became involved on taking up his current post.

With regard to reviews after 2005, witness J said the quarterly reviews of the Control Order would consider whether there had been a breach of the order which could justify prosecution. Asked about prosecution for the allegation underpinning the control order, J said that if new evidence came to light it would be reassessed but did not believe evidence had come to light which would be suitable for use in prosecuting E. J did not know whether there had been a review of the possibility of prosecuting E since March 2005 but assumed it had been done. J did not believe there had been any review of the question of prosecution in the light of the Belgian judgments.

Witness J said that if underlying information had been given by the Security Service to an outside agency it would keep a copy of what had been given, for example a bundle such as those produced for the court hearings. If the Police wished to copy material to the CPS they would need to get the permission of the Security Service. Asked whether that decision was recorded, J said it would depend on the process in which agreement to share information was made. In the Control Order cases the decision to share was made at meetings attended by the Home Secretary, the Deputy Assistant Commissioner of the Metropolitan Police and the Security Service’s Head of International Counter-Terrorism and that minutes would be taken of such meetings. The meeting in March 2005 was such a meeting. J was not aware of any request by the Police after March 2005 for further documents, evidence or intelligence either in general or in E’s case. J had not seen documentation indicating there had been a Police decision about prosecution after March 2005 and did not believe there had been one.

The evidence about the possibility of prosecution can be summed up as follows:-

The obligations are set out in paragraph 49 above. The Applicant’s justification for the individual obligations are set out at paragraphs 24 to 34 of the amended and updated version of the First Open Control Order Statement and paragraphs 13 to 23 of the March 2006 Open Statement in support of the renewal of the control order. These deal with the specific obligations in groups.

The first group concerns the curfew. It includes the obligations to wear a tag, to reside at the specified address and remain within it between 7pm and 7am, to report to the monitoring company, and to permit entry at any time to the Police and to representatives of the Secretary of State and the monitoring company inter alia to search the premises. Witness J said, while these obligations cannot entirely prevent E from re-engaging in terrorism-related activities, they reduce his ability to do so without detection. The tag and the reporting conditions are efficient ways of monitoring E’s compliance with the curfew. J assessed these obligations were necessary.

Relying on the material in the November 2006 Third Open Statement to which I have referred in paragraph 72 above, J stated that E continues to associate with others who were themselves involved in the same or other terrorism-related activity. The prohibitions on pre-arranged meetings or gatherings other than group prayers, and on E permitting anyone other than the specified persons to enter his residence except with prior Home Office approval are considered necessary to restrict his capacity to contact such persons. Although it is accepted that E will be able to meet other people who are of security concern, this restriction limits that possibility. J said the aim of these restrictions is to reduce the risk that he will involve himself in facilitation activities again.

The restriction to one fixed telephone line and the prohibition of internet use is in order to limit E’s ability to communicate with his extremist associates. The requirements that he have only one bank account and is prohibited from transferring money, documents and goods abroad reflect in particular the financial dealings and sending individuals overseas described in the statements.

Mr Starmer submitted that, given that E has been subject to either detention or a control order for almost five years by the date of the hearing, it was incumbent on the Secretary of State to consider relaxing the restrictions to which he is subjected. The Secretary of State is under a duty to consider the necessity of the order and of the individual obligations in it. I accept that this must include a duty to consider whether any of the obligations can be relaxed in the light of the current circumstances, including the passage of time since the individual under consideration was first subject to detention and control. This issue will be considered in the context of determining whether the decision to maintain all the restrictions at the present time is proportionate to the interference with the rights of E and his family under Article 8 of the Convention: see paragraphs 294-297 below. It is relevant to note here that witness J and Mr Jones were not cross-examined as to the necessity of any of the individual obligations. Accordingly, the evidential basis is fragile for me to conclude that the Secretary of State’s continuing decision that all the obligations remain necessary is flawed.

Evidence about the impact of the restrictions on E, S, and their young children (who are aged between 7 years and 10/11 months) was given by Professor Kopelman, Dr Phelan, Renée Cohen, and in statements by E and S. Renée Cohen’s expertise is as a psychoanalytic psycho-therapist and social worker. I deal with her evidence in this section and with the evidence of the two psychiatrists in the next one.

Although I refer to the account given by E and S in their statements about the impact of the obligations on them, in the light of S v Secretary of State for the Home Department, 27 July 2004, referred to at paragraph 80 above, I am able to give it only limited weight. This is because neither E nor S was made available for cross-examination by the Applicant. Some of what is in their statements does not sit well, is put into question or is inconsistent with other evidence, in particular that given by Mr Jones, who was cross-examined by Mr Starmer and Mr Singh.

Mr Jones said that some of what is contained in E and S’s statements was wrong and other matters indicate misunderstandings of what the Control Order obligations involve. In respect of a number of the matters about which either E or S or both of them complain, Mr Jones states that no application concerning them was received and that E is not entitled to assume that a request to modify the control order to meet them would have been refused.

I first deal with matters in the statements of E and S about which Mr Jones states that no application was received or there is a misunderstanding about what is required by the obligations in the control order. E and S state that they asked for her husband’s hours to be extended during Ramadan so that he could go to evening prayers and that they were told he would have to change his hours from 11 a.m. to 11 p.m. which would mean he would no longer be in a position to take the children to school. S states that, as she has a ten-month old baby to look after and is four months pregnant, it is not possible for her to take the children to school so her husband did not change his hours and is unable to go to the evening prayers. They also state that E was unable to go to their eldest son’s school during Ramadan for the Ifta, which meant that the son could not go either. E stated that the curfew obligations prevent him from going on holidays or taking day trips because he worries about the traffic and being back by 7p.m, and that they prevent him from taking his children to evening activities such as swimming, and going to parents’ evenings. Mr Jones said that E made no applications about any of these matters. The 12 hour curfew did not prevent E making day trips with his children. No application has been received from E requesting a variation to allow him to take a holiday within the country although Mr Jones stated that it was highly unlikely that an application to be away from the residence for any extended period would be granted if its purpose was simply to take a holiday.

In relation to what E and S say about the position during Ramadan, Mr Jones said that while other controlled persons had their morning curfew hours put back to compensate for the extension to the evening period E appeared to have had particularly strong grounds for needing to take his children to school. As, however, E did not raise the possibility of being enabled both to attend evening prayers and to take his children to school with the Home Office, he is not entitled to assume that such a request would have been refused. Mr Jones said one request from another Controlled Person to enable him to both take his children to school in the morning and to attend evening prayers was granted after having been initially refused. Similarly, with regard to E's statement (paragraph 12) that he has not been able to sort out problems with his rent and housing benefit because he was unable to make an appointment with the relevant officials and had to do so via his sister-in-law and his solicitors, Mr Jones stated that applications for meetings concerning such matters have been granted in other cases but no application was made by E. I have referred to the fact that, although Professor Kopelman said that he saw E seven times between January and November 2006, Mr Jones’s evidence that other than an application to attend hospital appointments with specialist doctors about his kidney condition, the Home Office received no applications for E to attend pre-arranged meetings, was not challenged.

E also stated that he could not work like other fathers and husbands, that he wishes to work, but to do so would mean approaching people in institutions who would have to be told of what he is accused and to submit to investigation themselves. Mr Jones stated that the Home Secretary does not understand it to be the case that E has ever been in regular paid employment in the United Kingdom. During the period between his arrival in 1994 and his detention in December 2001, he lived, as he does now, on benefits. He stated that there are cases in which a person subject to a Control Order is in employment and that the Home Office generally wishes to keep a person in employment unless the nature of that employment is a risk. E has not made any request to go to a job interview.

There is also some inconsistency between E and S’s statements and Mr Jones’s evidence. The first example is not a serious inconsistency. E stated that he asked for the curfew boundary to be extended to his garden during the summer so he could play with his children after 7 p.m., but the Home Office only responded in September when the summer nights were beginning to close in. Mr Jones stated the Home Office agreed to this request on 22 August. Secondly, in her statement dated 18 October 2006 S stated that when her mother came from Jordan she had to stay with someone else until she was cleared but Mr Jones’s evidence differs. He stated that approval was granted on the second day after the request was made and the letter from E’s solicitors dated 5 October 2005 indicated that Mrs S’s mother was due to arrive on 15 October so that the Home Office in fact approved her visit 8 days before her arrival.

Notwithstanding what I have said about the contents of the statements by E and S, and irrespective of the evidence about the particular impact of the restrictions on them and their children, it is evident from the list of restrictions set out above and the description of their purpose that the restrictions must have had a substantial impact on their lives. In the Applicant’s closing submissions it is accepted that there has been some impact on the family’s social networks arising from the obligations. Given that only a very small number of people have been authorised to visit the family home this understates the impact.

As for the remainder of E’s evidence, he states that his life is very stressful and frustrating, that he has a family that he wishes to protect and wishes to provide for but is unable to do so (paragraph 3). He states they have lost their friends, his wife has lost her social network, and they are isolated and alone (paragraph 4). He refers to the worries of his wife and children about the tagging and reporting and about when the Police come to search the house.

S made two statements: the first dated 18 May 2005, and the second dated 18 October 2006. In her first statement S refers to a prevailing sense of fear in the house as a result of being forced to live under the Control Order and to the fact that the children seem worried for their father. In her second statement she says that there is fear in the home whenever there is a knock on the door, that the children are constantly worried that their father will be arrested and taken away, and that they get worried if he leaves the room. In her second statement she also states that the worst thing is not knowing when the Control Order will end.

S’s first statement refers to the lack of privacy when Police officers come to search the house. She states that, although she is not frightened, she is in a constant state of anxiety, worried about the impact on the children, and about losing their friends and support network. She finds it intrusive to speak on the phone to female friends about female issues when she knows they are being listened to by the Police. E states that although S could have a mobile telephone she does not because she is worried that she might leave it on in the house contrary to the requirements of the control order.

S says that her friends do not want to apply for clearance to visit their house and some do not even call any more because they are frightened for their own families and husbands. In her second statement she says it is humiliating to have to tell neighbours or parents of local children that they can’t come into the house. The children ask why people no longer come to the house. She states that a ten-year old boy who used to come to the house can no longer visit unless he is cleared. The boy’s mother asked about being cleared but they could not promise her that her photograph would not be kept on a Police file and she decided it was best if she did not visit.

S maintains that the family is no longer able to attend people’s houses because according to the control order they are not allowed to attend prearranged appointments and culturally it is very rude to go to somebody’s house unannounced. She states that she sometimes visits her husband’s family alone but has to leave to be back by 7pm because she does not want him to have to wait at home alone while his family are socialising. Her second statement refers to having to leave social engagements to get home by 7pm because she would not wish to stay without her husband, and to an inability to attend weddings and parties as a family because E is not allowed to attend gatherings. She says that whenever they make requests about the restrictions they take so long to answer. They are unable to make a spontaneous decision about anything. She also refers to the fact that when she had her youngest child, although E was cleared to come to the hospital to be with her, he had to call the Police and the monitoring service to let them know because her contractions started in the middle of the night. She called her sister-in-law to go with her while he made the calls.

In her second statement S states her children do not lead normal lives because they can’t do the things that other children do. They were unable to go camping with some family friends in the summer because her husband could not be away from the home in the evening. She had to explain to her eldest son I, who had been told about Haj and the pilgrimage at his school, that they could not go because they did not have passports or travel documents.

S’s statements also refer to her worries about her eldest son, I. Her May 2005 statement states that he did not speak a word for 6 months after his father was imprisoned, that one of the monitoring boxes is in his room, and that at first they had many night-time calls about the tagging equipment which woke him and disturbed his sleep. I wanted to sleep in their room and not to be alone. S does not say that I was wetting his bed at that stage. In her 18 October 2006 statement S says that I still wets his bed although not as frequently as when the control order was first introduced, that he needs somebody with him when he is in his bedroom, and cannot sleep in the bed next to the window in his room. He needs her or her husband to take him to the toilet because he is scared and hates the monitoring boxes which he believes have cameras in them. It is, however, to be noted that Professor Kopelman reports that on 16 October 2006 S told him that I no longer wets the bed.

E and S describe the difficulty in getting reconnected after BT accidentally disconnected their telephone land-line. S states that the Home Office did not reply to solicitor’s letters and phone calls outside the hours of 9 am to 5 pm. That, and living without the telephone and with no communication to the outside world, was like living in a nightmare. E describes BT turning up to deal with the matter without an appointment, he not being able to admit them because they were not cleared, and BT putting the job to the back of its queue so they had to wait for two and a half weeks. Gareth Peirce’s statements also deal with the impact of the control order on S and the children. Her statement of 10 June 2005 states that the most significant difficulties for S arise because the order, and in particular the requirement that visitors to the house must be authorised, restricts her ability to obtain support from friends and family, because they are unwilling to go through the vetting process.

I turn to Renée Cohen’s report. I do so in this section because Ms Cohen is a psychoanalytic psycho-therapist and independent social worker who was instructed to provide a psycho-social assessment of E’s family and their circumstances, and in particular to assess the impact of the control order on S and the children. She interviewed S for an hour and a half at the house on 17 October 2006 with E acting as interpreter. S left most of the talking to E who was careful to interpret everything Ms Cohen asked although S did not always answer for herself and appeared very dependent on her husband. The children were present but Ms Cohen said it was not easy to engage with them because they do not speak English and initially were playing with their toys. She was able to ask I, who understands English, a few questions and E translated I’s answers. Ms Cohen later spoke to E’s sister-in-law to clarify and expand on a few points that were not clear to her.

S told Ms Cohen the family has become quite isolated and friends who used to visit her do not come to the house now because they do not wish to submit to the clearance procedure. Although S can visit friends, she does not go out alone at all and depends on her husband to take her which means she is not able to attend any function or gathering in the evening, including parents’ evenings at the school which are held at about 6.30 pm. She told Ms Cohen that the only people cleared to visit them at the time of the interview were E’s brother and sister and their families. I note that it was Mr Jones’s evidence, that more than one brother, and in March 2005 ABR a friend of S’s was approved. S told Ms Cohen she feels like a prisoner, that it is embarrassing that they cannot invite a neighbour in if one comes to the door, and that the family have to put up with regular visits from the Police which are disruptive and intrusive. The family is not able to carry on normal activities of daily living and this is very hard to bear in the light of the indefinite nature of the situation.

E’s sister-in-law told Ms Cohen that the children are quite bewildered by the situation. Ms Cohen said the issue of social isolation is especially troubling to the children. She records that they feel they are not like other children they know, that I cannot go to the swimming pool with E because the time of the day for men only swimming goes past 7 pm, and that the lack of access to the internet is beginning to be an issue for I whose school encourages him to look up information on it.

Ms Cohen’s assessment is that the long term impact on the children is likely to be significant and detrimental. She states they have to live with an extremely high level of anxiety, the security of their domestic space is regularly intruded upon and the authority of their father is undermined by the constant surveillance. She concludes that the level of anxiety is likely to be damaging to their mental health in the long term.

I turn to Mr Jones’s evidence as to how requests by and on behalf of E and his family were handled by the Home Office. Mr Jones said the correspondence between the Home Office and E’s solicitors, all of which he exhibited, showed that most such requests were dealt with quickly and efficiently. Routine requests, for example to attend a hospital appointment would be dealt with by the controlled person’s case-worker. Other requests would be referred to him and he would decide whether to deal with them or, in the light of the risks raised or the implications on the rights of the individual, in relation to the practice of his religion, for example, to refer them to senior colleagues or Ministers. The Police and Security Service would be consulted about all requests and there were colleagues in the Home Office with expertise on religious questions. The requests to extend the curfew to enable controlled persons to attend the sunset prayers in the summer of 2005 were referred to the then Director, Mr Whalley. The requests to vary curfews to enable mosque attendance during Ramadan were dealt with without consulting Ministers.

Mr Jones said delays occurred in the early days of the control order regime either because the regime was introduced quite quickly and the section in the Home Office had a lot of work to do to implement it, or because requests threw up new policy issues which needed careful consideration and took more time. He said it took a month to respond to a request to vary the curfew to enable E and other controlled persons to attend the evening prayers at sunset in the summer of 2005 because the request raised new policy issues. The workload of the section was the reason for the almost two months from a request for the approval of certain of E’s family members as visitors on 18 March 2005 and its approval on 13 May, although interim approval for E’s brother had been given on 22 April. Mr Jones said the delay was regrettable but examination of the full file over the whole period showed that the position had improved. An application made on 22 March 2006 on behalf of S to allow a close friend to visit was granted on 31 March 2006. He stated that letters dated 14 and 21 November 2005 from E’s solicitors and those dated 15 and 25 November from the Home Office show that a variation to enable E to accompany his wife to hospital when she went into labour was approved within 4 days of the provision of medical evidence of S’s due date.

Mr Jones said that other requests required consultation with and action by others. The seven weeks it took to sort out complaints first made on 23 June 2005 about calls from salesmen, and calls believed to be nuisance calls on the line installed in E’s residence by the monitoring company and dedicated to monitoring purposes, resulted from this. The Home Office responded to E’s complaint on 4 July 2005, and on 1 August 2005 to a letter dated 27 July 2005 stating that the problems were continuing. Asked about the eight weeks taken to deal with E’s request on 22 June 2006 that he be permitted to be in his garden after 7pm, Mr Jones said this potentially gave rise to significant security and practical considerations which required investigation. The Home Office had to consult the Police, the Security Service and the monitoring company. The Police had to check to see that others could not have access to the garden, and the monitoring company had to check that the tag would work in the garden. It was put to Mr Jones that the Home Office’s agreement to this request on 22 August 2006 came a few days after a Notice of Appeal dated 17 August had been served in respect of the failure to deal with it. He said that it was a coincidence that the request was dealt with 5 days later. August was particularly busy time for the Police and the Home Office with a significant number of arrests as a result of the airport alerts and everyone in his section was very busy.

Finally, asked about a 25 day delay in resolving problems with E’s BT telephone line and his monitoring line Mr Jones stated that the Home Office had given authority for a BT engineer to enter the premises within one working day and the remainder of the period was due to BT which stated it could not attend the property until 13 October.

With regard to the position of monitoring boxes in E’s flat, Mr Jones said he relied on information from the monitoring company about their position and the description of the rooms they were in. He accepted that the descriptions given to him were inaccurate; one of the monitoring boxes was in the living room in which there was also a computer, not in a “computer room”, and another was in one of E’s children’s rooms which was wrongly identified as a “spare room”.

The evidence can be summed up as follows:- 1. The restrictions in the control order have had a substantial impact on the social networks of E and his family because of the inhibiting or “chilling” effect of the requirement that visitors must be authorised, and to be authorised may have to provide the Home Office with their details.

Although there is evidence that E saw Professor Kopelman seven times in 2006, only one request to attend a prearranged meeting has been made on his behalf. This concerned a medical appointment about a kidney complaint. It was granted without delay. The requirement that prearranged meetings must be authorised does inhibit accepting invitations at short notice and making social arrangements in this way, and is in this sense an inhibition on the sort of social activity that is a common part of life. But the position of events generally arranged in advance is different. If applications to attend, for example, weddings and parties or meetings with health and welfare agencies are not refused or unduly delayed, the requirement for authorisation will not have a detrimental effect on social networks and more general activity. On the evidence before me it is not possible to conclude that this requirement has in itself significantly impacted on E. Some of any impact that there has been is due to his decision not to apply to attend, for example, weddings and parents’ evenings at his childrens’ school.

No request was made by E to the Home Office to enable him, in the light of his particular family circumstances, to vary his curfew during Ramadan to enable him both to attend evening prayers and to take his children to school in the morning. In the light of Mr Jones’s evidence, it is likely that such an application would have been successful.

S is particularly affected by the atmosphere in the house, by the lack of privacy resulting from the searches, and the fact that friends who used to visit her do not come because they do not want to submit to the clearance procedure. Also the childrens’ friends do not come because their parents do not want to submit to it.

S’s statements and Renée Cohen’s report indicate that S is very dependent on E. The impact of the restrictions on S is in part due to this and to understandable cultural factors in that she does not wish to attend peoples’ houses without E, an unannounced visit is culturally rude, and E needs authority for a prearranged visit. She does, however, sometimes visit other family members alone.

The effect of the restrictions is that, when things go wrong, as in the case of BT’s disconnection of the telephone line at E’s home, the control order regime affects the time it takes to sort them out.

Although the evidence as to the impact on I is not altogether consistent, and the evidence as to future impact on him and the other children is, as Mr Singh QC recognised, somewhat speculative, I find that the atmosphere in the house and the Police searches have affected I and the younger children. I also accept Renée Cohen’s evidence that the long-term impact on the children is likely to be significant and detrimental and damaging to their mental health although I note that her assessment in part depends on what E and S told her.

The Home Office does not have an altogether accurate picture of the situation at E’s flat because it has relied on reports of its monitoring company. This is likely to affect its consideration of requests by or on behalf of E and his family. For instance, the erroneous belief that there was no monitoring box in I’s bedroom was used to counter the suggestion that I was greatly concerned by it and would not sleep in the room at one stage.

While there have undoubtedly been some delays by the Home Office in responding to requests, I have concluded that, after teething difficulties with the new regime in part caused by the pressure on staff in the relevant section, the Home Office has on the whole responded without undue delay to requests for variations to the control order by E and his family. Since the initial period, where there has been delay, it has either been because the request raises a new policy issue or because of the need to consult other agencies. The impact of the restrictions on E and the family has, however, been affected by the delays which occurred.

In 2003 Dr Turner, who saw E in Belmarsh Prison in connection with E’s claim arising from his arrest and detention in May 1998, diagnosed E’s depression as of moderate severity. It is common ground that E continues to suffer from depression. There is, however, disagreement between Professor Kopelman and Dr Phelan as to its severity and whether E has symptoms of post-traumatic stress disorder (“PTSD”). Professor Kopelman considers E to be “severely depressed” and to show some residual symptoms of PTSD, which he had diagnosed in 2004 after seeing E in Belmarsh Prison. He also considers there is a causal connection between E’s health difficulties and the control order obligations, and that E’s health would improve if the order was lifted. Dr Phelan considers that E is suffering from a moderately severe depressive illness but, if wrong about this, it would be because the depression is a mild one rather than a moderate one. He stated it was certainly not severe. As to PTSD, Dr Phelan’s view is that while E described certain symptoms suggestive of PTSD, the symptoms suggestive of that disorder did not reach the diagnostic criteria. As to the connection between the control order and E’s mental health, Dr Phelan said he did not believe it could be assumed that lifting his control order restrictions would necessarily result in an improvement in his health. This was because although E had told him he would be 100% better if the control order was lifted, E also told him that he had got worse since leaving Belmarsh and that he saw no future for himself in the United Kingdom and was trapped because he was unable to go back to Tunisia.

Professor Kopelman first saw E in Belmarsh Prison in March 2004, six months after Dr Turner saw him. Dr Kopelman's report dated 26 April 2004 stated that E fulfilled the criteria for a major depressive disorder and that in his view E’s depression was very severe. He also stated that descriptions by E of flashbacks about the day his house was stormed in 1998 and his arrest in 2001, and other symptoms fulfilled the diagnostic criteria for post-traumatic stress disorder. He considered that the very severe depression, suicidal ideas and cluster of post-traumatic stress disorder symptoms resulted from E’s incarceration.

Following his release in March 2005, E’s GP referred him to Professor Kopelman, who saw E on seven occasions, the first (after some delay) in January 2006 and the last on 20 November 2006. There are no reports by psychiatrists or psychologists dated 2005 about E, S or the children. Professor Kopelman’s second report is dated 23 October 2006 and was prepared for these proceedings. Professor Kopelman concluded that E remains severely depressed despite treatment with mirtazapine, an anti-depressant. His mood is persistently sad and he experiences biological symptoms of poor sleep and appetite, has difficulty concentrating and making decisions, and easily becomes agitated. The report states that E scored very highly on the Beck Depression Scale indicating severe depression. Professor Kopelman states that E has suicidal ideas but would not carry them out because of his religious beliefs. He considers that E is not as serious a suicidal risk as he was when in Belmarsh but many of the symptoms remain.

Professor Kopelman also stated that E showed some residual symptoms of PTSD but these were less prominent than they were in Belmarsh Prison. With regard to Dr. Phelan’s statement that the symptoms were “ suggestive of PTSD”, Professor Kopelman stated that when in Belmarsh E definitely satisfied the diagnostic criteria but was maybe a little below the cut-off point now. He noted that E had not co-operated with Dr. Phelan and wanted to terminate the interview so that Dr. Phelan was unable to clarify how frequent or intense the memories were. He said that E was a difficult patient and it had taken a long time for E to trust him. He considered that while the depression was now more important he still had residual PTSD but might not be that far apart from Dr. Phelan. He noted that there were still nightmares and flashbacks when he saw E on 20 November 2006.

The Committee on Torture had visited those detained under the 2001 Act, including E, between 14 and 19 March 2004, about the same time as Professor Kopelman’s first consultation with E on 16 March. Professor Kopelman stated that the committee’s statement (paragraph 19) that the health of the detainees had declined as a result of their detention was consistent with his assessment of E at that time. He was asked about the report by eight psychiatrists, including himself about the effect on the mental health of those detained under the 2001 Act which was published at the same time as a statement by the Royal College of Psychiatry. The report states that, while the psychotic symptoms of one detainee released on stringent conditions of house arrest receded on release, the underlying depressive features are more slow to respond, that there is a strong consensus that indefinite detention per se is directly linked to deterioration in mental health, and that concern with regard to their wives’ mental state exacerbates the mental health problems of many detainees. The report refers to one of the wives showing a phobic anxiety state and Professor Kopelman stated this was S. The report referred to literature showing that the depression of detainees gets worse and their symptoms change over time. The statement by the Royal College of Psychiatry endorsed the report’s findings, stating that “on balance the evidence does point to the particular circumstances of this group’s detention contributing significantly to their mental health problems”. It rejected the suggestion that the provision of psychiatric treatment by highly qualified practitioners can in itself prevent a decline in the detainees’ mental health that may come about as a result of their detention.

Asked about Dr. Phelan’s diagnosis of a “moderately severe depressive illness”, Professor Kopelman said that he considered E’s depression severe because of the factors to which he referred, the evolution of the symptoms and the very high Beck score. He stated that difference between Dr Phelan and himself might not be great because Dr. Phelan described many of the symptoms identified by him. In cross-examination he said he had looked at the ICD criteria for the court hearing and considered that E conformed to them. His view was not altered by Dr. Phelan’s report. Dr. Phelan had seen E once for one and a half hours. His first interview and assessment had taken three hours. He agreed that the criteria were not hard and fast and that some might say the depression was moderate while others that it was severe. Professor Kopelman saw the case not in terms of criteria but in the light of the context of E being a person who had been held under detention and was now subject to restriction orders. He also agreed that in layman’s terms the difference between a moderate and severe depression was a matter of degree, but the Beck scale was used all over the world and the ICD criteria distinguished the two. He stated that in severe depression the person would be unmotivated, would not play with his children, would give up activities and would have long-term sleep disturbance. He would not expect a person with a severe depression to organise covert activities. A person with moderate depression might be incapacitated in his ordinary activities and unmotivated and would show some biological effects such as in relation to appetite and sleep.

With regard to Dr. Phelan’s reliance on the fact that E could take his children to school as an indicator that the depression was moderate, Professor Kopelman stated that E took his children to school because he had to. His wife is passive and has a phobic anxiety state and is not going to take them to school. When E was detained his brother took the children to school.

Mr Friedman asked Professor Kopelman about Dr. Phelan’s opinion that, because there did not appear to have been any significant improvement in E’s depression when he was released from Belmarsh, Dr Phelan did not believe that it could be assumed that lifting his control order restrictions would necessarily result in an improvement in his depression. Professor Kopelman said that he was not surprised, given the restrictions of the control order, that there was no dramatic improvement on release beyond the benefit of being able to see his family. The re-detention of ten others in August 2005 played into E’s fears and led him to become very anxious. Professor Kopelman said the fact that E felt trapped by his control order (as he had said to Dr Phelan) was an important factor in his depression. Professor Kopelman said that E had not wanted to leave until recently and he now wanted to leave because of the control order.

Asked about Dr. Phelan’s statement that a dose of 7.5 mg Mirtazapine, the anti-depressant taken by E would be regarded as a sub-therapeutic dose, Professor Kopelman disagreed that 7.5mg was a sub-therapeutic dose. Although the British National Formulatory (the “BNF”) stated that 15mg was the starting point, a number of psychiatrists did what he did. He said the dose could be helpful in relation to sleep, which was important in addressing depression. He reduced E’s dose because E had said that the medication was making him drowsy. He thought that E would not tolerate the medication and so reduced it with the idea of then increasing it very cautiously. He did not consider changing the medication because E does not tolerate medication well and his idea was to gradually increase the dose rather than to chop and change. He thought that at present E was taking 7.5mg one day and 15mg on the next day. Professor Kopelman agreed that he reduced the dose on 26 June 2006 and arranged to see E again in early September. It was also put to him that he reduced the dose after the arrests of other people in 2005 that Professor Kopelman stated had led to deterioration in E’s condition but he considered that did not affect the issue.

Professor Kopelman said that there was no discernible change in E in late September 2006. He was not aware of the Belgian judgment and E had not mentioned it to him. They had discussed E’s wish to know the charges against him. Professor Kopelman said E was angry that charges had been made against him that he and his lawyers were not allowed to know and so he could not answer them. In cross-examination Professor Kopelman was asked whether, if it was demonstrated that E in fact knew the reasons for which he was detained and knew that they were valid and true, how that would affect his reports. He replied that it would not affect his assessment but it would affect the context.

Responding to cross-examination Professor Kopelman said he had no reason to doubt E’s accounts. He was a difficult person to interview because he became agitated and angry but nothing had given Professor Kopelman reason to doubt him. He, however, agreed that if the court came to the conclusion that E’s account is unreliable that would have some bearing on the conclusion.

I turn to Dr. Phelan’s evidence. Dr. Phelan interviewed E at his solicitor’s offices for an hour and a half on 15 November 2006. In the preparation of his report he had access to the medical and non-medical evidence before me, including the reports by Dr. Turner, Professor Kopelman, and Renée Cohen. He records that in Dr. Turner’s first report there was a reference to E being prescribed Anaframil, an anti-depressant drug, in August 2000, although there was no information as to why or for how long it was prescribed.

Dr. Phelan stated that E presented as an angry, resentful and passionate man for much of the interview. He did not have the opportunity personally to ask E many details about his background and obtained that from the other reports and documents relating to his case. Dr. Phelan said that E told Dr. Phelan he could not trust him, and on a number of occasions wanted to terminate the interview.

He records E describing having bad dreams involving the Police, the tag company and images of himself in prison which E said occurred every night, and of having memories of being arrested in Tunisia and being attacked by the Police. Dr. Phelan was unable to clarify how frequent or intense these memories were. With regard to PTSD, it was put to Dr. Phelan in cross-examination that he was unable to clarify how frequent or intense E’s memories were because E didn’t want to talk to him about them and he agreed this may have been a factor.

Dr. Phelan stated that E told him that his depression had got worse over the 18 months since his release from Belmarsh Prison, but that he would be 100% better if his control order was lifted. But E also told him he could see no future for himself in the United Kingdom; could not go back to Tunisia, and felt trapped. In responding to questions in cross-examination, Dr Phelan said it was possible that the gap in psychiatric assessments by Professor Kopelman between 2004 and January 2006 meant that there might have been improvement after the release which subsided, but there was no evidence for that and that E had stated to him that he had got worse since leaving Belmarsh.

Dr. Phelan’s assessment is that E is suffering from a moderately severe depressive illness. He rated his depression as moderate rather than severe because, despite the distressing symptoms he described, E is able to fulfil some social and domestic activities such as taking his children to and from school each day, attending at the mosque, helping to prepare pre-packed lunches and doing some cooking, watching TV and doing some shopping. Dr Phelan considered these were consistent with a lesser degree of depression. In cross-examination, Dr. Phelan agreed that there was evidence that E found some activities difficult. Asked about the desire to work to support his family if there was no control order which E had expressed in his statement for these proceedings, Dr. Phelan said that was not consistent with a severe depression.

In cross-examination Dr. Phelan said he had some knowledge of the procedural background of detention. This was mainly from newspapers and the media and he had not been briefed about the procedural context in relation to E. He had been sent the medical and non-medical evidence before the court. He came across the report of the eight psychiatrists and psychologists and the statement by the Royal College of Physicians in connection with a claim by E for compensation at around the same time as he saw E but could not remember whether this was before or after he saw him. He stated that he had taken the report of the Committee for the Prevention of Torture dated March 2004, into account and thought that he read this just before he met E, but could not remember exactly when.

Dr. Phelan agreed that in considering E’s diagnosis, the indeterminacy of his detention, his perception that the UK authorities were determined to impose measures on him for the foreseeable future, the absence of criminal proceedings, the fact that some evidence relied on by the authorities was not available to him or his lawyers, the public focus on the small group of which he was a member, and the prospect that an agreement would be reached with Tunisia so he would be returned there were relevant. He agreed that E’s perception that the attitude of the authorities to him had not changed, and the effect of the control order on his wife and children were relevant factors in considering his health. He also said that although these factors were all relevant, they were not determinative. Sometimes people with terrible things in life are not depressed and sometimes people whose life situation is objectively ideal are depressed.

Dr. Phelan did not disagree with the contents of the report of the eight experts, but said that it was not a scientific report. He gave two reasons for this. First, while a few papers about the effect on mental health of detention were considered, it was not stated that there had been a systematic review of the literature. Secondly, there was no comparison made between the mental health of those in detention and those not in detention. While it might be a fair assumption that the mental health of those in detention would be worse, the paper did not make a scientific case for this. He was not aware that some in the group had been treated in the community for mental health problems before detention.

With regard to the regime of 7.5 milligrams of Mirtazapine, Dr. Phelan said he had never come across a patient with severe depression treated with this dose or indeed any patient treated with that dose. That was not to say it didn’t occur. He also said it was not usual to reduce the dose of anti-depressant in a case of severe depression.

Dr Phelan said that a one and a half hour interview was sufficient for diagnosis but there would be benefit in a psychiatrist seeing a patient more than once for therapeutic purposes. The average psychiatric assessment in the NHS lasts for an hour and deals with both diagnosis and a treatment plan. He did not consider that seeing E again would lead E to trust him more but accepted that Professor Kopelman would be more trusted because he had been instructed by E’s solicitors. Dr. Phelan commented, however, that Professor Kopelman was both the treating psychiatrist and giving an expert opinion. Asked whether longer was needed for a patient in E’s unique position, Dr. Phelan said that every psychiatric patient was unique but he accepted he had not come across anyone in E’s situation.

In 2004 Professor Kopelman reported on the effect of E’s detention on the family. He reported that S told him the children were always asking about E, insisted on sleeping in the same room as her and that I was afraid of adults apart from the family and wetted his bed at night. Professor Kopelman considered that S showed “features of quite severe clinical depression” and “features of a phobic anxiety state” but made no diagnosis and did not recommend treatment. He stated the symptoms were directly related to E’s continuing detention. In his second report, based on a consultation on 16 October 2006 and dated 23 October 2006, Professor Kopelman states that S is less depressed than when he saw her in 2004 but has considerable anxieties that E or herself will suddenly be arrested and these keep her awake at night. Her score on the Beck scale indicated “at most a mild or moderate degree of depression”. With regard to the children, Professor Kopelman states S told him that I will not change his clothes in his room because of the monitor and still insists on sleeping in the parental bed but no longer wets the bed. Professor Kopelman noted that I in particular has shown behavioural disturbances and the children, including I, will not sleep outside the parental bedrooms and concludes that the long-term effects of these restrictions upon the children’s psychological well-being and attitudes are likely to be devastating.

The only other medical evidence before me about S’s health is a copy of her medical records at St Mary’s Hospital. These were sent to E’s Control Order Contact Officer on 21 November 2005, in order to get permission for E to accompany S when she went into labour and had to be admitted to hospital for the birth of their fourth child. Under past history it is stated that S has no history of inter alia psychiatric problems. This document may reflect the fact that S was receiving no treatment at that time and on its own it is of limited assistance to me. It has, however, to be considered together with what Professor Kopelman states in his reports and the fact that S has never been referred for treatment for mental health problems.

The evidence can be summed up as follows:- 1. It is not disputed that E suffers from depression but Professor Kopelman’s diagnosis is that E is severely depressed whereas Dr Phelan’s diagnosis is of a moderately severe depressive illness. Professor Kopelman has seen E frequently and has more experience of the mental health of detainees. He relies on E’s high score on the Beck scale. While recognising his undoubted expertise, a number of factors have led me to conclude that there are difficulties in accepting his diagnosis.

4. Professor Kopelman’s reports in May 2004 and October 2006 and S’s ante-natal notes from 2005 provide no support for a diagnosis that S is clinically depressed. The ante-natal notes state that she had no history of psychiatric problems. She has never been referred for treatment for mental health problems.

I have set out my conclusions on the effect on the children in paragraph 155 above at 7.

On behalf of E, Mr Starmer QC submitted that provisions in the PTA empowering the making of control orders violate the Convention requirement of ‘legal certainty’. This requirement is an element of the need for interference with the rights in Articles 5, 10 and 11, to be “prescribed by law” and interference with the right in Article 8 to be “in accordance with law”. He relied on R (Gillan) v. Commissioner of the Metropolitan Police [2006] UKHL 12, and in particular on the following passages from Lord Bingham’s speech:

“[T]he law must be accessible, foreseeable and compatible with the rule of law, giving an adequate indication of the circumstances in which a power may be exercised and thereby enabling members of the public to regulate their conduct and foresee the consequences of their actions; that the scope of any discretion conferred on the executive, which may not be unfettered, must be defined with such precision, appropriate to the subject matter, as to make clear the conditions in which a power may be exercised; and that there must be legal safeguards against abuse” (paragraph [32]), and

“The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality …” (paragraph [34])

There are two limbs to his submissions. The first is that the activity targeted in the PTA is very wide and ill-defined. The circumstances in which a control order can be imposed are vague and unforeseeable because of the breadth of the definitions in sections 1(9) and 15(1) of “terrorism-related activity” and “terrorist”, the latter which is given the same broad meaning as in the Terrorism Act 2000. The second limb is that the obligations that may be imposed pursuant to section 1(3) are, on their face, unlimited, and include not only obligations for the purpose of preventing terrorism-related activity, but also obligations for purposes connected with terrorism-related activity. As a result, individuals cannot reasonably foresee the consequences of their actions. Thirdly, it is argued that the legal safeguards against abuse have been removed by section 2(9) of the PTA and paragraph 8 of the Schedule to the Act.

With regard to the inadequacy of legal safeguards, it is argued that, read literally, section 2(9) permits an obligation to be imposed to prevent or restrict terrorism-related activity in respect of which the Secretary of State does not even have reasonable grounds for suspicion. This is because the sub-section provides that “[i]t shall be immaterial, for the purposes of determining what obligations may be imposed by a control order …, whether the involvement in terrorism-related activity to be prevented or restricted by the obligations is connected with matters to which the Secretary of State’s grounds for suspicion relate”. Paragraph 8 of the Schedule to the PTA provides that a decision by the court to quash a control order “does not prevent the Secretary of State from exercising any power of his to make a new control order to the same or similar effect or from relying, in whole or in part, on the same matters for the purpose of making that new order”. It is argued that this enables the Secretary of State to ignore a decision of the court, and thus displaces the ordinary role of the courts.

For the reasons set out below, I have concluded that Mr Tam QC’s submission that there is no well-founded complaint of ‘uncertainty’ here is well-founded. Notwithstanding the extraordinary scope of the powers conferred by the PTA on government, its provisions do not create a regime which is arbitrary and, in Lord Bingham’s words, “the antithesis of legality” and thus do not violate the Convention requirement of ‘legal certainty’.

I first observe that in this case the issue of certainty only arises in the context of Article 8. This is because, if a control order amounts to a deprivation of liberty within Article 5, the Secretary of State has no power to make it: see JJ and others [2006] EWCA Civ 1623.

Secondly, statute law and common law principles are often framed in broad terms. It is well established that the width of a provision or of a principle is not in itself a cause of uncertainty. Thus, in Application 64848/01 Kuijper v The Netherlands (2005) 21 EHRR 227 the Strasbourg Court stated that:-

"…[T]he Court considers that it is a logical consequence of the principle that laws must be of general application that the wording of statutory provisions is not always precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. However clearly drafted a legal provision may be, its application in practice involves an inevitable element of judicial interpretation and assessment of facts, which do not by itself make a legal provision unforeseeable in its application. On many occasions and in very different spheres the Court has held that it is in the first place for the national authorities, and in particular the courts, to construe and apply the domestic law (see, for example, Winterwerp v the Netherlands [24 October 1979] and AUI v Spain, [application 56673/00]; and Slivenko v Latvia [application 48321/99].”

See also Sunday Times v United Kingdom (1979) 2 EHRR 245 at paragraph [49]. Despite the width of the powers conferred on the police in the Terrorism Act 2000 to stop and search, powers described by the Divisional Court in R (Gillan) v. Commissioner of the Metropolitan Police as ‘extraordinary’ and 'sweeping and far beyond anything ever permitted by common law powers' and in similar terms by the Court of Appeal, they did not violate the principle of legality. Lord Bingham stated:

“The principle of legality has no application in this context, since even if these sections are accepted as infringing a fundamental human right, itself a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character.” (paragraph [15])

The provisions in the PTA as to the circumstances in which a control order may be imposed are both accessible and, notwithstanding their width, are as detailed, specific and unambiguous as the provisions considered in that case.

Thirdly, the obligations that may be imposed pursuant to the PTA are not unlimited. As the decision in JJ and others [2006] EWCA Civ. 1141 shows, the Secretary of State has no power to impose conditions which deprive a person of his liberty in the sense that that term is used in Article 5 of the Convention. Moreover, the power conferred by section 1(3) only confers power to impose such obligations as the Secretary of State or Court “considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity”. The exercise of such power is susceptible to control by the court in accordance with the principles of judicial review as they apply in this context.

As to control by the court, it is not arguable that the legal safeguards against abuse have been removed by the PTA. Section 3(11) provides that the court must apply the principles applicable on an application for judicial review, and the decision of the Court of Appeal in MB [2006] EWCA Civ. 1140 has clarified what that means in this context. The Court stated that in considering whether it is necessary to impose any particular obligation on an individual the court will apply the customary test of proportionality. Notwithstanding a degree of deference to the decisions taken by the Secretary of State in a matter relating to state security, the court is required to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order: see [63-65] and see also [44]. There is no such deference in relation to whether the Secretary of State has reasonable grounds for suspecting that a person is or has been involved in terrorism-related activity: see paragraph 35 and 82 above.

The fact that section 2(9) enables the Secretary of State to make a control order prohibiting a person from, for example, entering railway stations, ports and airports where the reasonable suspicion of involvement is only in relation to terrorism-related activity concerning airports, does not make the exercise of power arbitrary or capricious. The terms of section 2(9), when read with sections 1(3) and 2(1), show that the aim of every obligation imposed by the control order must be the prevention or restriction of terrorism-related activity. It is also apparent from the preamble to the PTA that this is its aim. Where the obligation imposed has no connection whatsoever with what the controlled person might do, or where the Secretary of State has taken into account objectives other than the prevention or restriction of terrorism-related activity, section 3(11) of the PTA enables the Court to quash the obligation or give directions for its modification.

Finally, with regard to paragraph 8 of the Schedule, it is clear that there may be circumstances where the reason for quashing a control order does not necessarily preclude a new order in the same terms. One example of such circumstances is where the flaw is a procedural one. Mr Tam correctly submitted that empowering a public authority to act in this way in an appropriate case reflects the ordinary position in public law decision-making following the quashing of an impugned decision. So, for example, in Attorney General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 639 it was stated that the quashing of an order to remove an illegal immigrant on the ground that he had not been given an opportunity to make representations is “of course entirely without prejudice to the making of a fresh removal order … after a fair inquiry has been held…”. Where the reason for quashing an order is not purely procedural, and, as indicated in JJ and others [2006] EWCA Civ. 1141 at [27], the expectation may be that the decision-maker will have to come up with a different package, this is not inevitable. That this is so is illustrated by the ultimate outcome in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, noted in Wade & Forsyth, Administrative Law 9^th ed 358. See also R v. Somerset County Council, ex p. Fewings [1995] 1 WLR 1037, 1046 (failure to take account of prescribed objects); R (Ali) v Secretary of State for the Home Department [2003] EWHC 899 (Admin) at [31] (insufficiency of evidence). To the extent that a literal reading of paragraph 8 would permit the Secretary of State to make a new order in the same terms when this would be inconsistent with the decision of the court, the interpretative direction in section 3 of the Human Rights Act read together with section 11 of the PTA enables the court to read down the words of paragraph 8 so as to preclude this.

The second issue is whether the terms of E’s control order deprive him of his right to liberty under Article 5 of the Convention. Before turning to consider this, it is appropriate to make four preliminary observations. The first is that Article 5 of the Convention is of fundamental importance “for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities”: see for example Brogan v United Kingdom (1989 11 EHRR 117 at [58] and Kurt v Turkey (1998) 27 EHRR 373 at [122]. In A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 62 at [100], Lord Hope said “[i]t is impossible ever to overstate the importance of the right to liberty in a democracy”. In Kurt v Turkey the Strasbourg Court stated (paragraph 122) that “any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness”.

Secondly, it is for the courts and not the executive to decide whether restrictions such as those in the control order imposed on E in fact amount to a deprivation of liberty: see A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 62 at [222], per Baroness Hale and JJ and others [2006] EWHC 1623 (Admin) at [79] and [2006] EWCA Civ. 1141.

Thirdly, as was common ground in JJ and others [2006] EWCA Civ. 1141 at [6], the Convention concept of “deprivation of liberty” is autonomous so that limited assistance is to be derived from other conceptions of liberty, such as that derived from the principles governing false imprisonment at common law.

Fourthly, the jurisdiction of the Court to consider issues relating to Article 5 in relation to control orders is derived from sections 3 (10) and 10(5) of the PTA read together with section 11(2). Section 11(2) makes the court the appropriate tribunal for section 7 of the Human Rights Act 1998. Sections 3(10) and 10(5) provide that the function of the court is to determine whether specified decisions of the Secretary of State concerning the making of a control order or its renewal or modification are flawed. Any decision by the Secretary of State to impose obligations which are found to be incompatible with an individual’s right to liberty under Article 5 would, by definition be flawed because, under the PTA such obligations may only be imposed by the court under Sections 1 (2) (b) and 4 of the PTA.

It is necessary to consider the judgments in JJ & others [2006] EWHC 1623 (Admin), [2006] EWCA Civ. 1141 in some detail. The decision concerned control orders imposed on six single men of Iraqi Kurdish origin. The obligations were an 18 hour curfew and obligations similar to those imposed on E, viz tagging, prohibiting unauthorised prearranged meetings or unapproved visitors to the residence, and restricting the controlled persons to one fixed telephone line. There were, however, also geographic limits imposed which varied in size from between 12.7 to 62 square miles. These limits had the effect of, for example, limiting the mosques which the controlled persons could attend, although there was at least one mosque in each area. The Court of Appeal stated (at [23]) that the control orders fell “clearly on the wrong side of the dividing line” between a restriction upon liberty and a deprivation of liberty: see also [2006] EWHC 1623 (Admin) at [73].

It is common ground that the summary of the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Article 5 given by Keene LJ in Secretary of State for the Home Department v Mental Health Review Tribunal and PH [2002] EWCA Civ. 1868 at 14-16 is a useful starting point. His Lordship stated five propositions:

“First, a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty.

Secondly, the distinction is one merely of degree or intensity of restrictions not of nature or substance.

Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question.

Fourthly, account must be taken of the cumulative effect of the various restrictions.

Fifthly, the purpose of any measure of restriction is a relevant consideration. If the measures are taken principally in the interests of the individuals who are being restricted, they may well be regarded as not amounting to a deprivation of liberty….”

It is important to keep in mind the basic distinction in the first of Keene LJ’s propositions: there are coercive measures which may substantially restrict the choice or freedom of an individual, but do not deprive that individual of liberty within the meaning of Article 5. One might seek to determine on which side of the line a measure falls by assessing what has been taken away, or by assessing what is left. Understandably, the submissions on behalf of E have focused on what has been taken away while those on behalf of the Secretary of State have focused on what is left. The Strasbourg jurisprudence considered in paragraphs 201-208 below, however, does neither. It emphasises that the court considering the matter must start by considering the concrete or actual situation of the individual concerned and take account of the type of restriction, its duration, the effects and the manner of implementation of the measure (the restriction(s)) in question.

The task of the court is to look at each of these factors, but starting with the physical restriction confining E to his flat for twelve hours a day, and then to consider the cumulative effect of the restrictions and their cumulative degree of intensity. It was common ground that this is not a mechanical exercise. At this final stage of the assessment, in order to determine whether the restrictions go beyond merely restricting the individual’s liberty of movement to depriving that individual of his liberty, the court has to have an idea of what “liberty” is. Mr Starmer submitted that the correct approach is that of Sullivan J in JJ and others [2006] EWHC 1621 (Admin). For Sullivan J, at the core of “liberty” is the freedom of a person to lead his life as he chooses within the law, which he stated “for convenience may be described as a ‘normal’ life”. His Lordship’s concern was, accordingly, with the extent to which such freedom has been removed, and with the degree of state control to which an individual is subject. I shall return to this after considering the Strasbourg jurisprudence.

Guzzardi v Italy (1980) 3 EHRR 333 has been described by Lord Bingham to be “[p]erhaps the clearest exposition of principle by the Strasbourg court” (R (Gillan) v. Commissioner of Police [2006] UKHL 12, 2 AC 307 at [24]) and by the Court of Appeal in JJ and others [2006] EWCA Civ 1141 at [6] as “the best guidance in relation to the nature of 'deprivation of liberty'” . In paragraphs 92 and 93 of its judgment in Guzzardi v Italy the Strasbourg court set out the principles summarised by Keene LJ in PH’s case. The court stated that it recognized that special supervision accompanied by an order for compulsory residence in a specified district does not, of itself come within the scope of Article 5 (paragraph 94) but also recognized that deprivation of liberty may take numerous forms other than classic detention in prison or strict arrest and that the Convention requirement is “to be interpreted in the light of the notions currently prevailing in democratic states” (paragraph 95). Guzzardi’s case concerned a period of just under 17 months internal exile on the island of Asinara off the coast of Sardinia.

Apart from being required to live in a specified area, the terms of Guzzardi’s special supervision included; (a) reporting to the supervisory authorities twice a day and whenever called upon to do so, (b) not to associate with persons convicted of criminal offences or subjected to preventative or security measures, (c) a curfew between 10pm and 7am, not to frequent bars or nightclubs and not to take part in public meetings, and (d) to inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call. The court held that Guzzardi had been deprived of his liberty while on Asinara. It is important to note that the requirement that he live in a specified area together with the other requirements did not, in themselves suffice to deprive him of his liberty. It is possible to say this because, following the period on the Asinara, he was moved off it to another district, Force, for the remainder of his period of compulsory residence and (see paragraph 94 of the judgment) the Commission rejected as inadmissible his application in respect of that compulsory residence. Accordingly, it was the fact that the order for compulsory residence in a specified district was implemented by requiring residence on the island of Asinara that was of importance.

The “concrete situation” taken into account in the judgment of the court (see paragraph 95) included the following factors. First, Guzzardi could only move freely in an area of 2.5 square kilometres, a tiny fraction of Asinara, 90% of which was occupied by a prison. Secondly, he was housed in a hamlet many of the buildings of which were in a state of disrepair. He lived there principally in the company of other persons subjected to the same regime and Policemen. The permanent population of Asinara (approximately 200 people) resided almost entirely in a location which Guzzardi could not visit, and they appeared to have made little use of their right to go to the place in which he resided. Consequently, there were few opportunities for social contacts available to him other than with his near family, other people subjected to the same regime, and the supervisory staff. The court stated:-

“It is admittedly not possible to speak of ‘deprivation of liberty’ on the strength of any one of these factors taken individually, but cumulatively and in combination they certainly raise an issue of categorization from the viewpoint of Article 5. In certain respects the treatment complained of resembles detention in an ‘open prison’ or committal to a disciplinary unit” (paragraph 95).

It was the combination of these factors that led the court to conclude that “on balance” the period Guzzardi spent on the island involved deprivation of liberty.

The statement of the facts preceding the judgment gives further information about conditions in the part of Asinara where Guzzardi was permitted to be. There were only two flats suitable for accommodating a family and they were occupied by the families in turn for periods of between 30 and 60 days: paragraph 15. Otherwise, while his family was permitted to be there, they were all accommodated in a single room of 4 metres by 4 metres: paragraph 34.

My attention was drawn to four other decisions of the Strasbourg Commission or Court; Ciancimino v Italy (1991) 70 D & R 103, Raimondo v Italy (1994) 18 EHRR 237, Labita v Italy (6 April 2000) and Trijonis v Lithuania (17 March 2005) which were considered by Sullivan J in JJ and others. Sullivan J (at [27]) described them as cases at one end of the spectrum in which “either the Commission or the Court has concluded that a curfew, requiring someone to be inside a house (sometimes his own home, sometimes new accommodation provided for, or chosen by, him) during the night hours, does not amount to a deprivation of liberty…… but is a mere restriction on the freedom of movement….”.

In Ciancimino v Italy the Strasbourg Commission held that a complaint that requirements to live in a commune with a population of 1,500 people, to be subjected to a curfew between 8 p.m. and 7 a.m., to notify the authorities before leaving home, and to report to the Police daily was a deprivation of liberty, was manifestly ill-founded. It rejected Mr Ciancimino’s assertion that he was not allowed to leave his home during the day without authorisation, and stated (at 122) that his living conditions were the same as the rest of the population of the commune. This must be understood as referring to his living conditions apart from the curfew. The Commission considered that checks by the authorities of his presence at home every day and sometimes at odd hours of the night had not been proved to exceed the limits of what was reasonable, bearing in mind the nature and purpose of the preventive measure. This was the prevention of crime and in particular by persons suspected of belonging to the mafia.

The longest curfew which has been held to be a restriction of movement but not a deprivation of liberty is that in the case of Trijonis where the applicant was obliged to stay at home from 7pm until 7am during week days, but obliged to stay at home for the whole of the week-end. The Strasbourg Court held that the application that this constituted a breach of Article 5 was inadmissible. The other cases involved curfews of between 10 and 12 hours a day. In JJ and others Sullivan J stated (at [71]):

“In the ‘curfew’ cases cited above, the applicants were subject to a number of restrictions during the time whilst they were allowed outside their homes. For example, in Labita the applicant was prohibited from associating with criminals, from keeping and carrying weapons, and from going to bars and attending public meetings. However, in all of those cases the applicants were able, if they so wished, to go out and do a normal day's work (on weekdays only in the case of Trijonis, although he appears to have been subject to no other restrictions whilst out of curfew hours on weekdays), and in no case were they subjected to a prohibition equivalent to [the prohibition of prearranged meetings without prior authority]. The freedom to meet any person of one's choice by prior arrangement is a significant part of any individual's normal social life whilst outside his home, as is the freedom for those who have a religious belief to attend whatever church, temple, mosque or synagogue they choose.”

Mr Tam submitted that outside the curfew period, when out of his home, Trijonis was only permitted to be at his work place. He relied on the statement at page 2 of the judgment stating that:

“… he was permitted to be at his work place during week-days, and obliged to stay at home from 7 p.m. until 7 a.m. during week-days and the whole day during week-ends.”

Sullivan J did not read the judgment in Trijonis’s case in that way. Nor do I. At page 5 it is stated that the obligation was for Trijonis to remain at home at weekends and from 7 p.m. until 7 a.m. during weekdays and that “the possibility [was] given for him to be at work for the rest of the time”. At page 7 it is stated that the period during which he was subject to the curfew “did not amount to a deprivation of liberty, the applicant having been allowed to spend time at work as well as at home during that period”. The Court does not state that Trijonis was only permitted to be at his place of work outside the curfew hours, merely that this was a possibility open to him. Moreover, while cumulatively the hours of curfew were extensive, Trijonis does not appear to have been subjected to further restrictions when inside his house.

I turn to the judgments in JJ and others. As I have stated, the starting point is the physical restriction confining E to his residence for 12 hours a day which is at the heart of the regime. While such a restriction is, as the Commission observed in Ciancimino v Italy (at p. 124), a major restriction on liberty of movement, the Strasbourg authorities show that in itself it does not constitute a deprivation of liberty. The question is whether the other restrictions and their impact on E (which the Court in JJ and others said ([19]) it was relevant to consider) mean that cumulatively the restrictions do cross the boundary.

I have noted Sullivan J’s references to the freedom of a person “to lead a life of his choice”, and to a ‘normal’ life”. In paragraph [54] of his judgment Sullivan J stated:-

“The extent to which the individual is subject to supervision, the extent to which he can make social contacts, the extent to which he has access to public facilities, and whether he is free to make telephone calls or otherwise to communicate with whomsoever he wishes, are all aspects of a broader question: to what extent is the individual subject to the obligations able to lead a life of his choice, which for convenience may be described as a "normal" life? If one asks the question ‘deprived of liberty to do what?’, the answer must be: deprived of the freedom to lead one's life as one chooses (within the law). That freedom is the antithesis of a life which is subject to the kinds of control to which a prisoner, whose ‘liberty to do anything is governed by the prison regime’ is subject’: see per Lord Jauncey at page 176H of R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58.”

Sullivan J’s approach was approved by the Court of Appeal ([2006] EWCA Civ. 1141 at [7-8 and 12-14]) albeit with the qualification (at [13]) that “[i]f applied without starting with the ‘concrete situation’ of physical confinement, we can see that this passage might not be consistent with the Strasbourg concept of deprivation of liberty, but the judge did not so apply it”. Sullivan J realised (see [57]) “that the starting point must be the ‘concrete situation’ of each respondent” and that, although in determining the preliminary issue before him, it had not been possible to conduct the sort of detailed examination of the facts as the court in Guzzardi had done, he was able to take into account the brief statements of facts in each case agreed by the parties.

Sullivan J considered (at [47-48]) that there was at least a strong probability that the control orders would be renewed for further periods of 12 months at a time. He stated that in reality the concrete situation was that the controlled persons faced the prospect of being subject to the obligations imposed by the orders for an indefinite period. Although the Court of Appeal noted that Sullivan J’s conclusion was based, in part, on a misconception that the Secretary of State was not bound to keep under review whether there are reasonable grounds for suspecting that each Controlled Person had been involved in terrorism-related activity, it considered that his appraisal of the likely duration of the orders was realistic: see [2006] EWCA Civ 1141 at [22]. (The “misconception” reflected his earlier decision in MB [2006] EWHC 1000 (Admin) which was overruled by the Court of Appeal [2006] EWCA Civ 1140.)

In reaching his conclusion that there had been a deprivation of liberty, Sullivan J took account of the following factors:

Sullivan J concluded that he was left in no doubt that the type, duration, effects and manner of implementation of the obligations in the Control Orders had the cumulative effect of depriving the controlled persons of their liberty in breach of Article 5. He considered (at [73-74]) that their “concrete situation” was the antithesis of liberty and more akin to detention in an open prison where the prisoner is likely to be released from prison regularly in order to work, take town visits and temporary release on resettlement or facility licence. He also stated that the restrictions in addition to the curfew meant that the controlled persons’ liberty to lead a normal life in their residences during the 18 hour curfew period was so curtailed as to be non-existent for all practical purposes. However, (at [77]) he stated that he would have considered that house arrest for 18 hours each day was, even if it was the only obligation apart from those, such as reporting and tagging imposed to ensure that it was strictly observed, a deprivation of liberty.

The Court of Appeal stated (at [17]) that it was correct to consider the effects of restrictions that took effect within the residence in the context of the restrictions that applied when they were permitted to leave their residences. It considered (at [19]) that where restrictions such as on the ability to admit visitors, to communicate by mobile telephone, and to meet any person of one’s choosing are features of a regime at the heart of which is physical confinement, they are relevant in considering whether the restrictions cross the boundary between restriction on the freedom of movement and deprivation of liberty.

Mr Starmer submitted that, given a starting point which does not depend on what the court in Guzzardi referred to as “classic detention in prison”, the essence of deprivation of liberty was, as Sullivan J held in JJ and others, the degree to which an individual was deprived of the freedom to lead his life as he chooses within the law.

Mr Starmer recognised that there are differences between the position of the controlled persons in JJ and others and that of E, viz. the curfew was 12 hours and not 18 hours, E lived with his family and in an area in which other members of the extended family lived, and there was no geographical restriction on him outside the curfew hours. Unlike some of the respondents in JJ and others, E is not prohibited from associating with named individuals, and the absence of a geographical limit means there is no restriction as to which mosque he attends. He has not been required to hand in his passport and other travel documents or prohibited from entering air or other ports without prior approval. Notwithstanding these differences, Mr Starmer submitted that the overall intensity of the obligations on E, taken together with the curfew meant that he has been deprived of his liberty. He provided a schedule which compared the obligations considered in the Strasbourg cases with those in JJ and others and in E’s control order. Mr Starmer also submitted that the control order should not be considered as of only 12 months duration but should be considered indeterminate.

Unlike the position in JJ and others, in E’s case there is evidence of the impact of the order on him and his family and evidence of his mental health. Mr Starmer invited me to conclude that the obligations in the order in themselves deprived E of his liberty, but that, if I considered that they did not, in E’s particular situation and state of health, and in the light of the way the control order was implemented, it did deprive him of his liberty.

Mr Starmer’s submissions on impact fell into four categories. The first concerned the history of E’s detention under the 2001 Act for three and a half years. There is evidence of deterioration in his mental health reported on by Dr. Turner in 2003 comparing his assessment with his earlier assessment in January 2001 and from Professor Kopelman’s 2004 report. Mr Starmer also relied on the fact that at the time the Secretary of State imposed the Control Order, he had available E’s medical records from Belmarsh Prison, Professor Kopelman’s reports, and the reports of the 8 psychiatrists and psychologists and the European Committee for the Prevention of Torture but did not make an informed (and medically based) assessment about the likely impact of the order upon E and his family. He submitted this and E’s history is relevant for the purposes of Article 5 as well as Article 8. Although he accepted there is no Strasbourg case in which purely subjective effects from a restriction of liberty have been critical in the determination whether the restriction amounts to a deprivation, he submitted E’s health is part of his concrete situation which has to be taken into account in assessing in whether he has been deprived of his liberty.

Mr Starmer also relied on the way in which the control order against E has been managed by the Home Office. He submits that the Secretary of State has been purely reactive to psychiatric and social issues raised by E and his representatives. He pointed out that Mr Jones, the responsible civil servant for the team working on implementation of the system has no medical qualifications but considered that E’s assessments did not raise a serious enough issue to warrant any action on the part of the Secretary of State. Mr Starmer also relied on delays in responding to critical applications in particular requests for visitors to be authorised, a variation in relation to the garden, which was granted only after the lodging of an appeal under section 10 of the PTA, and enabling BT promptly to enter the residence in order to mend the telephone line.

Mr Starmer invited me not to make any adverse inferences from E’s failure to give evidence himself. He relies on SIAC’s generic judgment in Ajouaou, A and others v Secretary of State for the Home Department (SIAC, 29 October 2003 at [117]). The Applicant has accepted this in relation to the national security issues but not in relation to evidence of impact. Mr Starmer has argued that since the Secretary of State’s amended third statement refers to closed material about E’s activities while under the Control Order and since Professor Kopelman was cross-examined as to his diagnosis if it were proved that E had engaged in covert activities while under the order, the Secretary of State has not chosen to separate the issue of national security and the issue of impact. There is force in his submission that to require E to give evidence of impact without knowing what the Secretary of State’s allegations are about his activities while subject to the control order because of a risk of adverse inferences would be unfair. The question, however, is the status of what is contained in E’s statement. For the reasons I have given (paragraph 131 above) I concluded that, although no adverse inference should be drawn from E’s failure to give evidence about impact, I am not able to give any weight to those parts of his statement which differ from Mr Jones’s evidence or refer to matters on which Mr Jones was not cross-examined: see S v Secretary of State for the Home Department, SIAC judgment 27 July 2004, paragraphs 27-31.

On behalf of the Secretary of State, Mr Tam QC and Miss Giovannetti submitted that neither the obligations imposed nor E’s personal circumstances are the same as in the case of JJ and others. They submitted that there is nothing in the Strasbourg case law that supports a conclusion that an obligation where the primary restriction is a curfew of 12 hours a day amounts to a deprivation of liberty rather than a restriction on freedom of movement. They invited me to conclude that Guzzardi was a borderline case explicable only because of the particular conditions on Asinara because the same restrictions in Force did not give rise to an admissible claim before the Strasbourg court. It was submitted that at the heart of the court’s concerns in Guzzardi was the fact that there were only very few opportunities for social contacts available to Guzzardi other than with his family, others in the same position as him and his supervisors. Particular reliance was placed by Mr Tam on the case of Trijonis discussed in paragraphs 208-209 above.

The Applicant also argued that the distinctions between the position of the respondents in the JJ and others, which I set out in paragraph 218 above and E’s position are significant. E, unlike those controlled persons, is able to reside in his family home in NW10, an area which is familiar to him, in which members of his extended family live and he has other ties. Reliance is placed on his freedom to come and go from the premises for 12 hours a day, the absence of any geographical restriction placed upon him other than to notify the Secretary of State if he intends to leave the UK, and the freedom to mingle with the general population and to enjoy a large degree of ordinary social contact in public spaces, in mosques, in shops or at entertainment or sporting facilities.

The Applicant invited the court to assess the effects of the control order by reference to what are its necessary or natural consequences and not by reference to misunderstandings by E or S of the content of those obligations or from choices exercised by them. Moreover, in considering whether restrictive conditions amount to a deprivation of liberty, Mr Tam submitted it is the objective effect of those conditions rather than the reaction of the person subject to the obligations that determines the question. Accordingly, he submitted that the court should not consider the psychiatric evidence about E’s mental state or that of S as relevant to whether the restrictions cumulatively amount to a deprivation of E’s liberty for the purposes of Article 5.

The restrictions on E’s liberty are undoubtedly very significant. The question is whether, notwithstanding the fact that a 12 hour curfew has been treated in the Strasbourg jurisprudence as a “mere” restriction of movement, in E’s case, the cumulative effect of the curfew and the other restrictions imposed on him means that the control order deprives E of his liberty.

I deal first with the evidence about E’s particular situation and his mental health. Mr Tam and Miss Giovennetti submitted that the requirement in Guzzardi’s case that the starting point must be the person’s ‘concrete situation’ refers to the objective consequences of restrictions rather than the effect on a particular individual. One of the grounds upon which it was said that the position of the controlled persons in JJ and others differed, however, was that they were single men living outside their area with less opportunity than E for social contact with family or others. The question is why is it right to take account of the married or other status of the person subjected to restrictions and his opportunities for social interaction but not his mental health?

This question is not altogether easy to answer. The factors considered in the judgment in Guzzardi’s case are objective factors: the size of the area on Asinara available to him, the facilities available in that area, the nature of the building in which he was accommodated, who else lived in the area, the opportunities for social contact, and the intensity of the supervision: see paragraph 95 of the judgment. The nature of the accommodation available for families is not referred to in the judgment, but in the statement of facts. Counsel’s researches have not identified any case in which the Strasbourg court has taken into account the subjective consequences of the restrictions on a particular individual as opposed to any individual in his position. Mr Starmer referred to mental health cases in which, notwithstanding the consent of the individual, it has been held that there has been a deprivation of liberty but did not press the analogy. That scenario does not, however, assist Mr Starmer because what is being considered in those cases is the objective position of a person who is either legally incapable of giving consent or who, although not wholly incapable, is over-compliant.

Moreover, as Mr Tam argued, if one takes into account the subjective effect on the individual subject to the restrictions, identical restrictions might not have identical effects in Article 5 terms. This would not sit comfortably with the idea of an autonomous concept of ‘liberty’ and the need for certainty. Although not explicitly discussed, there is no support for taking account of the subjective effect on the individual in the decision of Court of Appeal in JJ and others. Mr Sales, on behalf of the Secretary of State ([2006] EWCA Civ 1141 at [14]) had criticised Sullivan J’s reliance on the concept of ‘normal life’ as meaning that “whether measures amounted to a 'deprivation of liberty' might depend upon whether they were aimed at a hermit or a long distance runner”; i.e. their subjective effect. The Court of Appeal rejected this on the ground that it was not what Sullivan J had suggested. He was considering the extent to which restrictions would prevent an individual from pursuing the life of his choice, whatever that choice might be. There is no suggestion in the judgment of the Court that an approach under which whether measures amounted to a 'deprivation of liberty' might depend upon their subjective effect on a particular individual might be a proper approach. Indeed, the fact that the Court stated that this was not the consequence of Sullivan J’s approach indicates that it considered it not to be a proper approach.

Notwithstanding these considerations, I have concluded that the obligation to start with what Keene LJ described as the “concrete or actual situation of the individual” does mean that some, albeit limited, account should be taken of his mental condition and I do so. Mr Starmer accepted that it is not a critical factor and this must be correct. While Guzzardi’s case shows that there can be a deprivation of liberty without classic detention in prison by the Police, or by medical authorities, it is important not to lose sight of the fact that, as was stated in Engel v Netherlands (1976) 1 EHRR 647 at [58] Article 5 is concerned with liberty “in its classical sense, that is the physical liberty of the person”: see also Guzzardi v Italy at [92] and Amur v France (1992) 22 EHRR 533 at [42]. As Clayton and Tomlinson have observed, “physical liberty under the Convention means simply the freedom of physical movement of persons from one place to another”: The Law of Human Rights 479. In some, perhaps many, cases the subjective effect of a restriction as a result of the individual’s mental condition will not affect that individual’s freedom of physical movement. The reason I have concluded that the mental condition of a person cannot entirely be disregarded is that the Strasbourg Court in Guzzardi and the courts in JJ and others attached importance to the degree of social isolation resulting from restrictions. A person’s mental health may well affect the extent to which he is in fact socially isolated as a result of the restrictions. Similarly, delays by the Applicant in responding to requests for visitors are of some relevance in assessing the extent of E’s social isolation.

I accept, in the light of the psychiatric evidence, that E’s depression and history have contributed to the impact the control order restrictions have had on his social network, and in this sense to the extent to which he is socially isolated. However, even if I had accepted Professor Kopelman’s diagnosis as to the severity of his depression, and notwithstanding the difficulties E describes in functioning and dealing with matters, it is evident that he does function and does not altogether lack a social network. He goes to the mosque, he takes his children to school and picks them up, he goes shopping and he sees family members who live in the area. Five family members living in the same area have been approved as visitors. In these circumstances only very limited weight can be given to his mental condition in the context of Article 5.

I next deal with the duration of the restrictions. It has been stated that the period is relevant but not definitive and that the objective is more important: Starmer, European Human Rights Law, 96. The Strasbourg cases to which I have referred show that a person can be controlled for periods longer than that to which E has been subject to a control order without being held to be deprived of liberty. Thus, in Labita’s case the period was three years, and in Ciancimino’s case it was four years and three months. In Guzzardi’s case, while it was only the seventeen months on Asinara that constituted a deprivation of liberty, the total period of the special supervision was three years.

Mr Starmer submitted that, taking account of the period of detention under the 2001 Act, and in the light of the evidence of witness J that the Security Service assesses that E is likely to re-engage with his associates, some of whom are due for release in 2007, and the last of whom is due for release in 2011, I should regard the duration as indefinite. Mr Tam argued that in none of the Strasbourg cases did the Court or the Commission consider the possibility of renewal and that to regard the duration as indefinite is to assume that the Secretary of State does not act in accordance with the PTA when considering renewal. The Secretary of State is bound to keep under review whether there are reasonable grounds for concluding (a) that E is or has been involved in terrorism-related activity, and (b) control order obligations are necessary for preventing or restricting such involvement. While this is true, Mr Tam’s invitation that I consider the duration of the order to be the twelve months for which the order was initially imposed and then (it was not clear whether as a separate exercise) the twelve months for which it has been renewed, does not reflect the requirement that the court consider the “concrete situation” of the individual. E was detained in December 2001 under the 2001 Act and has been subject to a control order since his release. His concrete situation is that of a person who has been subjected to preventative measures for five years. I of course proceed on the basis that the Secretary of State will act properly when he comes to consider the further renewal of E’s order. Notwithstanding this, in view of the evidence given, there is in my judgment a strong probability that the order will be renewed in 2007, and, unless there is a material change of circumstances, for further periods of twelve months at a time.

I now turn to the obligations imposed on E in addition to the curfew. Some of the matters relied upon primarily affect S rather than E. Thus, the fact that the family home would normally be a key focus for Muslim North African women but their flat cannot be, because of the prohibition on unauthorised visitors, primarily affects S, as does the fact that, for cultural reasons and because of what Professor Kopelman describes as her phobic symptoms, she does not wish to go out without E. I consider these when I consider S’s case. But they are of no weight in assessing whether E has been so restricted that he has been deprived of his liberty.

I therefore turn to the additional restrictions on E. First, the tagging and reporting obligations increase the practical restrictions on E and are designed to ensure the curfew is strictly observed. The Strasbourg cases referred to in paragraphs 206-209 above, suggest that such requirements will not convert a restriction of movement resulting from a curfew into a deprivation of liberty. Secondly, in some respects the other restrictions to which E is subject are less severe both in their scope and in their effect than the additional restrictions in the JJ cases. E is not restricted within a geographical boundary outside curfew hours. Moreover, unlike the majority of the controlled persons in those cases, E is living in the NW10 area in which he lived before his detention under the 2001 Act, although not in the same part of it. He lives with his nuclear family whereas those in the JJ cases did not. Although, undoubtedly, some of the family’s social acquaintances will have refused to go through the process of obtaining authorisation as visitors, which I accept has a “chilling effect”, as I have noted, five family members living in the same area have been approved as visitors, as well as a friend of S’s. E is thus significantly less socially isolated than the controlled persons in the JJ cases.

I have made findings about those matters of which E complains which in fact reflect his decisions or omissions rather than the restrictions in the obligations themselves: see paragraphs 155 above at 3. Consequences resulting from E’s decisions or omissions are not in my judgment relevant in determining whether he has been deprived of his liberty.

I have also found (paragraph 155 above at 9) that overall, after teething difficulties, the Home Office has on the whole responded without undue delay to requests for variations to the control order by E and his family. There are delays where a request raises new policy issues, or where in order to deal with some requests, it is necessary for the control order team to make inquiries of other agencies, notably the Security Service and the Police. While some difficulties on the inception of a new regime are understandable, they concern “the manner of implementation of the measure” within Keene LJ’s third proposition, and account must be taken of them in assessing E’s concrete situation. There is, however, a distinction to be made between a “manner of implementation” which connotes fault on the part of the public authority concerned and one which does not. Delays caused by the need to consult other agencies also affect the overall practical effect of the restrictions on E but are not necessarily to be characterised as matters for which the Home Office and other public authorities involved are at fault. Delays which are not the fault of the Home Office or public authorities, such as that in reconnecting E’s fixed telephone line also contribute to the overall practical effect of the restrictions but cannot be regarded as part of the manner of implementation of the measure.

All these matters are properly relied on by Mr Tam and Miss Giovannetti in support of their submission that E has not been deprived of his liberty by the control order obligations. Notwithstanding these matters, it is in my judgment of particular importance that E is subject to the same control over visitors to his home and meetings outside the home as the controlled persons in the JJ cases. Like them, his home is not inviolable but is subject to spot checks and searches by the authorities at any time. These requirements do not restrict E’s movements. Nor is that their purpose. The stated purpose of the requirement of prior authority for visitors and prearranged meetings is to restrict E’s capacity to contact others involved in terrorism-related activity, and thus to reduce the risk that he will involve himself in facilitation activities again.

The subjection to police and other searches is more intrusive than the “doorstep condition” commonly imposed on a bailed person during the hours of his curfew where such a condition appears necessary to secure the matters listed in section 3(6) of the Bail Act 1976 (on which see R (CPS) v Chorley JJ [2002] EWHC 2162 (Admin)), or the fact that in Ciancimino’s case the applicant’s presence at home was checked every day and sometimes at odd hours of the night. Again, as I have noted (paragraph 214 above at 4), in Guzzardi’s case the inviolability of Mr Guzzardi’s home and of the intimacy of his family life were respected.

It is the subjection to police and other searches of E’s home and the requirement that all visitors (and pre-arranged meetings outside the house) be approved in advance which make the requirements particularly intense. The restrictions that apply within the house give E’s home some of the characteristics of prison accommodation in which the prisoner has no private space and his visitors are all vetted.

The prohibition on unapproved visitors is no doubt a general one because the authorities are not confident that they have identified all of E’s associates who are involved in terrorism-related activities or they may not wish to signal their interest in named individuals. But its generality adds significantly to the intensity and the burden of the restriction. I note that, in the case of pre-arranged meetings outside the house, each such meeting has to be approved, even where it only concerns family members and others who are authorised to visit E at his home. Mr Jones did not appreciate this and accepted that he erred in stating in paragraph 50 of his witness statement that no permission is needed for pre-arranged meetings outside the residence with those cleared to visit the residence. It is perhaps significant that, following the decision of the Court of Appeal in the JJ cases, the new control orders imposed on those persons permit them to receive any visitors they wish without notice to the Secretary of State and to meet anyone they wish outside their homes, save persons the Secretary of State specifically identifies.

In none of the Strasbourg cases canvassed before me were there similar requirements concerning visitors and all meetings outside the residence, even with individuals authorised to visit the residence. Guzzardi and Labita were prohibited from attending public meetings and from associating with known criminals and those subject to preventative measures. Labita was also prohibited from going to bars. Guzzardi was required to inform the supervising authorities in advance of the number and name of those with whom he was to be in telephonic contact, but was not required to ask permission. Even if, contrary to the conclusion reached by Sullivan J and myself (see paragraph 209 above), Trijonis is to be regarded as a case in which outside the curfew hours the applicant was only permitted to leave his home to go to work, the restrictions only controlled his freedom of movement. He was not subject to restriction of social contact within his home, on the telephone or on the internet. At work – he worked for a private company – his ordinary contact with fellow employees and those who dealt with the company, must have involved pre-arranged meetings. No restriction was placed on these. In a sense therefore, while the restrictions on his freedom of movement were extensive, and (on Mr Tam’s reading of the decision) severe, they were just that and did not affect the other hallmarks of individual liberty. I have concluded that, although E’s is a more finely balanced case that the JJ cases, even giving only very limited weight to the medical evidence as I do, the cumulative effect of the restrictions does deprive E of his liberty in breach of Article 5 of the Convention. Like Sullivan J (see JJ at [80]), in reaching this conclusion I take comfort from the fact that it accords with the views expressed in the Twelfth Report of the Joint Parliamentary Committee on Human Rights (HL 122, HC 915 or 2005-2006). The Committee considered (paragraph 38) that control orders containing the list of obligations set out in the pro forma in Annexe 2 to Lord Carlile’s first report on the PTA “are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR”. For all practical purposes E’s control order is in the same terms as those set out in the pro forma.

In the light of my conclusion on Article 5, the third issue, whether the decisions of the Secretary of State to make, renew and maintain E’s control order are flawed, does not strictly fall for decision. However, as it was fully argued and it is in relation to this issue that the claim by S and her children is advanced, I shall deal with it. It is argued that the decisions are flawed because; (a) there the Secretary of State breached his duty under section 8 of the PTA to consult about the possibility of prosecuting E for terrorist offences, (b) the obligations imposed are disproportionate in the light of E’s history and mental condition, their effect on his wife and children, and the failure of the Secretary of State adequately to keep the possibility of prosecuting him under review, (c) the Secretary of State breached common law and Convention-based obligations of procedural fairness owed to E and his family, and (d) the cumulative impact of the obligations imposed have such a significant effect on E’s children that they violate or risk violating their rights under Article 3.

Has there been a breach by the Secretary of State of his duty to consult under

The Secretary of State’s duty to consult under section 8(2) arises where it appears to him that that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism which would fall to be investigated by a Police force. For the purposes of the hearing before me the Secretary of State was prepared to proceed on the assumption that his duty to consult under section 8(2) arose. Given the matters relied on by the Secretary of State in the third amended statement this was, I venture to observe a realistic concession. It was common ground that the reference in section 8 (1)(b) to an offence that “ would fall to be investigated by a Police force " is to ensure that only offences that would fall to be investigated within the United Kingdom are caught. In such cases section 8(2) requires the Secretary of State to consult the chief officer of the Police force about “whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism”.

Mr Starmer argued that compliance with the duty under section 8(2) is a condition precedent to the Secretary of State’s power to make a control order (see joint skeleton paragraph 137) and that in E’s case it has not been satisfied. He put his submission that section 8 has not been satisfied in three ways. The first is that the Secretary of State consulted on the wrong question, inter alia because he consulted on the impact of public interest factors on prosecution. Secondly, the consideration by the CPS of the possibility of prosecution was inadequate because it was based on the statements prepared by the Secretary of State for the SIAC hearings without consideration of the underlying primary material and because the cases of thirteen detainees were looked at on the one day and that was insufficient time.

Mr Starmer’s third submission on this point is that after E’s control order was made there was inadequate consultation about prosecution in the light of subsequent developments, in particular the fact that the Belgian judgments have become available. This last submission is important in determining whether the Secretary of State’s decision to renew and maintain E’s control order is flawed for the purposes of the court’s supervisory and appellate jurisdiction under sections 3(10) and 10(4) and (5) of the PTA. I do not, however, consider that, if made out, it constitutes a breach of his duty under section 8(2). A failure by the Secretary of State to consult pursuant to section 8(2) may mean that a decision to make or maintain a control order is “flawed” for the purposes of the court’s reviewing and appellate power under sections 3(10) and 10(4) and (5) of the PTA. But the reverse is not true. It is not possible to characterise all “flaws” concerning the consideration of the prospect of prosecution as breaches of the Secretary of State’s duty under section 8(2). Accordingly, I consider this third submission when considering the proportionality of the interference with E’s Article 8 rights.

Miss Giovannetti submitted that it is clear from the wording of section 8 (2) that it is not a condition precedent to the exercise of the power to make a control order. Secondly, she argued that the duty of the Secretary of State is to consult the chief officer of the Police force and it is clear he did this before making the control order. Thirdly, after a control order is made, it is the chief officer of the Police force and not the Secretary of State who is under a continuing duty pursuant to section 8(4) to keep the matter of prosecution under review. There has, she submitted, been no challenge to the decision of the chief officer who is not a party to the proceedings. Fourthly at the time that E’s control order was first made the Belgian judgments were not available. She also submitted, on the basis of London and Clydeside Estates v Aberdeen D.C. [1980] 1 WLR 182 and R v Immigration Appeal Tribunal, exp. Jeyeanthan [2000] 1 WLR 354 that if her submission that there has been no breach of the obligation to consult under section 8(2) is wrong, the Court should in the exercise of its discretion decline to quash the control order.

Condition precedent: Notwithstanding the vital nature of the interest affected by the exercise of the power to make a control order, and the particular importance of considering prosecution where the imposition of preventative measures are being considered, the duty to consult the chief officer of the Police force is not a condition precedent to the exercise of the Secretary of State’s power under section 2 (1). The conditions precedent for the making of a non-derogating control order are set out in section 2 (1). Had the obligation to consult the Chief Officer been one of those, it would have been easy to include it as a further sub-provision of section 2 (1). Mr Starmer submitted that the fact that the policy of the PTA requires prosecution where possible means that the compliance with the duty under section 8(2) is a condition precedent to the Secretary of State’s power to make a control order. There is, however, no need to construe section 8(2) in this way in order to ensure adherence to the statutory policy and adequate judicial control of the Secretary of State’s decision to maintain a control order. It is common ground that there is a continuing duty to keep the question of prosecution under review, although on behalf of the Applicant it is submitted that the duty lies solely on the chief officer of the Police force, whereas Mr Starmer submitted that it also lies on the Secretary of State. In the light of the terms of section 8(4) of the PTA and the decision in MB (see paragraphs 30-32 above) the duty lies on both. For reasons I give in paragraphs 281-293, I conclude that a failure to keep the question under review and lawfully to consider whether new material gives rise to a realistic prospect of prosecution, renders a decision to maintain a control order “flawed” for the purposes of the supervisory and appellate functions of the Court under the PTA.

Section 8 and the roles of the Secretary of State, the chief officer of the Police force and the relevant prosecuting authority: When the Secretary of State first consults the chief officer of the Police force, section 8(5) requires the chief officer to consult the relevant prosecuting authority. Once the control order is made section 8(4) imposes a duty on the chief officer to keep the matter of prosecution under review “throughout the period during which the control order has effect “. Thereafter, the chief officer’s duty to keep the matter of prosecution under review only requires him to consult the relevant prosecuting authority where he “considers it appropriate to do so”: section 8(5).

Where no new material has become available, unless a change in the law has affected the status of material previously considered, it is not arguable that the chief officer’s duty to keep the matter of prosecution under review requires him to go back to the relevant prosecuting authority. Where there is some new material, but it is objectively clear, taking account both of that material and material previously considered, that there is still insufficient admissible open evidence to found a prosecution, a decision by the chief officer that it is not appropriate to consult the relevant prosecuting authority would be within his discretion under section 8(5). There remain the scenarios in which it is not clear that the new material together with the material previously considered does not suffice to found a prosecution, or it is clear that it does so suffice, but the prosecuting authority is not consulted. In such cases the chief officer will have either decided not to consult the prosecuting authority or failed to consider whether to do so. However the chief officer’s conduct is characterised, this is likely to be reviewable as an unlawful exercise of his discretion under section 8(5). In my judgment, this conduct also renders the Secretary of State’s decision to maintain a control order “flawed” for the purposes of sections 3(10) and 10(4) and (5) of the PTA. I deal with this in paragraphs 281-293 below. Here it suffices to say that this follows from the Secretary of State’s continuing duty in relation to the control order which was identified in MB’s case, and the fact that his decision to maintain the order is in this sense tainted by his failure adequately to keep the issue of prosecution under review. In substance the Court of Appeal in that case stated (at [53]) that it will not be regarded as “necessary” to impose control orders where there is a realistic prospect of bringing a prosecution for a terrorist offence.

The letter from DAC Peter Clarke’s office dated 22 September 2004 responding to a Home Office request shows that there were discussions between the Home Office and the Metropolitan Police about the possibility of prosecuting those detained under the 2001 Act in 2004. Such discussions are not relied upon and cannot be relied upon for the purposes of section 8 of the PTA. It is, however, clear that in January 2005 the Home Office consulted the Police about the prosecution of those detained under the 2001 Act, including E. Miss Byrne wrote to Sir David Veness on 11 January 2005 asking that the Police and the CPS review the cases of those detained under the 2001 Act with a view to “determining whether there is yet sufficient evidence to mount a prosecution in any of their cases”. A week later Miss Hemming, the Head of the CPS’s Counter-Terrorism Division, and a Detective Superintendent visited Thames House to consider “whether there would be any prospect of a prosecution” against any of the detainees. The CPS view of the outcome is contained in Miss Hemming’s letter dated 19 January. The consultation of the Police which led to the visit to Thames House satisfied the requirements of section 8 because section 8(6) provides that the duty of the Chief Officer to consult the relevant prosecuting authority before the order is made may be satisfied by consultation “that took place wholly or partly before the passing of the PTA."

Section 8(6) reflects the reality that the 2001 Act would cease to have effect unless (as would have been possible under the Human Rights Act 1998) it was decided to renew it in the face of the judgment of the House of Lords in A and others v Secretary of State for the Home Department in December 2004. The letter dated 11 January 2005 to Sir David Veness states that the question of how to proceed, including whether the detainees could be prosecuted and whether a new regime should be introduced, had been under consideration since that judgment. Once it was decided to introduce the system of control orders, it was important for there to be no gap between the expiry of the 2001 Act and the coming into force of the new regime.

There is no documentary evidence of any other consultation with the Police by the Home Office between January and March 2005. However, before the control orders were made, representatives of the Home Office, the Police and the Security Service met on 7 and 8 March 2005. The possibility of prosecuting those under consideration, including E, was discussed, and both Mr Whalley and DAC Clarke referred to the letter dated 19 January. The minutes of those meetings also show that the Secretary of State consulted the Police prior to making the control order against E. At the first meeting he also ensured that he was appraised of the views of the CPS in respect of the prospects of prosecuting E.

It is thus absolutely clear that the Home Secretary did consult the Police and the Police did consult the CPS. The question is whether the consultation satisfied the requirements of section 8(2).

I do not accept that consultation under section 8 only relates to the evidential stage in the CPS’s Code for Crown Prosecutors where the test applied (paragraphs 5.2-5.5) is whether there is enough evidence to provide “a realistic prospect of conviction”. Mr Starmer’s submission has insufficient regard to the language and the context of the statute. Had Parliament wished to confine consideration of prosecution to the evidential test, it could have replicated the words used in the Code in section 8. But it did not do so. The use of the phrase “evidence available that could realistically be used for the purpose of prosecution “in section 8(2) shows that Parliament was not concerned with the objective evidential test and that what it had in mind was a wider test bringing in the second stage of the Code test, the public interest test. This, set out in paragraphs 5.6 to 5.9 of the Code, is whether, although the evidential test is met, there are public interest factors tending against prosecution which clearly outweigh those tending in favour. That Parliament intended the public interest factors to be considered gains clear support from the context, which is the consideration of prosecution for terrorist offences. It is highly likely that the question of prosecution in that context will be significantly affected by public interest factors, in particular national security considerations. In any event, the evidential stage, which requires assessing whether there is enough evidence to provide “a realistic prospect of conviction”, is concerned with assessing the quality of the evidence and the consequences of its use as well as its admissibility.

I also reject Mr Starmer’s submission that the control order statement indicates error as to what is to be considered with regard to prosecution. The conclusion in the control order statement as to the impossibility of prosecuting E for criminal offences does not only refer to the fact that the case against him is based on evidence that “might not be admissible”, which Mr Starmer argued demonstrates error. The statement also says that, even if material were admissible, disclosure of it is very likely to cause harm to the public interest.” Overall what is said in the control order statement does not, in my judgment, reveal any error in approach.

The third limb of Mr Starmer’s submissions on this point relies on Mr Whalley’s statement of 8 April that it was the view of the Metropolitan Police Commissioner that none of those considered “could be prosecuted successfully”. This is more problematic. It is true that Mr Whalley’s statement also sets out the terms of the question which the Police were asked to consider and that the question asked uses the statutory language. The fact that the correct question was asked does not of itself show, as Mr Jones suggested, that notwithstanding the terms of the answer the Police considered the correct issue. In considering what was in fact considered, I am, however, assisted by the terms of Miss Byrne’s letter to Sir David Veness dated 11 January 2005, Miss Hemming’s letter of 19 January, and what is recorded in the minutes of the meetings of 7 and 8 March. The position taken by the CPS was clearly central to the consideration of prosecution at the March meeting and the minutes, albeit brief, are a contemporaneous note of what was considered before the decision to make the control orders was taken.

Miss Byrne’s letter dated 11 January 2005 asks the Police and CPS to consider “whether there is yet sufficient evidence to mount a prosecution”. This does not suggest that the Police and the CPS were being asked to consider whether a prosecution would succeed. Miss Hemming’s letter dated 19 January states that what was considered by her and the Detective Superintendent was whether there was any prospect of a prosecution. Its conclusion is “there is no prospect of any further criminal prosecutions”. In E’s case the letter states there was no prospect of prosecution because the evidence is either closed or inadmissible. Closed evidence is evidence which, even if admissible is, in the context of terrorism, unlikely to be used because the public interest factors tending against its use in a prosecution will often clearly outweigh those tending in favour. The minutes of the meeting on 7 March state that “prosecution is not possible” and the minutes of the follow-up meeting on 8 March that “the CPS had confirmed … that they could not prosecute…”. The words of the minutes reflect what is stated in the letter of 19 January. The terms of that letter and of the minutes of the March meetings show that what was under consideration was not whether “prosecution would be successful” but whether it was possible, or there was a “prospect” of prosecution. That, to my mind, is substantially the same as the statutory question; evidence which “could realistically be used” in a prosecution. For these reasons, I also reject this limb of Mr Starmer’s submissions on this point.

Although the time scale for the consideration of the prospects of prosecuting the detainees was tight, for the reasons I give below, I do not consider the CPS’s consideration of this matter on 18 January was insufficient or inadequate.

First, Miss Hemming had available the full statements prepared by the Home Secretary for the certification proceedings under the 2001 Act, that is the open and closed statements. She described these as “substantial documents summarising the main case against each person and identifying where the information came from”. The evidence before me was that the documents were similar to the statements submitted on behalf of the Secretary of State in support of the control order in E’s case. It is easy to see from the statements what evidence is open and what evidence is closed. The footnotes to the statements identify the nature of the evidence and its source. These may include Security Service reports and assessments, evidence recovered in searches, documentary evidence, statements by third parties, intercept and other surveillance evidence, and material on the internet.

Secondly, Miss Hemming states that from this material she was able to “see what information was held against each detainee and to establish whether the information could potentially be converted into admissible evidence, or whether it came from a closed or inadmissible source that could never become part of a criminal trial”. She concluded that “in none of the cases was there identifiable material that was capable of further criminal investigation; where there was anything potentially admissible, it had already been considered and rejected or had been the subject of a criminal prosecution”. It is to be noted that Lord Carlile of Berriew QC, who considered the files of those detained under the 2001 Act that were placed before the Home Secretary when he was asked to determine whether a control order should be made, stated that they included “detailed summaries of evidence and intelligence material” (First Report February 2006, paragraph 35), that “much of the information is derived from intelligence”, and that “the sources and content of such evidence demand careful protection in the public interest”, given the need to respond to terrorism (ibid, paragraph 36).

Thirdly, Miss Hemming, an experienced prosecutor and Head of the CPS’s Counter-Terrorism Division, made no qualification to her assessment on the ground that she had not examined all the primary material.

Fourthly, it is not the case that none of the primary material was looked at. Miss Hemming states that in the only case where potential material had not been considered by either the Police or the CPS (AG), she did in fact look at the material. This would appear to be case number 5. She concluded that the material was incapable of amounting to an offence. It thus appears that in the cases where she considered it necessary she did examine the primary material. Moreover in another case (number 7) her consideration of the statements led her to ask for an inquiry to be made in another E.C. country.

Finally, it is respectively said of cases 1, 8, 11 and 13 that “PII difficulties prevented a prosecution going ahead”, there had previously been “a full investigation”, “some review”, and “evidence … has previously been considered and a decision made not to take any action for evidential reasons”. The assessment by Miss Hemming was thus not the first time the prospect of prosecution in these cases was considered, albeit perhaps not by the CPS, and what she says in her letter shows that she was aware of the reasons that had been given for concluding that prosecution was not possible.

In E’s case it is stated that “some documentation was found at the time of detention that suggested involvement in fraud, but there was insufficient to prove any offences” and that “the information about his terrorist related activity comes from closed or inadmissible material that could never be used in a criminal prosecution”. It is to be recalled that the Belgian judgments, which are now relied on, were not available at that time.

For the reasons I have given, I have concluded that in this case there has there has not been a breach of the Secretary of State’s duty under section 8(2).

Has the Secretary of State established that the obligations imposed by the control order are proportionate to the interferences with the rights of E and those of his family under Article 8?

The control order clearly constitutes a significant interference with the private and family life of E, S and their children. The issue is whether, in the light of the national security case, the Applicant has established that such interference is proportionate to a legitimate aim. It is not arguable that the prevention of terrorism is not a legitimate and weighty aim for the Applicant to pursue. I turn to the grounds upon which it is said that the Applicant cannot demonstrate that the interference is proportionate.

The first ground upon which it is argued that the decisions to make and maintain E’s control order cannot be shown to be proportionate is the submission that the Secretary of State was insufficiently informed about E’s mental condition and the effect of indeterminate detention under the 2001 Act on the mental health of those detained. Mr Starmer relied on a statement by Lord Diplock in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, at 1065B and the decision in R(Q) v Secretary of State for the Home Department [2004] QB 35. He submitted that E’s medical records from HMP Belmarsh, the report by Professor Kopelman about E served on 9 March 2005, and reports on the position of those detained under the 2001 Act by the eight psychiatrists and psychologists who provided care and assessments for them, and by the European Committee for the Prevention of Torture, were available but not considered.

The evidence does not support this submission. Mr Jones said that at the time the control order was first made the Home Office had E’s medical records from HMP Belmarsh but his was not a case in which the medical evidence had outweighed the national security risk and the necessity for a control order. Professor Kopelman’s report was only served after the crucial meetings on 7 and 8 March and was then sent to the Special Immigration Appeals Commission under cover of a letter in connection with E’s application for bail, which was copied to the Treasury Solicitor. The evidence as to the position thereafter is as follows. It is not stated in the minutes of CORG that there was any consideration of medical evidence or medical issues concerning E’s case. Mr Jones’s evidence was that a controlled person’s caseworker would be at meetings and could raise health and welfare issues if they arose. The suggestion is that the position was similar under the more informal arrangements in place before CORG was established. Although in August 2005 E’s solicitors wrote to the Home Office stating that further psychological and psychiatric reports about E and the family would be made available, and in November 2005 the Home Office asked E’s solicitors to provide them, Mr Jones said none were received by the Home Office before service of the medical evidence for the hearing in October 2006.

It was suggested that the Home Office civil servants, who did not have relevant psychiatric or psychological qualifications, should have arranged for an appropriate assessment of E and should not have made decisions about whether his mental health was to be raised at review meetings. Mr Jones said that the Home Office did not consider that either the information provided by his solicitors or the reports about the effect of indeterminate detention under the 2001 Act on mental health meant there was a need for it to conduct a separate psychiatric assessment of E. The fact that the medical evidence about E’s mental state available to the Home Office was not considered by a medically qualified person is potentially of concern in assessing the continuing necessity of the control order and of particular restrictions under it. In E’s case, however, it is significant that, notwithstanding the information provided by his solicitors to the Home Office, no requests were made for the authorisation (as required under the terms of the control order) for medical appointments for psychiatric or psychological treatment. The only such request concerned E’s kidney problems. In these circumstances, there was no need for an independent psychiatric or psychological assessment and the absence of references to E’s medical condition in the minutes of review meetings is not something which renders the decision to maintain his control order a “flawed” decision.

Moreover, the authorities relied on concern materially different situations. In Secretary of State for Education and Science v Tameside MBC Lord Diplock stated that “the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”. The case was one in which it was held that, although lacking in specification, the local education authority’s letter conveyed sufficient information to the experts at the Department, and that the Secretary of State had asked the wrong question. R(Q) v Secretary of State for the Home Department was a case concerning a determination to refuse asylum support to applicants on the basis of their asylum interviews. The information available to the Home Office about the individuals, some of whom had recently arrived in this country, was largely derived from those interviews. In E’s case, however, the Home Office had considerable information about E, his health and his family. In Q’s case, moreover, the determination of entitlement to asylum support involved consideration of the individual’s state of mind. In that case the instructions given to the decision makers were inadequate as to the test to be applied and the information needed in order to apply the proper test. The matters addressed on the standard form of questionnaire used did not provide the information needed for that test.

Mr Starmer also submitted that the decisions to make and maintain E’s control order were flawed because the Home Secretary did not carry out an individualised impact assessment. He relied on the statement in Boness and others v R [2005] EWCA Crim. 2395 at [29] in which it was said of an anti-social behaviour order that, since the order can only be made if it is necessary to do so to protect persons from further anti-social acts, it should “be tailor-made for the individual offender, not designed on a word-processor for use in every case”. Reliance on Boness’s case is misconceived because, although there was a common framework of obligations imposed on E and the other detainees under the 2001 Act, since the risks to national security they were assessed to pose were similar, that was not surprising. I have noted in paragraph 105 above that the obligations themselves were not identical.

As to the question of whether it was necessary to have an independent psychiatric or psychological assessment of E’s mental condition, the grounds on which I have rejected the submission that the Secretary of State did not take a fully informed decision about subjecting E to a control order apply here too. Professor Kopelman’s report that was sent by E’s solicitors to SIAC on 9 March 2005 and copied to the Treasury Solicitors was dated 16 March 2004. No further reports on E’s condition were received prior to the receipt of the reports for the purposes of these proceedings in October 2006. Moreover, although information about E’s condition was sent to the Home Office by his solicitors, there were no requests to attend psychiatric or psychological appointments during that time. In these circumstances there was no requirement on the Home Office to undertake a psychiatric or psychological assessment of E’s mental condition.

The third limb of Mr Starmer’s submission that the decisions to make and to maintain the control order were flawed is that the Home Office was under a duty to monitor effectively the impact of the control order to ensure that the acceptable limits of interference with E’s Article 8 rights were not exceeded and the threshold of prohibited treatment under Article 3 was not crossed. He relied on the decision in Keenan v United Kingdom [2001] 33 EHRR 913 at paragraphs 108-115. In that case the Strasbourg Court held that the lack of effective monitoring of the condition of a mentally ill prisoner and the lack of informed psychiatric input into his assessment constituted inhuman and degrading treatment within the meaning of Article 3. There is, however, a fundamental difference between a person in prison and a person such as E. E is subject to very significant restrictions but is not in prison. In the case of a person in prison, access to medical services is entirely in the hands of the authorities. The particular duties owed by the state to vulnerable people detained either in prisons or in mental hospitals are well established. In E’s case he was not so confined or deprived of access to appropriate medical attention and was indeed receiving it.

E’s solicitors informed the Home Office of his mental state. In March 2005 they sent a report by Professor Kopelman, a consultant psychiatrist, and in August 2005 stated that more reports on the family would be forthcoming. As stated previously these were only provided shortly before the hearing and Mr Jones’s evidence that that there were no requests for permission to attend psychiatric or psychological appointments during the period the control order was in force was not challenged. I leave aside the fact that E’s attendance without authorisation at the seven appointments Professor Kopelman referred to was a technical breach of the control order, technical because permission would surely have been granted. The importance of this in the present context, however, is that, permission not having been sought, the Home Office cannot be blamed for not knowing that E was regularly seeing Professor Kopelman. In the light of this, and the information the Home Office had about his condition, I do not consider that the Home Office was required to take additional operational steps, such as instructing its own psychiatrist or psychologist.

I recognise the considerable impact of the control order on S and the children who are not suspected of terrorism-related activities. On the evidence before me the long term impact on the children is likely to be significant and detrimental to their mental health. S is clearly significantly affected, particularly in the light of her dependence on E and the understandable cultural factors. There is, however, no diagnosis that she is clinically depressed and she has never been referred for treatment for mental health problems. Moreover, while the cultural factors should be taken into account, they have not stopped her sometimes visiting other family members on her own.

Mr Singh submitted that the Applicant is not able to demonstrate that the interference is proportionate because the order has not been individually tailored or thought through with respect to the impact on S and the children, and because there has never been a system for the regular review of the impact of the control order on them. The terms of the order do permit children to visit without the need for prior authorisation but the nature of the risk identified by the Security Service in relation to E and the assessment of what restrictions were necessary to reduce that risk left little scope for further modifications.

The reasons I gave for rejecting the submissions made on behalf of E about the absence of an individual impact statement and monitoring the impact of the order also apply to S and the children. The Home Office received a considerable amount of information about the family and the impact of the order from their solicitors. The medical and psychological reports referred to in the solicitors’ August 2005 letter were not sent until just before the hearing. The Applicant is and has been aware of the undoubted interferences with the rights of S and the children as a result of the control order. Mr Jones’s evidence is that family circumstances were considered when making the control order and the caseworkers can and have raised family circumstances at review meetings, although there was no evidence as to the specific position in relation to S and the children and there is nothing about the position of the family in the CORG minutes.

The Applicant has, however, concluded that notwithstanding the cumulative weight of the compassionate factors concerning S and the children, the control order remains necessary. The court must decide whether the Applicant has struck the balance fairly between the competing interests of the rights of S and the children to respect for family and private life and those of the state and the public in the prevention or restriction of involvement in terrorism-related activity. Mr Singh recognised that, given the national security case against E, while the effect on the family had to be taken into account it was a secondary factor. In weighing the factors and making his assessment, the Secretary of State has a discretionary area of judgment which the court must recognise and allow, although it must scrutinise the weight given to the various factors carefully in accordance with the approach set out by Dyson LJ in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ. 1139, at [39]. The court needs to be especially vigilant about the impact on vulnerable children.

In the light of the Applicant’s national security case which I have accepted, and the nature of the risk E is assessed to pose, the interests of the State and the public in preventing or restricting involvement in terrorism-related activity are particularly weighty. I have concluded that the weight of those interests is such that it justifies the serious interference with the rights of E’s innocent wife and children and that the decision to maintain E’s control order is not disproportionate on this ground.

I have referred to the requirement to keep the matter of prosecution under review throughout the period during which the control order has effect. I have also referred to the submission on behalf of the Applicant that once the order has been made it is the chief officer of Police (by virtue of section 8(4)) and not the Secretary of State who is under a continuing duty to do so. This requirement is quite distinct from the Secretary of State’s obligation under 8(2) to consult before the order is made. However, I reject the submission that once the control order is made, the Secretary of State is not under any duty in respect of the matter of prosecution.

In MB’s case the Court of Appeal held that the Secretary of State is under what I have described as a continuing duty in respect of the conditions for the making of the control order and the necessity of the restrictions imposed by it: see [44] set out in paragraph 30 above. The court considered this duty was implicit from the provisions of section 7 and would be implicit even without section 7. The Court also stated (in paragraph [53]) that:

“[a] control order is only appropriate where the evidence is not sufficient to support a criminal charge …” and , after setting out section 8(2) that “[i]t is implicit in the scheme that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order.”

It is not apparent from the judgment whether the Court’s conclusion was based on the implication from section 7 and the remainder of the statute alone, or whether consideration was given to the Parliamentary consideration of the Bill that became the PTA. It is, however, consistent with what the then Home Secretary said in the second reading debate about this issue. He said:

“These orders are for those dangerous individuals whom we cannot prosecute or deport, but whom we cannot allow to go on their way unchecked because of the seriousness of the risk that they pose to everybody else in the country”, and

“Before making, renewing or remaking any control order, I shall ask the Police whether there are realistic prospects of bringing criminal charges against the individual concerned, and I shall seek the confirmation of the Police that further investigations will be carried out during the period when the order is enforced in order to pursue prosecution as the preferred route”: HC Debs, 23 February 2005 Col 339.

In my judgment, although there has been no breach of section 8(2) of the PTA, the Secretary of State has a continuing duty to keep the decision to impose and maintain a control order under review. This includes keeping the matter of prosecution under review. Accordingly, if there has been a failure to keep the matter of prosecution under review, the Secretary of State’s decision to maintain a control order is likely to be flawed. Such a failure may arise as a result of the acts or omissions of the Police or of the Secretary of State.

It is said on behalf of the Applicant that the decision of the relevant chief officer, DAC Clarke, has not been challenged. It was suggested that it was not open to E to take this point in these proceedings and that judicial review may be the appropriate procedure for such a challenge. The latter suggestion is, in my judgment, inconsistent with section 11 (2) of the PTA. In any event, put in this way, the challenge is to the adequacy of the process of continuing review undertaken originally at the ad-hoc meetings described by witness J and Mr Jones, and now at the meetings of CORG. This is properly a matter for the court in considering whether the decisions of the Secretary of State to make, renew and maintain E’s control order are “flawed”.

Where no new material becomes available, keeping the matter of prosecution under review will be a straightforward matter, unless there is a change in the status of the available evidence, in the sense that what was previously closed has become open or what was previously inadmissible becomes admissible. Unless there are changes in the law (for example in relation to domestic intercept evidence), the latter scenario is unlikely. Where there is new material, or the status of the material previously available changes, the extent of the obligation to reconsider the prospect of a prosecution will depend on the significance of the new material. In the present case the Belgian judgments were received in November 2005, have been available in English since January 2006, and since September 2006 have been part of the open evidence. Both their availability and the fact that they and the information and sources in them have subsequently been made open are of significance. The judgments are now at the core of the Applicant’s open national security case against E.

Their significance for the prospect of prosecution is as follows. First, intercept evidence from Spain and the Netherlands was admitted in the Belgian proceedings. That evidence is, in the light of the authorities culminating in R v P [2002] 1 AC 146, in principle admissible in England. An assessment of the implications of such evidence for the case against E is needed in order to determine whether the prospects of prosecuting him have changed. Secondly, I accept Mr Starmer’s submission that, apart from the admissibility of such evidence, it was necessary to consider the impact of making that evidence public on the public interest factors in play in E’s case. Thirdly, it was suggested (albeit in the context of section 8(2)) that the Secretary of State is not required to gather evidence in other countries and that it had not been shown that the Belgian judgments constituted evidence. But what is important is the material identified in the judgments. It was not suggested on behalf of the Secretary of State that Mr Starmer was wrong in stating as he did that evidence from the Belgian proceedings was used in prosecutions against three people, Benmerzouga, Meziane, and Al Siri. It is for this reason that the possibility of prosecuting E in the light of the material about him identified in the Belgian judgments needed to be considered.

I turn to the evidence as to the consideration that was given to prosecuting E after the control order was made in March 2005, and in particular after the Belgian judgments became available and were made open. The evidence given by witness J and Mr Jones suggests that the impact of the Belgian judgments and the material referred to in them on the prospects of prosecuting E was not considered.

The picture gained from J’s evidence was of ad hoc oral communications between the Police and the Security Service. Given the pressures on them during 2005 and 2006, particularly after the bombings on 7 July 2005, such a method of communicating may in general have been sufficient. However, where, as in E’s case, significant material becomes available and is then put into the open evidence, if the method of communicating is ad hoc, there is a risk of it not being considered.

Apart from DAC Clarke’s letter of 23 February 2006 to a Grade 6 official in the Home Office’s Terrorism Unit, the searches by the Home Office and enquiries of DAC Clarke’s office have not revealed any document concerning a review of the position with regard to prosecution between March 2005 and March 2006 when the control order was renewed. DAC Clarke’s letter does not identify the material considered or the reasons for his conclusion. Mr Jones stated that he believed that DAC Clarke’s letter was sent to the Home Office with a letter from the CPS to the Police but this was not found. In the absence of any records in the CPS, and Miss Hemming’s telephone conversation with Ms Peirce referred to in paragraph 111 above, it would, however, appear that there was either no consultation with the CPS or that any consultation was oral.

There is no indication on either the Security Service files or the papers held by the Home Office that the Belgian judgments were sent to the Police or to the CPS in order that the prospects of prosecution could be reviewed in the light of them. Mr Jones’s evidence was that at the CORG meeting in May 2006 he asked about the possibility of prosecution and the Police said that prosecution was not possible. He considered that it was for the Police to respond and to raise matters updating the position at the meetings. Asked whether anyone had mentioned the Belgian proceedings and whether they affected the prospect of prosecution he said the review only considered activity in the particular quarter. I infer from his response that there was no reference to the Belgian judgments at the meetings of CORG. The open statement concerning the minutes of the CORG meetings in May and August 2006 show that there is no reference to prosecution for the underlying terrorist offences. It appears from the evidence that, while some consideration may have been given at meetings of CORG to prosecution of terrorism offences, they were primarily concerned with compliance with the terms of the control order. The evidence of J, the national security witness, is of particular significance on this issue. J did not believe that there had been any review of the question of prosecution in the light of the Belgian judgments. Once that evidence was before the court it was open to the Applicant to seek to adduce evidence to show that there had been such a review. No application to do so was made. In the light of J’s evidence and the absence of any evidence on behalf of the Secretary of State that the question of prosecution was reviewed in the light of the Belgian judgments, I conclude that it was not so reviewed.

On the evidence it is not possible to say whether the responsibility for this omission lies with the Police. Whether or not it does, in view of the continuing duty on the Secretary of State in respect of the control order, Mr Jones’s view that at meetings of CORG it sufficed for the Home Office to ask the Police about prosecution was insufficient. The Belgian judgments were obtained by the Home Office in connection with these proceedings. By May 2006 the Home Office was considering their impact on the present proceedings. The decision to make them open was taken shortly after the August meeting of CORG. In the case of a person such as E, where the original consideration of prosecution by the CPS was based on material prepared in 2002, and where towards the end of 2005 and the beginning of 2006 significant material in the form of the Belgian judgments was received by the Home Office, a process which simply relied on the chief officer of the Police force or the Police officer present at the relevant meeting of CORG to bring matters forward is insufficient.

For this reason, while accepting that the Secretary of State was not in breach of his duty under section 8, I have concluded that the failure to consider the impact of the Belgian judgments on the prospects of prosecuting E means that his continuing decision to maintain E’s control order is flawed. As far as the remedy is concerned, the question of whether the control order remains necessary is intimately bound up with the question of whether there is now evidence which gives rise to a realistic possibility of prosecuting E. In these circumstances it cannot be said that the failure on the part of the Secretary of State is technical.

The question whether the individual obligations imposed are necessary is part of the “necessity assessment” of which the Court of Appeal in MB’s case stated [at 64-65] “a degree of deference must be paid to the decisions taken by the Secretary of State”. The Court of Appeal also stated that, “notwithstanding such deference”, in the case of obligations that are particularly onerous or intrusive, there will be scope for the court to give “intense scrutiny” to the necessity for each of the obligations imposed, and that it should explore alternative means of achieving the same result.

I have considered whether there are alternative means of reaching the same result. When considering whether the cumulative effect of the control order obligations deprive E of his liberty I referred to the general nature of the prohibition on unapproved visitors and meetings, and the effect this has on the intensity and burden of the restrictions. Meetings outside the house (other than prayer meetings) require approval even where they are only with people who have been authorised to visit E’s house. I have considered whether these obligations could be relaxed. The possibilities include replacing the need for prior authorisation of such meetings by an obligation to give advance notification of the particulars of meetings or (as in the new control orders in the JJ cases) permitting visitors and meetings save with persons identified by the Secretary of State.

The difficulty is that, as I have noted (paragraph 94 above) neither Mr Jones nor J was cross-examined about the continuing necessity of any of the individual obligations to which E is subjected. Since the Applicant’s witnesses were not challenged about the necessity of the individual obligations, there is no material before me upon which I can conclude that the less restrictive alternatives I have considered would be adequate to meet E’s assessed risk. There is accordingly no material to set against the Secretary of State’s decision that all the obligations remain necessary as part of the “intense scrutiny” referred to by the Court of Appeal. Bearing in mind the “degree of deference” which the Court of Appeal has stated must be given to the decisions of the Secretary of State as to the necessity of the individual obligations imposed, I have concluded that this is not a case in which it can be said that the Secretary of State’s decision is flawed.

It is important for the Secretary of State to demonstrate that careful consideration has been given to the continuing necessity of the individual obligations. The court considering a new control order or a renewal of the present one will need to be satisfied that, for example, replacing the requirement of prior authorisation of all meetings with an obligation requiring advance notification of the particulars of meetings would not suffice. This would be part of the Secretary of State’s need, particularly in view of the length of time E has been either detained or subject to a control order, to consider carefully whether the continuing risk E is assessed to pose might be adequately addressed by such relaxation.

Has there been procedural unfairness?

It was argued that both at common law and under the Convention fairness requires that E be afforded an opportunity to make representations either before or after the decision to make the control order is taken. Reliance was placed on the speech of Lord Mustill in R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531,560D-G, and, in relation to the Convention, McMichael v United Kingdom (1995) 20 EHRR 205 at paragraph 87. Mr Singh argued that in view of the impact of the control order on S and the children, and in the light of R v LAUTRO, ex p. Ross [1993] QB 17 at 50, that fairness also required that they be given an opportunity to make representations. It was submitted that the need for such an opportunity was reinforced by the recognition in MB’s case that the Secretary of State was under a duty to keep the decision to impose the Control order under review and that the provision in Section 7 (2) for the 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”: [2006] EWCA Civ. 1140, at [44] and [65]. Reliance was also placed on the duty under Section 14 (1) of the PTA to make a quarterly report to Parliament as showing the need for an opportunity to be given for representations.

The continuing duty, the envisaged dialogue, and the duty to report, do not assist in relation to any duty to consult before the order is made. In my judgment it is clear both from the provisions of the PTA and the underlying common law principles that there is no duty to consult before making a control order. This is so whether the process was that under section 3(1)(a), whereby the permission of the court is sought to make the order, or that under section 3(1)(b) or (c), under which the order can be made without the permission of the court. An order can be made without the permission of the court in urgent cases or where it is made before 14 March 2005 against a person subject to a certificate under the 2001 Act.

The following provisions of the PTA show that Parliament intended to exclude any obligation to afford the individual an opportunity to make representations before the order is made. Firstly there is the requirement in the PTA that the Secretary of State normally seek the permission of the Court to make a non-derogating order (section 3(1)(a)). Secondly the Court may consider such an application without the individual having been notified of it (section 3(5)). Thirdly, the statute requires that the individual be given an opportunity to make representations within 7 days of the Court’s giving permission (section 3(7)). Finally, the provisions governing urgent cases and orders made before 14 March against those certified under the 2001 Act are inconsistent with a duty to afford an opportunity for representations at that stage. Where the order is made without applying to the court section 3(3) requires the Secretary of State to refer it to the Court immediately. Section 3(5) enables the Court to consider the application in the absence of the individual and notwithstanding that the individual has not been notified of it. Additionally, in the context of a perceived need to protect the public from the risk of terrorism, the nature of much of the evidence considered by the Secretary of State and the fact that the individual who is to be subjected to a control order may go to ground if he is notified of the intention to make such an order in advance are all factors which justify not requiring that an opportunity be afforded to make representations before the decision is taken. On the recognition that the right to an opportunity to make representations may be outweighed by over-riding considerations of national security see, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

I turn to the position after 14 March 2005 when E’s control order was made. It was submitted on behalf of the Applicant that he acted fairly throughout. He took into account the quite detailed information about E and his family that he had from the Security Service intelligence and the statements and medical reports submitted in the proceedings under the 2001 Act. It was submitted that he took into account all the information subsequently furnished on behalf of E and his family and that this information fed into the background knowledge acquired by the small team in the Home Office responsible solely for the administration of the control orders. Moreover, it was submitted that in November 2005, prior to the renewal of the control order, the Secretary of State pressed E’s solicitors for the provision of the “family psychiatric and psychological reports” that they had indicated they wished to submit but that those reports were not forthcoming until October 2006. Finally, it was submitted that the willingness of the Home Office to maintain an ongoing dialogue with those subject to control orders is shown by Mr Jones’s evidence, for example in relation to varying control order obligations to enable families to follow Ramadan observances without interfering with arrangements for the school run.

Mr Jones’s statement that control orders are served with covering letters which indicate that any questions about the content of the order or the obligations can be put to the Control order Contact Officer (set out in paragraph 105 above at 8) may reflect more recent letters. It does not, however, reflect the document sent to E at the time of the Control order, see paragraphs 50 and 106 (at 12) above. That document did not invite representations about the obligations or indicate that they could be made to the Control Order Contact Officer. The document dealt with the position where E was “required to seek agreement from, notify or otherwise contact the Home Office for the purposes of any of the obligations imposed by the order” (emphasis added)

As far as the letter from the Treasury Solicitors dated 9 November 2005 was concerned, although that was sent in connection with the present proceedings rather than the renewal of the control order, it was an invitation to furnish the material that had been said to be forthcoming. In this sense it is similar to Professor Kopelman’s report which was sent to SIAC and copied to the Treasury Solicitor on 9 March 2005. There was, however, no specific invitation to make representations for the purpose of the Secretary of State considering the renewal of the order. Since the hearing, in Mr Abu Rideh’s case Miss Byrne produced the letter dated 12 December 2006 inviting him to make any submissions concerning factors or circumstances he wished to be taken into account by the Secretary of State in considering whether to renew the Control order. Miss Byrne said that this letter was a new procedure bearing in mind what the Home Office had learnt through the process and that it seemed a good way of ensuring that the controlled person can raise material so it can be considered by the Secretary of State. While this letter did not refer to the family, Miss Byrne stated that the Secretary of State would welcome representations made on behalf of the family.

The considerations that led me to conclude that there was no requirement to give an individual an opportunity to make representations before an order is made do not apply once the order is made. The dialogue referred to by the Court of Appeal in MB envisages that there will be an exchange of information. Where no information is forthcoming it follows from the Secretary of State’s continuing duty and the need for this dialogue that the Secretary of State should invite representations. In the present case, what is argued on behalf of the Secretary of State is that the experienced solicitors acting for both E and for his family made representations throughout the period of the Control order concerning the impact on E and his family of the obligations, the family’s health, and the applications for modification or revocation of particular obligations and the reasons given for them. It is essentially argued that, given these circumstances, there was no need for the Secretary of State to invite E and his family to make any submissions.

Openness to representations made is, however, not the same as affording an opportunity to make representations. In the context of situations in which it has been held that an opportunity to make representations must be given before a decision, openness to representations subsequently made is no answer because it is difficult to maintain that the decision maker can remain as open minded as if no decision had been taken, and there is a danger of becoming defensive and entrenched : R v Secretary of State for the Home Department, ex p. Hickey [1995] 1 WLR 734 at 744 and R (Q) v Secretary of State for the Home Department [2004] QB 36 at [91]. Clearly, where there is no such duty in advance of a decision, this argument is weaker but it still has some force. Where, as was Mr Jones’s evidence and may be the case in respect of more recent control orders, the control order is accompanied by a letter indicating that questions about the content of the order or the obligations and representations can be put, there may be no problem. In E’s case, however, this did not occur. Moreover, the considerations that negate any requirement to give an opportunity to make representations before the control order is initially imposed do not apply to the renewal of the order. The letter, dated 20 December 2006, to Mr Abu Rideh and Miss Byrne’s evidence suggest that the Home Office may now share this view. For these reasons it is in my judgment doubtful whether mere openness to representations is sufficient. Many of the representations relate to specific applications to vary the restrictions, either temporarily or more generally and, as the terms of the letter dated 20 December 2006 to Mr Abu Rideh indicate, the need to consider the position of the family may still not be sufficiently appreciated.

Since the Secretary of State received representations on behalf of E, S and the children, the fact that they were not invited to make representations does not necessarily lead to the conclusion that the control order must be quashed. This is not a version of the argument, now generally discredited, that no remedy should be given because the opportunity to make representations would have made no difference. The point here is that the Secretary of State has received much information from those representing E and his family. In view of my conclusion that E’s control order amounted to a deprivation of liberty, and that in any event it was flawed because of the failure to consider the impact of the availability of the Belgian judgments on the possibility of prosecuting him for terrorist offence, it is, however, not necessary for me to decide this point.

Has there been a breach or potential breach of the rights of E’s children?

It only remains to consider Mr Singh’s argument based on Article 3. It is clear that there is a particular need to protect the welfare of children (R (P and Q) v Secretary of State for the Home Department [2001] 1 WLR 2002), that whether Article 3 has been violated depends inter alia on the age, vulnerability and state of health of the person, and that children are considered vulnerable: Selmouni v France [2000] 29 EHRR 403 at paragraph 100. It is also clear that a violation of Article 3 may be established without specific consequences being identified: Keenan v United Kingdom [2001] 33 EHRR 38 at paragraph 112.

In the case of E’s children, there is evidence of I’s bed-wetting and anxiety, although the evidence on the former is not consistent, and Renée Cohen’s evidence that the long-term impact on the children’s mental health is likely to be significant and detrimental. Mr Singh accepts that the evidence is somewhat speculative.

I have concluded that this is not a case in which the control order restrictions at present pose a risk of such significant impact on the children’s mental health that they are humiliating and debasing them and possibly breaking their moral resistance so as to constitute "inhuman or degrading treatment". The cases relied on by Mr Singh concern significantly different factual situations. In A v United Kingdom [1999] 27 EHRR 611 the court was concerned with a child who was severely beaten. The court stated (paragraph 22) that children and other vulnerable individuals are entitled to protection against “serious breaches of personal integrity”. The case of Mayeka v Belgium 12 October 2006 concerned the detention of a five year old girl, separated from her parents for two months in a centre initially designed for adults, without any measures for psychological or educational supervision or care by qualified staff. Those cases are far removed from that of E’s children. In those circumstances the position of the children rests on the submission that the interference with their Article 8 rights is disproportionate. Despite the need to be especially vigilant about the impact on vulnerable children, for the reasons I have given, I have rejected that submission.

Since the Applicant had no power to make a control order which has the effect of depriving E of his liberty, the proper course is, as it was in the JJ cases, [2006] EWHC 1623 (Admin) at [92-97]; [2006] EWCA Civ 1141 at [27], to quash the control order under the powers in section 3(12)(a) of the PTA. This is also the proper course in respect of the failure to review the prospects of prosecuting E in the light of the Belgian judgments. They only became available in November 2005 and were not fully translated until January 2006, but in view of what I have referred to as the continuing duty of the Secretary of State, it would be appropriate to quash the control order either under the powers in section 3(12)(a), or those (in respect of renewals) in section 10(7(a) of the PTA.

As in the JJ cases, I will stay the effect of the quashing order for seven days to enable the Applicant, if he is minded to, to appeal to the Court of Appeal. If an application for permission to appeal is made I would grant permission. The Court of Appeal can then consider the merits of continuing the stay in the light of the judgment and the grounds of appeal.

I determine this matter in favour of E. The control order made against E imposes obligations that are incompatible with his right to liberty under Article 5. It follows that the Secretary of State had no power to make the order and it must therefore be quashed.

I have also concluded that the Secretary of State’s failure to review the prospects of prosecuting E in the light of the Belgian judgments after they were received and translated means that his decision to maintain E’s control order was flawed and would have quashed the control order on this ground. Although I have doubts about the procedure used before renewing E’s control order, I do not consider that any of the other grounds upon which Mr Starmer and Mr Singh rely have been made out.