Secretary of State for the Home Department v AF (Rev 1)

AF is a dual UK/Libyan national, who was born in 1980 in the UK to a Libyan father and a British mother. Difficulties between the UK and Libya in the 1980s led the family to return to Libya. His mother could not settle there, and she returned to the UK where she still lives. His parents were divorced. AF spent most of his formative years with his father and sister in Libya. He and his father left Libya to come to the UK in December 2004, he said, because of a blood feud between his family and the Gadaffi tribe, and also to take advantage of better job opportunities. AF lives in Manchester with his father. He is divorced, but he has a fiancée in Libya. He has no children.

On 24 May 2006, the SSHD, with the permission of a High Court Judge, made a Control Order against AF pursuant to s2 of the Prevention of Terrorism Act 2005. He was then arrested, as were a number of other Libyans who now face deportation proceedings on national security grounds, but he was released without charge on 2 June 2006. The Control Order was served on him on that same day. It prevented him leaving his flat for more than 6 hours a day and contained other restrictions of a more or less onerous nature. Following the decision of the Court of Appeal in SSHD v JJ and Others [2006] EWCA Civ 1141, delivered on 1^st August 2006, the SSHD revoked this Control Order. He did this on 11 September 2006, when he made a further Control Order, which prevented AF leaving his flat for more than 10 hours a day; some other restrictions were also relaxed. This too was made after a High Court Judge had ruled that it was not obviously flawed. It was varied on 18 October 2006, and further individuals with whom contact was prohibited were added. AF is now in detention pending trial by jury on four charges of breaching his Control Order, by breach of curfew and possession of communications equipment.

I am not directly concerned with the first Control Order. Stanley Burnton J ordered proceedings relating to it to be adjourned pending the outcome of the appeal to the House of Lords in JJ and Others.

Under s2 (1) of the PTA, the SSHD can only make a Control Order where he has “reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity”, as defined, and considers it “necessary” to make the Order “for purposes connected with protecting members of the public from a risk of terrorism”. “Terrorism”, as defined, does not have to be directed in or at the UK or its nationals. The obligations and restrictions which s1 permits, and there is a wide range, can only be imposed if the SSHD considers them “necessary for purposes connected with preventing or restricting involvement by that individual in terrorism-related activity.”

The restrictions imposed by this Control Order, as it now stands, are:

The Control Order was accompanied by a statement justifying the obligations. Most of what it contained was at a rather general level. The tagging, residence and reporting conditions were designed to reduce AF’s ability to re-engage in terrorism-related activity without detection; the less time outside his home, the greater the reduction in the risk which he poses. The restrictions made it easier to monitor his movements and detect breaches. Tagging made it less easy for AF to abscond. Random checking of his presence permitted the curfew to be enforced along with other restrictions on what he could do at home. The restricted geographical area limited his capacity to visit extremists outside the area and reduced the risks of re-involvement. Restrictions on contacts restricted his ability to share his expertise and contacts and limited his ability to re-involve himself in such activities. Restrictions on the mosque to which he could go and on what he could do there limited his ability to communicate extremist views. The prohibition on the use of the internet and the limitation to the use of a land line limited his ability to communicate with extremists. The travel restrictions reduced the risk of AF travelling abroad to further terrorist activities; the banking restrictions reduced his ability to pass money to others for terrorist purposes. The requirement that he notify his employment restricted the chance that he would obtain work which posed a risk to national security.

This is a hearing under s3(10) pursuant to directions given under s3(2)(c). The powers of this Court on this hearing are to determine whether the decisions of the SSHD that he had reasonable grounds for suspecting that AF was involved in terrorist–related activity, and that a Control Order with the restrictions and obligations which it imposed were necessary, were flawed. The Court does that by applying the principles of judicial review. The application of that test was ruled upon by the Court of Appeal in SSHD v MB [2006] EWCA Civ 1140. The task of the Court is to consider whether the continuing decision of the SSHD to keep the Control Order in force is flawed as at the date of the Court’s decision and to do so by reference to all the material by then available to it. That decision is being appealed but I am bound by it. If a decision of the SSHD is flawed, the Court can quash the Control Order or one or more of the obligations, or direct its revocation or modifications to it; otherwise the Court has to order that the Control Order continue in force.

AF had also applied for a modification of restrictions under s7, which the SSHD refused. The Skeleton Argument on behalf of AF again raised those modifications although there was no further formal appeal under s10(3). Nonetheless no issue was taken with my jurisdiction to deal with those matters.

The issues which arise for determination are: whether the Control Order constitutes a deprivation of liberty within Article 5 ECHR, and so is ultra vires the Act; whether the powers in the PTA are so broadly expressed that the requirement for legal certainty to justify interference with ECHR rights cannot be met; whether the Order was made unlawfully as it was not made personally by the SSHD, but by a Minister of State in the Home Department; whether the SSHD had discharged his duties of review and consultation in relation to the possibility of bringing criminal charges for an offence related to terrorism; whether this hearing is fair in view of the fact that in this case there is no or very little material disclosed to AF for the purposes of challenging the Order, and if not whether a declaration of incompatibility with Article 6 ECHR should be made; whether reasonable grounds exist for suspecting that AF is or was involved in terrorist-related activity; if so, whether a Control Order is necessary; whether the SSHD had considered all relevant factors; and whether all of the restrictions are necessary or whether some should be modified in ways suggested by AF to ameliorate their effect upon him.

I should deal at the outset with one point raised on behalf of the Respondent. This is that the evidence, whether or not disclosed to him, could include some which might have been obtained by torture. This would have triggered an obligation to investigate that issue before it could be admitted. There is no such material in the case disclosed to AF. On 1 December 2006, following a directions hearing, Mitting J held, with the agreement of the SSHD’s advocates and the Special Advocates, that the legal arguments identified by the Respondent under this head raised no issue requiring such investigation in this case. So no material which circumstances suggest might have been obtained by torture, is in the closed case either.

The case for the Control Order in open is very short. It is comprised in three statements, the second of which was served in response to AF’s statements. AF came to the attention of the Security Service before his arrest in May 2006. It is alleged that AF has links with Islamist extremists in Manchester, some of whom are affiliated to the Libyan Islamic Fighting Group. The LIFG became a proscribed organisation on 14 October 2005 by statutory instrument made under Schedule 2 to the Terrorism Act 2000. (Where these individuals are appellants before SIAC and anonymity orders apply to them, I use their SIAC reference letters. I have made an order in these proceedings that they should only be referred to by the same letters. I have referred to some other individuals by letter simply because their names arise in this case, but no specific proceedings have been taken against them).

Originally only one alleged extremist individual, TT, to use his SIAC reference, was identified as linked to AF, but QQ (SIAC reference) and ZA (not a SIAC reference) were added later. All three are Libyan nationals. None of them are said to be members of the LIFG, although TT is said to be associated with some of its members, and QQ is said to be affiliated to it. It is not said that AF is a member of the LIFG.

AF said that TT was a friend of AF’s father and uncle and that they had lived near each other in Derna in Libya. AF’s uncle in Libya had asked TT if AF and his father could stay with him while accommodation was sorted out. AF had regular contact with him in the small Libyan community in Manchester. The SSHD did not accept AF’s assertion that the contacts were all innocent and devoid of any terrorist activity or discussion, and instead attributed part of their association to terrorist-related activities. He accepted that there was a close family friendship, but it was only mentioned in the SSHD’s second open statement. TT is currently in detention awaiting his appeal against deportation; AF is forbidden to have contact with him.

ZA is said to be one of AF’s closest associates. All that was initially said of AF in respect of this link was that AF went to London with ZA on a trip the purpose of which was possibly related to some form of terrorist activity. More was said in the SSHD’s second statement, after AF had given his explanation. AF said that ZA had to meet someone in a hotel and so he, AF, had taken the opportunity to go to London with him; AF had not been present at the meeting and they had gone shopping afterwards. In his interview with the police after his arrest on 24 May 2006 for suspected terrorist offences, ZAsaid that he believed that AF had been with him at all times, except for this meeting, when AF might have gone for a coffee. ZA said that he had gone to collect £14000 from a man in London which had come to him from his brother in Libya; this money was discovered when his house was searched. His wife’s version, that it was an inheritance from her father, had been invented to protect ZA’s benefits. The money was seized by the police and has not been returned.

AF said that they had then visited QQ, an old neighbour from Derna, for a meal and to go to QQ’s local mosque for Friday prayers. QQ had insisted that they come for a visit as was customary, when AF had contacted him in London. They returned to Manchester the next day. AF said that QQ had met him and his father at Heathrow Airport in December 2004, and had taken them to Manchester to stay with TT. QQ is alleged to be an influential figure affiliated to the LIFG; he now also faces deportation proceedings. AF is forbidden to have contact with him.

AF described ZA as a good family man. They had connections only through one particular mosque and through playing football for the same team drawn from Libyans living in Manchester. As AF had hurt his leg playing football, ZA drove him from football to the mosque. The association was entirely innocent, according to AF. No criminal, Control Order or deportation proceedings are being taken against ZA. Nor was he one of the six with whom AF was forbidden to have contact. The Security Service witness, Witness L, would not explain why in open.

A written request for further particulars of the SSHD’s case was largely met with the reply that no further details could be disclosed to AF. No further information was gleaned by Mr Otty QC, in cross-examination of Witness L, for that same reason.

AF’s written evidence consisted, first, of nine prepared statements which he provided to the Greater Manchester Police during his various post-arrest interviews from 24 May to 1 June 2006. The Security Service had still not obtained from the police, despite requests, the questions asked at those interviews. AF also produced two written statements in November and December 2006 and a third to respond to SSHD evidence during the hearing. The last three were intended to deal with the impact on him of the various Control Order obligations, but in so doing they also raised a number of issues relevant to the national security case. He provided a fourth statement on 19 March 2007, after the judgment had been sent to the Security Service for vetting, to confirm what his counsel had said on instructions during the hearing.

Throughout, AF has maintained that he has no involvement in any terrorist activity and that his actions and contacts are wholly innocent. He did not associate with terrorist or fundamentalist groups and condemned all violence. He pointed out that throughout the interviews with the police no specific allegation of wrongdoing was put to him. I have referred to some of the material already.

His background is partly summarised in the opening paragraph of this judgment. Both he and his father are well-educated men, his father was a civil pilot; he has a banking degree from Derna in Libya and wished to become an accountant in the UK. He married after he arrived in the UK, but was now divorced. AF has a fiancée in Derna but her application for a 6 month’s visitor visa has recently been refused. AF and his father managed to rent a council property in the Old Trafford area of Manchester – his father was hoping to move out, to make way for AF’s fiancée. His mother now lives in the north of England and he had visited her once a year between 2000 and 2004, when he settled here. His sister now lives in Paris with her husband and two children, but was visiting England to see about permanent settlement. In May 2006, he was studying an English course at one college, having already studied similar courses elsewhere. He met people of all nationalities at the mosque, at college and in the course of his regular football games. He had had sporadic work.

He described himself as a “religious Muslim”, who attended two mosques and taught Koranic studies to young children at a third. He went to London to attend the protest about the anti-Islamic cartoons. He was interested in the well-being of other Muslims, regularly consulted “official muslim websites”, and disagreed with the situation in Iraq as did many others.

AF explained a number of items found during the search of his property. He said of a “selection” of mobile phones and sim cards that he and his father had used them over time, and a number no longer worked.

AF spoke of a visit to Egypt in December 2005, from which he returned on 6 January 2006. He had a Libyan friend, whom I shall call FN, whose problems in Libya had caused him to move to Egypt. Derna was close to the border, and his business had made him a regular visitor to Egypt. They could meet in Egypt without difficulty. He paid for the trip through savings from benefit, and gifts from his father and TT. They met in Cairo and travelled to Alexandria. They both agreed that FN should return to Libya. The trip had no terrorist purpose.

The need for the obligations was described by Witness L and by Mr Jones, the Home Office official in charge of the team which implements the Control Order system and who now chairs the Control Order Review Group or CORG. AF described the conditions of the Control Order as stringent and he was worried that he might be emotionally damaged in the long term by them. The electronic tag made it look as though he had done something wrong when he had not; it was a degrading restriction on his liberty. It chafed his ankle, and went off with a disconcerting bleeping noise if contact was made with its face. He felt that he could no longer clean himself as properly as required of a Muslim. He was a keen swimmer but now felt unable to go swimming at the leisure centre within his area, because the tag was so visible and would make people think that he had done something wrong.

He was frustrated by the obligation to telephone the monitoring company when he first left and last returned to the flat during the period he was allowed out, because he had had to wait on many occasions for ten minutes or even longer to speak to someone, as he had to. He found that obligation degrading anyway. He was visited by the police at unexpected and sometimes anti-social hours, once or twice every ten days. The visits last about five minutes on average and although the police were polite and considerate, their searching through his belongings, and more so through his father’s, was degrading. The police presence was visible to his neighbours, and they came in marked cars, which increased their suspicion and his fears.

The process of providing the necessary identity details had meant that his friends were unwilling to come to his flat to visit or even meet with him in his area for fear of what might happen to them. He said, in his second statement of 18 December 2006, that he no longer had friends to the flat after police had directed that visitors to the flat, who were dropping him and his father off, had to provide their names and addresses. They now feared that they too were under investigation. His friends and associates were unwilling to have anything to do with him, even out of his flat, or in his flat outside curfew hours, because they were afraid that they would be suspected of terrorist activities, and that the tag recorded their conversations. He and his father now had no relationship with their neighbours. The tag and other limitations on where he could go and the depression which this had induced had led him to lose contact with the rest of the Libyan community, and he remained in the flat, depressed and apathetic, for most of the day. There had previously been a steady stream of visitors. To some extent he felt ostracised by the Libyan community because of the Order, and friends feared that association with him could lead to risks for their families in Libya from the Libyan Government. The increase in the hours permitted outside the flat had made very little difference as he had nowhere to go; the area around where he lived was rundown. He only had one Libyan or Arabic speaking friend who lived in the area in which he was permitted to go.

He had been refused permission three times by the SSHD to go to visit his mother. His sister and her family would not visit him at his flat because his young niece had been there when he was arrested in May 2006, scaring her badly. This meant that he had no association with anyone but his father, who stayed in with him out of concern for AF’s mental wellbeing, and that strained their relationship. They shared a two bed roomed flat with basic facilities but he was not allowed computer equipment.

The prohibition on the use of the internet had deprived him of the means of keeping in touch with world events and of continuing his education in another form. He could no longer email his friends and family in Libya and had to use the landline which he found expensive. This affected his relationship with his fiancée. He could not seek out job opportunities. His father too had been deprived of these facilities. All this added to his sense of isolation. Friends could not understand why they had to turn off their mobile phones in the flat, and so they did not visit.

There were four other individuals in addition to TT and QQ with whom contact was forbidden; they had been arrested at the same time in May 2006 and face deportation proceedings. ZA was not one of them. He said that he had had no dealings with three of these men and had never met them; one he had seen at the mosque. But by an amendment to his first statement and in effect to the statements which he placed before the police, he said that he had also exchanged greetings with the others at the mosque. AF said he usually knew people by nicknames and had made the changes as soon as he received a translation of the statement.

Although the area to which he is restricted is some 9 sq miles, and includes significant towns, and is proposed by the SSHD to be extended to include parts of another, his flat lies to the extreme south east of the area, at its very edge. The area to which he naturally would gravitate is the area which he previously used. AF thought that the M60 split the area in a way which made more of it inaccessible. AF contrasted the accessible but expensive designer shops with the City centre shops he used to frequent, and the area where the Arabic shops and restaurants are.

He could not go to see his friends who lived outside the area. He could no longer attend courses as he had done; there were no places at college, the only institution within his area for the study of English. Another was outside this area. He had been refused permission to sit exams in the summer where he had been. This hindered his employment prospects. The place at which he had had part time employment was outside his now permitted area.

He could not socialise with his friends in a football team of Libyans who played other Arabic speaking teams. The parks within his area were of no use because he could not play football alone, and as his friends would be concerned lest the same happen to them, they would not come to his area to play football. But if the area were extended to include the areas where they lived, to the south east of where he lived, that would be welcome.

He could no longer attend either of the mosques he used to because both were outside his area. His inability to go to the nearer mosque which was not far outside his area was particularly troubling; he used to go five times a day for twenty minutes. That had been a mixed mosque with many Arab speakers whereas the one mosque to which he could go was primarily an Urdu speaking mosque. He did not speak Urdu, and had lost his ability to practise his religion to the extent that he would have wished. He could not attend mosque where the Libyan community went for Friday prayers, which was a focal point for the Libyan community.

He could no longer see his Arabic speaking GP, as he was outside the area, and that meant that his health was suffering. He did not feel comfortable making arrangements to see a non Arabic speaking doctor. He has limited English.

All his identity documents had been seized when he was arrested; they had not been returned which had created difficulties, now resolved, when proof of identity was needed for drawing benefit or for banking. He could not visit his sister in France, nor his fiancée, nor could he go to Mecca. He could not see visitors off at the airport. He only ever had the one bank account. He is now unwilling to send personal letters to his friends and family in Libya.

The modifications most desired by AF were a reduction of the curfew to between 10pm and 7am to enable him to attend early morning or evening educational courses. He would wish to have the area enlarged so that he could go to a larger college. He would not seek to go to one of the mosques he used to attend. He would still be unable to seek the security work he had had because so much of that was late at night. He also wanted the area enlarged so that he could go to the areas of Manchester where his friends lived, and to the park where he used to play football. He would wish to return to the nearer Mosque, as he found it difficult to integrate with those at the mosque to which he was permitted to go. He would like permission to go to Paris to visit his sister, although he recognised that that would be unlikely but he considered that he ought to be able to visit his mother. A letter saying that such modifications would be sought from the Court was sent to the Treasury Solicitor on 22 December 2006.

Dr Snowden, a consultant forensic psychiatrist, produced a report dated 14 December 2006 on AF’s mental health. AF had begun to experience depression soon after his arrival in the UK as he was missing his friends and family in Libya, and realised that he could not speak English adequately. He was prescribed anti-depressants and his anxiety continued through 2005. He had fleeting thoughts about suicide but had not in fact harmed himself. By November 2006, when interviewed by Dr Snowden, he appeared to be in better spirits, was taking an anti-depressant, and was neither agitated nor anxious.

Dr Snowden was of the view that unhappy childhood experiences resulting from the separation from his mother and difficulties adjusting to a new life in the UK had created a depressive episode which had resolved itself by the time of his arrest in May 2006. AF was prone to emotional disturbance with depressive symptoms. Negative events could trigger a relapse even without a Control Order. But the restrictions of the Control Order had triggered a relapse of a second mild depressive episode; AF’s depressive illness was not severe or even moderate but was significant enough for regular prescriptions of anti-depressants. Family visits particularly from his mother had helped. No additional treatment was necessary beyond that which he was receiving. The condition would most probably change if the restrictions were lifted but was unlikely to worsen. Even if this episode were resolved, there was a high risk of a third episode in response to a difficulty in life.

Mr Jones pointed out that AF had a television with access to Al Jazeera, and radio which helped keep him in touch with the outside world. His mother, sister, and her two children were already approved visitors and so could visit him at any time without further permission; those requests had been granted within a day of their being made. Friends could visit without prior approval or providing details if they visited outside curfew hours, and he was free to meet them outside the flat unless they were one of the few with whom contact was prohibited. It was not clear why his friends would be willing to meet him if his area were extended but were not willing to meet him or play football with him in the current area.

Visits to his mother had been refused because it would mean AF moving outside his area and an overnight stay would involve even more relaxations; she was able to visit him at any time. It was not the Control Order which prevented the fiancée coming to the country. She had been refused the visitor’s visa she had asked for, because it was thought that she would not leave the country.

Mr Jones pointed out that the monitoring records for December 2006 and December 2007 showed that AF had regularly left the flat between 12 midday and 6pm. AF said that the reason for this relatively short period outside was that he had been recuperating from a knee operation due to be followed up in February. This response does not sit easily with the contention that he has nowhere to go.

AF had been refused permission to attend the English course examination in June 2006 because he gave inaccurate information about the class times and the college had told the SSHD that he had become an increasingly infrequent attender. AF said that as the request made on 14 June had not been refused until 23 June, there was no opportunity to appeal against it. He denied only having been an infrequent attender but he had missed some lessons because he was working as well. It was not until November 2006 that AF had said that he wished to pursue any further course, and while the English classes were full for the current academic year at one college, it held classes at a school which was within his area.AF pointed out that that college was quite small compared to others and was outside his area anyway; he would also have needed identification papers in order to enrol. The School only held English language courses for two hours a week, whereas others taught for 13 hours per week.

AF had never made any request for a variation to his restrictions in order to work in security or accountancy, although the effect of the restrictions would be to limit his employment opportunities. Some other controlled persons had work. He could also seek work through a Job Centre as he could not use the internet, although he had not shown any great interest in obtaining employment. It was accepted after cross-examination that the Job Centre within his area had closed in November; Mr Jones had not known whether there was one inside the area. There was one outside but close to his area; the one he used to go to was outside his area.

Mr Jones said that there was a Yemeni community within the area but could not say where it was centred nor how large it was. There was some speculation about the student population of his area.

One variation had been permitted so that AF could visit his Arabic speaking GP on one last occasion; no subsequent concern had been raised by AF about finding a GP until his statement in these proceedings of 13 November 2006. Salford PCT had Arabic interpreters available within his area. AF had not been aware of this but said that he felt uncomfortable dealing with a doctor he did not know through an interpreter he did not know. AF had been permitted to leave his area to visit the hospital. On these visits he was required to go by minicab, or be driven by his father. AF had also been permitted to leave the area to attend his solicitors’ offices on a number of occasions.

The SSHD had however refused a number of other requests for variations, none of which have been the subject of an appeal: he had refused a reduction in the curfew hours to permit a greater length of time out of doors during summer hours. AF was initially refused permission to leave his area to visit his bank to obtain a new bank card because the SSHD said that that could be done over the telephone; that visit was eventually agreed to in principle. A variation in hours for Ramadan was refused because insufficient information was provided, and he was refused permission to visit and stay with his mother for Eid, and on other occasions. He was again refused permission to attend the college where he had hoped to sit examinations.

The problem with chafing by the tag had not been raised before either with the SSHD or with the monitoring company. The tag should be fitted loosely enough for the skin to be washed after sliding the tag up the leg. It could be worn when swimming and was easily concealed by clothing. If the box were placed on a piece of furniture which was then moved, it would be triggered; it should be kept on something immovable. The monitoring centre was manned all the time, calls were answered by an operator and immediately transferred to a supervisor. The only delay in answering would be if the supervisor were on another call. Certain details of what AF said about malfunctions and visits to test equipment were disputed or qualified. No breach would be recorded if a signal was sent without any deliberate action by the controlled person, though the tag would bleep briefly if its face were knocked accidentally by the wearer.

Searches were deliberately irregular although unsocial hours were not the norm. Two officers were necessary for their safety. They tried to send the same officers so that some rapport was built up. The police had only seen one of AF’s neighbours once on a visit.

The SSHD was willing to enlarge the area so as to include an Arabic speaking mosque at the western end of the area, but AF said that that was not realistic. It would take about 45 minutes to get there and back. He would normally go to a mosque five times a day between 6 am and 6 pm and four of those prayer times occur between 12 midday and 6 pm; at present he only went three times a day. The nearest mosque was by contrast only five minutes walk away.

Witness L, was able to give only limited further explanations in open as to the rationale for the boundary to the area and other restrictions. The restrictions should be regarded as interlocking and supportive of each other. The Security Service suggested which ones were necessary from a national security point of view; past templates were looked at. Each of the restrictions was necessary in his view. The curfew reduced AF’s ability to re-engage in terrorist activities, and made it easier to monitor compliance with the other obligations. Loosening the restrictions would increase the risk. The area had been defined to protect national security as best they could while still leaving AF an area to live in. Its delineation was clearly deliberate. Whether there were adequate facilities within it was for the Home Office. The different approach to visitors inside and outside curfew hours was the result of striking a balance between national security and AF’s private life; it was not foolproof but it would be disruptive. There was nothing specific which he could say in open about the mosques or colleges or communications beyond what was in the statement of reasons. The question of a visit to France had not been explored with the French Government. He did not know whether anyone in the Security Service had been consulted about visits to his mother.

Mr Jones accepted that describing a purpose of a restriction as being to make enforcement “easier” could give the wrong impression of how the matter was viewed against the requirement that the obligation be necessary. What was meant that it would improve the effectiveness of another obligation. The fourteen hour curfew was necessary to restrict re-engagement and contact with extremists, although there was no open allegation that the reduction in curfew since the revocation of the first Control Order had led to any re-engagement. The shorter the curfew the greater the risk. There was a continuum of risk rather than a step change at any particular point, although the hours of darkness made certain forms of monitoring more difficult. They had considered a twelve hour curfew in AF’s case but the Security Service had thought that eighteen hours were necessary and so fourteen was proposed as the maximum which it was now thought would be lawful. He was aware that there would be reluctance on the part of friends to visit but he thought that AF overstated the problem: he could meet those who were reluctant to come to the flat outside his curfew hours.

There was no particular risk associated with the larger colleges as such, but it was outside AF’s area and attendance could increase the risk of extremist contacts. There was no risk about AF going to the Arabic speaking doctor as such; the risk was what he could do en route and the degree to which that was controllable. The geographic area was looked at in general terms including job opportunities: there would be a wide range in the area, but this would be deduced from the size and nature of the area rather than from any specific consideration. It had the facilities of a reasonably sized urban and suburban area. Public transport was available through the area. Mr Jones accepted that there would be some impact on the contact with AF’s fiancée but thought that it would be limited. There were no objections to mosques if the Security Service was content but it was known that extremists took advantage of mosques to meet.

I very broadly accept AF’s description of the effect of the Control Order on him, and of his reaction to those effects. He overstates the impact of the area restriction, not least because it is clear that even with his knee injury he left the flat for several hours a day. He also is inconsistent in ascribing a chilling effect to the Control Order on the willingness of people to come to his area where they can meet without prior approval outside curfew hours, and seeking an extension to his hours and area while still subject to a Control Order, the chilling effect of which on meeting without prior approval would continue.

I believe that he is exaggerating his enthusiasm for work and study, and the impact of the Order on his relationship with his fiancée. AF provided further details of his past attendance at various courses after the close of submissions in response to points made by Mr Eicke. I did not think that I should ignore it, untested though it is and provided via instructions in response to inconsistencies or gaps to which Mr Eicke’s submissions properly drew attention. A fourth statement confirmed what had been said. What AF said suggests to me the fairly intermittent undertaking of courses, and he has accepted that he missed some of his most recent course because he was working. However, essentially the effects of the Control Order as he describes them are the effects which its restrictions are intended to produce.

Mr Otty asked for a ruling on the scope of cross-examination which I would permit in order for him to advise AF whether to give oral evidence. Mr Otty wanted questions excluded which might suggest that AF had given grounds for the suspicion that he had been involved in terrorist activity, and that he had breached his Control Order; he wanted them limited to the impact of the Control Order on AF, as had been attempted in relation to the Controlled Person in another Control Order case. Mr Otty also contended that it was unfair for his client to be questioned about matters which, unknown to him, could expose conflict with the closed material, of which he was unaware and unable to explain. He also sought a ruling that no collateral use be made of any answers which AF might give. Mr Eicke for the SSHD refused to give him any undertaking limiting the scope of his questions.

This case is different from the other Control Order case referred to by Mr Otty; that case involved someone with a history of mental instability upon whom the Control Order might have had very particular effects which required to be explored but that could largely be done in a way which would not trespass upon the more sensitive issues to any significant extent. Here, and I accept what Mr Eicke told me, the issues about the impact which the Control Order has been having on AF and questions about what he has been doing, where and with whom, his contacts and the modifications which he seeks, overlap to a very considerable extent. Those questions are tied up with the allegations that he has links with extremists. They are also related to the closed evidence.

I ruled as follows. I could not forbid collateral use of any answers which he might give, and in particular I could not order that they should be excluded from any criminal proceedings. Their collateral use and their use in any criminal proceedings would be a matter for the Court dealing with those proceedings to rule on; if they were admissible it would not be for me to exclude them in advance and if they were inadmissible the issue would not arise. I could not rule that they be excluded from other proceedings against others, still less that they should not be used for investigative purposes.

I concluded that it would be possible to police the questions to some extent so as to exclude any which suggested that there had been breaches of the Control Order, and to prevent those which suggested that he was guilty of the offences for which he is yet to stand trial. It would be very difficult however to prevent those which suggested that there were reasonable grounds for suspecting involvement in terrorist offences. Even if an attempt were made to limit cross-examination to the impact which the Control Order was having, the suggestion that he uses that freedom which he does have to contact people, rather than being house bound and largely devoid of human contact, could readily become an allegation that he was involved in terrorist activity and could do so by reference to material the significance of which he would not know.

If AF were to give evidence subject to such limitations, and questions which were important to the Court were not answered because they might incriminate him, it is difficult to see how the Court would be much further advanced in its understanding of what he had to say about the case against him, or the more able to assess his credibility. The exercise would not be of obvious value if seemingly probing question were not answered, except where it obviously advantaged AF to provide an answer, the truthfulness of which could not then be fully explored. A cross-examination attenuated at AF’s choice would add little weight to his evidence. Even probing the cause and extent of his depression might not be effective without examining what it is that he felt restrained from doing and with whom.

It might well be difficult for the Court to do more in those circumstances than to draw no adverse inferences from the way in which AF gave evidence; but it would not be much further advanced, if at all, in understanding his case or in assessing his truthfulness. That was of course a judgment for AF to make upon advice. I could not say in advance that AF would give no answers which contradicted closed material, upon which conflict a judgement would have to be formed. It would be wrong simply to ignore any conflict just because AF might not know of it. Nor could I say that, if an answer were given which suggested reasonable grounds for suspecting that AF had been involved in terrorist activities, I would not take it into account and explain in open what its significance was, if that could be done.

However, if AF were to decide not to give evidence I held that I would not draw any adverse inference from that, largely for the reasons I gave in Ajouaou, A and others v SSHD 29 October 2003, the generic Part 4 ATCSA SIAC judgment: briefly, the standard of proof upon the SSHD is not high, and he must have established his case to that level before there is anything which calls for an answer, and he cannot reach that stage by reliance upon AF’s silence or refusal to answer questions; nor does AF know the significance of the questions being asked where they may arise out of closed material and may seek to lay the groundwork for a contradiction which he cannot deal with or even know about, unless he has been fortunate enough to anticipate the point. So his answers might be unwittingly incomplete. And it is clear here that the essence of the case is in the closed material; he does not know what the SSHD’s case against him is. However, as was pointed out in that SIAC decision, the absence of cross-examination may affect the weight given to the written statements of AF, and it certainly means that there is no further evidence to rebut what the SSHD says. But that was always likely to be the position, in the absence of a detailed account of his daily life and contacts, in view of the extent to which the case for this Order has not been disclosed to AF. AF decided not to give oral evidence.

The first issue which I consider is whether the degree of restriction is such that it amounts to a deprivation of liberty under Article 5 ECHR or whether it amounts to no more than a restriction on movement. If it is the former, the Control Order is outside the powers of the Act and must be quashed. The relevant principles have been considered in a number of cases recently in relation to Control Orders: by Sullivan J in JJ and Others v SSHD [2006] EWHC Admin 1623, approved by the Court of Appeal in [2006] EWCA Civ 1141, and by Beatson J in the very recent decision in SSHD v E [2007] EWHC Admin 233. The parties made further written submissions on this decision. I adopt what Beatson J said about the principles in paragraphs 193 to 242.

“Deprivation of liberty” within Article 5 has its own meaning. Freedom from arbitrary detention by the authorities is of fundamental importance. The distinction between deprivation of liberty and restriction on movement is one of degree or intensity and not one of nature or substance. In judging whether a case falls on one side of the line or the other, 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.” I quote, as did Beatson J, from Keene LJ in SSHD v Mental Health Review Tribunal and PH [2002] EWCA Civ 1868.The cumulative effect of the various restrictions must be examined.

Both parties used the decision of the ECtHR in Guzzardiv Italy (1980) 3 EHRR 333 as the principal guiding decision on the facts. This is one of a number of cases concerning special preventative measures taken by Italy against suspected dangerous Mafiosi. Guzzardi was required to leave his home and live on an island off Sardinia. The place of residence was specified; he had to report to the authorities twice a day; he was subject to a curfew between 10pm and 7am and barred from night clubs, bars and public meetings (more as a matter of form than because of the liveliness of the island); he could not associate with criminals or persons subject to preventative measures (although he could scarcely avoid the latter); he had to inform the authorities of long distance telephone calls which he made or received. He was there for seventeen months. Compulsory supervised residence away from his home town was not the basis for the Court’s holding that Guzzardi had been deprived of his liberty. The concrete situation which he faced in that particular place was important.

He had to live in a small room with his family, when they were permitted to be there. Sometimes for periods of 30 to 60 days, he was able to use one of the two family flats. His room or the flat were not expressly subject to search. Many of the buildings in the hamlet where he lived were in a state of disrepair. He did not have access to the principal village on the island where most of the small permanent population lived, and they did not visit the hamlet where he had to live. He could only move freely around an area of 2.5 sq kilometres. He had few opportunities for social contact outside his near family, others subject to the same regime and the supervisory staff. Visits to Sardinia, when permitted, were strictly supervised. Breaches of the restrictions could lead to punishment. The manner of implementation of the law had led to detention akin to that in an open prison. No one factor taken by itself would have led to the conclusion that he had been deprived of his liberty but the accumulation of factors showed that that “on balance” was the effect.

In Ciancimino v Italy (1991) 70 D&R 103, a requirement to live in a commune with a population of 1500, subject to a curfew lasting from 8 pm to 7 am, with a reporting requirement and provision for daily checks on his presence at home and some at random hours of the night (reasonably, thought the ECtHR, in view of the preventative nature of the restrictions) did not lead to a deprivation of liberty. Subject to those restrictions, Ciancimino had lived like the rest of the commune. The restrictions initially intended to last four years had endured for nearly three years before the restrictions were lifted, leaving only parts of Sicily as prohibited areas.

Like Sullivan J in JJ and Others and Beatson J in E, I did not find the assistance in Trijonis v Lithuania (17 March 2005) which Mr Eicke for the SSHD sought: it is not clear from the facts of the admissibility decision that there were any restrictions other than a curfew of 12 hours on weekdays and 24 hours at weekends, and in particular whether there were any when he went out to work. This is the longest curfew held not to be a deprivation of liberty. If 14 hours a day 7 days a week represents some roughly equivalent curfew to that here, AF faces significantly greater additional restrictions.

Sullivan J held in JJ and Others, and the Court of Appeal agreed that the restrictions on JJ and the others clearly amounted to a deprivation of their liberty: they were single men all but one of whom was required to move to accommodation and remain in areas with which they had no previous connection, and where they were subject to an eighteen hour curfew (4 pm to 10 am), tagging, and a prohibition on unauthorised pre-arranged meetings or unapproved visitors to the residence. The residences were single bedroom flats with the usual facilities but the men were not allowed access to the communal areas during curfew. Unlike most of the other “curfew” cases before the ECtHR, their flats were subject to searches as the police or other authorised person thought fit. The men were limited to geographical areas which varied between 12.7 and 62 sq miles and which had a range of shops, open spaces and health care facilities. There was at least one mosque in each area which the individuals could visit but the number was limited by the area. The other restrictions were similar to those which AF faces, including the use of the internet and mobile phones.

In concluding that this set of restrictions clearly amounted to a deprivation of liberty, Sullivan J pointed not just to the curfew but to the effect of the two groups of restrictions which applied when the men were in the residence and when they were out. When in the residence, the residence was liable to random search, visitors were not permitted unless previously approved after their details had been submitted to the SSHD, which had a “chilling effect” on the prospect of visitors, and they were not able to use the internet or certain common forms of means of communication. When outside the residence, apart from the geographical area limitation, they could not meet anyone by prior arrangement without approval being obtained in advance, and they could not attend any meetings other than at the approved mosque. There was overall less freedom of association than would be enjoyed by prisoners in an open prison. There was no appeal mechanism directly available, short of seeking a modification to the restriction, against the refusal of an SSHD approval required by the restriction. The totality went far beyond what the ECtHR had regarded as a restriction on movement. Even by itself the eighteen hour curfew would have been a deprivation of liberty. Sullivan J also took into account the fact that the individual faced the prospect of restrictions of this nature indefinitely, although the SSHD had an obligation to keep the Orders under review.

Beatson J held that E had been deprived of his liberty in the following circumstances: E was a married man who was required to live at his home address with his wife and children. He lived in an area with which he was familiar and in which a number of family members lived. He was subject to a curfew from 7pm to 7am. With limited exceptions, approval following the provision of identity details was required for visitors to the residence. Pre-arranged meetings with an individual and attendance at pre-arranged meetings other than group prayers at a mosque were prohibited without the SSHD’s prior approval. There was no geographical area to which E was limited, nor was there a restriction on the mosque which he could attend. There were no named individuals with whom association was prohibited. E was tagged and required to report to the monitoring company as is AF; the search, the communications equipment restrictions and the banking restrictions were the same. He was not required to hand in his passport or travel documents nor was he prohibited from going to ports and international stations. He merely had to notify the SSHD if he intended to leave the country.

Very limited weight was given to the effect which the Control Order had on E’s mental health in this context and the impact of the restrictions on E’s wife were not material to this issue. E had however been detained under Part 4 ATCSA 2001 from December 2001 to March 2005, whereafter he was placed under this Control Order; so he had been subject to preventative measures for over three years when the Order was made and for five years at the date of the hearing. There was thereafter a strong probability of renewal for further periods.

E was significantly less restricted and socially isolated than JJ and the others; there had been teething problems with certain approvals but on the whole requests had been responded to in a reasonable time. What to Beatson J was of particular importance was the fact that E was subject to the same control over visitors to his home and meetings outside his home as the controlled persons in JJ and Others. E’s home was also subject to spot searches. This was more intrusive than what Guzzardi had to face and was more intrusive than a normal “doorstep” bail condition.

In paragraphs 240-242, Beatson J said:

“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. 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.”

He concluded that although E’s case was more finely balanced than the JJ cases, the cumulative effect of the restrictions did deprive E of his liberty.

Although it is necessary to examine each case on its particular facts, and to heed the warning in R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 [2006] 2 AC 307 against transposing the results of one Strasbourg case to another set of facts since its decisions are fact sensitive, some consistency of approach is necessary as to what, on cases less clear and more finely balanced than JJ and Others, constitutes a deprivation of liberty, especially as there are a number of fairly similar Control Orders to be dealt with.

What is brought out very clearly from JJ and Others and from E is the need to look at the cumulative effect of the restrictions. The duration of the curfew, supported by permanent tagging and twice daily reporting to the monitoring company, needs to be considered with the restrictions which are placed on the individual when he is at home during the curfew hours. I regard the most significant additional restriction upon the individual when at home as being the restriction on receiving guests without prior approval by the SSHD; this involves for them a quite intrusive process which can readily be understood as inhibiting their willingness to visit. Indeed that would be part of the object of the obligation. The restriction on the right to use certain common modern forms of communication is to my mind less important by itself as a restriction on liberty. But the means whereby those obligations are enforced includes the right of the police and others to undertake random searches, which can also enforce the prohibition on unauthorised visitors and the curfew itself. That right and its use are a further significant restriction on liberty. This combination of restrictions in the home goes beyond those which the ECtHR has considered in curfew cases.

These restrictions have to be seen with what can then be done without restriction when an individual is out of curfew. There may be a restriction on visitors to the home; it does not apply in this case. There may be restrictions on pre-arranged meetings and attending other meetings without consent, which operate as very significant restrictions; they do not apply in this case. With such restrictions, the absence of a geographical limitation may be less valuable to the individual. The degree to which a geographical limitation is more than a restriction on movement by itself rather depends on the area permitted and the area excluded. The restriction on the use of certain communications equipment may prevent various normal activities. The degree of restriction outside the home or outside curfew hours may mitigate or worsen the overall accumulation of restrictions. The past duration and probable future duration of control is relevant too.

Turning to the facts of this case, I start with the fourteen hour duration of the curfew. This is the most important aspect, and not just because it is the period for which AF is physically confined to his flat. It is also the period for which the restriction on visitors without approval applies, and during which random searches to ensure compliance with the curfew and communications equipment restrictions occur. This is when the effect of that latter restriction is most likely to be felt, apart from any employment or educational needs. Of course it is important that AF is still in the flat where he was living and that he lives there with his father; he has not been moved away or separated from the relative he knows best in the UK. If the curfew were by itself the only significant restriction inside or outside the flat to which AF were subject, the decision in Trijonis would support the contention that there was a restriction on movement short of a deprivation of liberty. But here it is not the only significant restriction, and the further restrictions, especially on the presence of guests without prior approval, make it a more finely balanced case as to whether those restrictions in combination amount to a deprivation of liberty. Once the period of curfew reaches let alone exceeds twelve hours a day, the scope for further restrictions on what can be done during those hours of curfew without depriving someone of their liberty is very substantially reduced.

Of course, it may be that even if there were a shorter period of curfew and no requirement for prior approval of guests during the curfew, there would still be reluctance on the part of AF’s friends to visit him. This is what AF says would happen because of their reluctance to visit his home when the restrictions come off outside curfew hours, and because of their reluctance even to meet him in the area to which he is limited outside curfew hours. However, the fact that such changes might well not materially advance his social life is not a basis for saying that AF, objectively, may not have been deprived of his liberty by the restrictions. Nor, if such changes failed to permit the resumption of his normal life, would it mean that he remained deprived of his liberty. The Control Order may make communication with his fiancée slower and more expensive, by letter and by landline; but it is not prevented. The Order does not prevent her visiting him; the claim that if AF cannot learn English, he cannot obtain work, and if he cannot obtain work, he cannot satisfy the requirement that he maintain her were a marriage application to be made under the Immigration Rules, is a fairly indirect impact.

Outside the curfew hours, AF is able to meet almost whom he likes either in his home or outside it provided he remains within the permitted area. I do not regard the fact that there are six people with whom he cannot meet as material. He is at best on nodding terms, he says, with four and the two he knows better are in immigration detention anyway. Even out of detention the prohibition on meeting them would not be a significant feature.

The real restriction outside curfew hours lies in the extent of the permitted area. It is not so much that it is of an insufficient size to provide for the necessities and many of the conveniences of life for many people. It has shops, parks, people, a mosque, some educational establishments, job opportunities although the Job Centre in it has closed, and public transport through it. There is public transport from where he lives through his area. Nor does a significant problem arise simply from the fact that AF’s flat is at one extremity of it. The real restriction lies in the fact that it has been delineated so that it cuts AF off from the area to which he used to gravitate, which would also be the area to which anyone living where he does would naturally look for most of the amenities of life. Just as it is important in the judgment required for Article 5 purposes that an individual may live in the home where he was already living and may therefore be able to enjoy the area and contacts which he already knew, so too it is important that he may be cut off from that area, even though he may live in the same home.

I accept that the fact that AF is subject to a Control Order may have a chilling effect on people coming to the house at times when no such approval is necessary or on meeting him at all outside his flat. He says that his friends would not meet him in his permitted area, but he implies that they would meet him as a controlled person in a broader area. I think that this shows him to be overstating the chilling effect of the Order, at least on legitimate activities. It is also the consequence of the choices made by his friends, not to visit or meet him as a controlled person even when no approvals are necessary. I do not know whether any of his football matches with the Libyan team could be played in his area; I shall assume that they cannot be. But he is not prevented from playing football with his friends in his permitted area on a less formal basis, and needs no consent to do so. I recognise that he is unwilling to go swimming because of the tag.

The area from which he is excluded covers all three mosques to which he used to go and he in particular is prevented from going to the mosque nearest to where he lives. This inhibits his attendance at prayers in the mosque five times a day; he is however able to attend a mosque three times day which he regards as the minimum. The only mosque in his current area is one at which he understands only those parts of the service conducted in Arabic, and he is not able to participate in its social life. This is a serious restriction to him. An extension is proposed but not made, and would still leave a real limit on the way he practises his religion.

He is also prevented from going to any significant educational establishment where he could study English. They are all outside his area. He is excluded from the areas where he used to met and socialise with Libyans and other Arabs. He is unable to see his preferred doctor. The Job Centre is outside his area. The array of shops and facilities in even part of the City centre are excluded. The restrictions are not mitigated by any ready grant of permission for individual trips for social purposes, although certain visits to his lawyer and hospital have been permitted. The requirement for permission is itself relevant to the issue. Consents for visits outside the area to his mother have been refused. This is not a case in which a “dialogue” with the SSHD has mitigated or could mitigate significantly the restrictions, and it is not a mechanism which can readily convert a deprivation of liberty into a restriction on movement, relevant though it may be to the necessity for or detail of a particular lawful obligation. The restrictions on his going to ports or stations which lead to international services and the requirement to surrender and not obtain travel documents are not significant as contributors to a deprivation of liberty; however almost all changes which he sought in these proceedings were opposed by the SSHD.

The question of whether the Control Order amounts to a deprivation of liberty cannot be answered solely by looking at what has been prevented or curtailed, or by what is left or can be re-arranged with some loss or inconvenience. The concrete question requires an examination of what he can and cannot do and with what accompanying enforcement measures. The assessment of whether, objectively, those restrictions amount to a deprivation of liberty or not, does not depend on what the individual thinks of them nor on his subjective reaction to their effect on his liberty or movement.

The assessment nonetheless cannot be made without some regard to the age and background of the individual, and what he personally is unable to do, even if some restriction might not affect others in the same way. The relevance of opportunities for social contact is clear from Guzzardi. The importance of this cannot be judged without some account being taken of the particular individual. As Mr Eicke pointed out correctly, the new “home” in a new location where Guzzardi was sent did not of itself amount to deprivation of liberty; it was the very limited nature of the island location and the available social opportunities there which were of considerable importance. By the same token, the effect of the geographical area to which AF is now restricted on AF’s social contact opportunities is relevant to answering the concrete question.

The evidence of Dr Snowden, which I accept, is of no weight on this issue because of the fairly insignificant impact it describes and because that form of subjective response would need to be very marked before it could begin to be relevant to whether there has been, objectively, a deprivation of liberty.

Taken by themselves, any one of the restrictions which flow from the way in which the area has been delineated would not amount to a deprivation of liberty. He is not prevented from re-arranging many parts of his life within his area. But together they cut him off to a large extent from his previous life. I attribute particular significance to the cumulative restrictions on mosques and educational establishments or employment opportunities in judging whether there is a deprivation of his liberty. And they have to be seen as additional to those which bite during curfew hours.

Taking all these matters into consideration, I have come to the conclusion that, although as with E the decision is quite finely balanced, this is a case in which the restrictions cumulatively amount to a deprivation of liberty. They are markedly less severe than those in JJ and Others but broadly they are of comparable severity to those in E, overall. Beatson J regarded the requirement for prior approval for all visitors to the home and for prior approval for any pre-arranged meetings, and the requirement for approval to attend any meetings as very real restrictions which, as I read it, tipped the balance towards there being a deprivation of liberty. Those serious features are not present here in that way: outside, curfew hours AF can have visitors to his flat and he can meet them outside both without prior approval. But instead AF has a longer curfew, and a geographical area which has specific effects in relation to attendance at his preferred mosque and the pursuit of education in English, as well as other specific and more general impacts on what AF used to do. There was no issue over the mosque in E and E had a larger family group, including his children, with whom he had unrestricted contact. One cannot ignore the probability that at least some of the restrictions would be renewed for a number of years on the basis of the material used to justify this Order, although there is not the history there was in E of previous detention. (There is no prospect of deportation in the absence of deprivation of citizenship or, in my judgment, of prosecution for a terrorist-related offence). For those reasons I have come to the conclusion that this Control Order is a nullity. It cannot be saved by variations to the restrictions, selected by the Court.

I make it clear that the decision that the Order is a nullity is a consequence of the statutory requirement that the Order should not be a deprivation of liberty. Control Orders which involve a deprivation of liberty cannot be made without a derogation from Article 5 which has not been sought. It follows that restrictions may be necessary on the evidence which go beyond those which can lawfully be imposed. But the necessity for the restrictions is not relevant to whether there is a deprivation of liberty in their imposition. That necessity only goes to the justification for their imposition if they are lawful in the first place.

I shall nonetheless address the other issues lest the decision of the House of Lords in JJ and Others suggests that this Control Order would not be a deprivation of liberty, or lest E is successfully appealed.

Mr Otty submitted that the provisions of ss 1(9), 2(9) and of Schedule 8(2) to the Prevention of Terrorism Act were so broad and vague that they could not lawfully provide a justification for any interference with a qualified right under the EHCR; they failed to provide a legally certain justification. This issue was addressed by Beatson J in E between paragraphs 181-192. I respectfully agree with what he said and adopt it.

Mr Otty said that it was unclear that the arguments before Beatson J were the same as he deployed in relation to s1 (9)(c) and (d). It is certainly the case that the conclusions reached by Beatson J are consistent only with his being satisfied that the definition of “involvement in terrorism related activity” in s 1(9) did not give rise to any problems of legal uncertainty, because of the way in which the definition feeds into the powers in s2 (9) which he did consider. I accept Mr Eicke’s submission that the language of those subparagraphs is of a piece with that in the Terrorism Acts 2000 and 2006, and with that considered in Gillan, above. In any event that case and Beatson J’s analysis show that the true antithesis of legal certainty is not a vagueness or breadth of expression which may call for judicial interpretation, but rather executive arbitrariness. The language of the subparagraphs is broad; there are questions as to its scope which Mr Otty fairly posed. But I do not see that it fails the requirement for legal certainty in the way in which that concept is used in relation to qualified rights under the ECHR.

Mr Otty next argued that the Control Order was made unlawfully and should be quashed because it had not been made by the Home Secretary personally. It was made by the Minister of State for Immigration, Nationality and Citizenship. The first Control Order in respect of AF and indeed all other Control Orders, save one, had been made by the Home Secretary personally. Mr Jones explained that the Home Secretary had been away on holiday when the Order came to be made, and that the Minister of State for Counter Terrorism was also not available. So one was taken to Mr Liam Byrne, who had had some previous Ministerial experience in this area. Legal advice had been taken on whether a Minister of State could make the Order. The Minister considered all the material, said Mr Jones, although he knew that there had already been a Control Order; it was not a question of just looking at more recent material. The Minister also made one other Control Order. No consideration had been given to a civil servant making the Orders.

The PTA itself in s1(2)(a) simply says that the power to make a Control Order shall be exercisable “by the Secretary of State”. Subparagraph (b), which deals with derogating Control Orders made by the Court, says that they are made on the application of the Secretary of State. Neither in those provisions nor in any others which relate to the exercise of the Secretary of State’s powers is there any reference to the powers being exercised by him personally. Nor is there any definition of the “Secretary of State” to that effect. There is very little to be gleaned from the various statutory provisions either: some are clearly more important than others and involve the exercise of powers which affect personal liberty; derogating and non-derogating Orders are in that respect treated alike although the latter are made by the Court. But other powers, notably the obligation to consult the police about prosecution, are not obviously ones which the Secretary of State would be expected personally to undertake.

Mr Otty referred me to Hansard, but fairly accepted that whatever assistance it might afford were a Control Order to be made below the level of a Minster of State, Parliament had been told during the debate on the Bill by the Home Secretary that he or a Minister of State could make the Order; Hansard 22 February 2005, col 163. This was in the context of contrasting the political role and judicial roles. There was an emphasis by the Home Secretary in the debate on the importance of those who were politically accountable to Parliament taking the decisions on Control Orders, since they affected national security.

Mr Otty recognised the “principle” in Carltona Ltd v Commissioners of Works [1942] 2 All ER 560 C.A., that duties imposed on and powers given to Ministers by statute were normally exercised by responsible officials under the authority of the Minister; so the Minister acted through the civil servant. The necessary authority could be conferred informally in accordance with departmental practice. This was not a question of delegation of powers. Mr Jones had not found any express delegation, and said that that sort of matter would have been handled through the Private Office.

Mr Otty’s contention was that the subject matter, namely the making of an Order which could affect the liberty of the subject, was so serious that the Carltona “principle” had no application. It required the personal attention and decision of the Secretary of State; that was what Mr Jones had accepted was the normal practice; and Lord Carlile of Berriew QC’s First Report as Independent Reviewer of the exercise of the powers in the PTA noted in paragraph 38, that decisions on Control Orders were very much those of the Secretary of State personally.

He supported his argument by reference to authority. R v Superintendent of Chiswick Police Station ex p Sacksteder [1918] 1 KB 578 concerned the deportation of a French national during the First World War. The Alien Restriction Act 1914 permitted an Order in Council to be made empowering “such persons as may be specified in the Order” to take the steps necessary to remove aliens, including powers of arrest and detention. The Alien Restrictions (Consolidation) Order 1916 permitted “the Secretary of State” to order deportation and detention meanwhile in such manner as “the Secretary of State” directed. The Home Secretary himself had decided that detention was necessary in that case. The principal issue appears to have been whether the powers given could be exercised in some general way or whether there had to be a specific order in each case; but Pickford LJ also said, p585-6, that where power was “given to a dignified high officer to restrict [the liberty of a person living under the protection of our laws] I am inclined to think- it is not necessary to decide it – that it must be done by that high officer himself.” Warrington LJ agreed generally and said that he assumed that the power was given to the Home Secretary to exercise personally. Scrutton LJ, p591, said that his present view was that the powers at issue were of a judicial character and could not be delegated.

These fairly tentative obiter dicta are really the high point of Mr Otty’s submission. It is not necessary directly to decide whether the powers under the PTA can be exercised by someone below Minister of State, whether lowlier political or dignified high civil servant. Consideration of whether someone below that level can exercise these powers only tests whether, if the power is not confined to the Secretary of State personally, there is a stopping point before the full application of the practice of Government through officials, as described in Carltona, could lead to decision making at a very low level, restrained only by general public law rationality principles. That is how Mr Eicke, who submitted that there was no personal or indeed political restriction in the Act, saw any legal restraint operating; there was obviously political control over the level of decision making.

I was also referred to R v SSHD ex p Oladehinde [1991] 1 AC 254. The question there was whether the SSHD had been entitled to devolve to immigration officers his powers to deport overstayers or those who breached their conditions of stay. The Court of Appeal and the House of Lords held that he had been entitled so to do. There was a strong undercurrent in the reasoning that it would be impracticable for the Home Secretary personally to take the many decisions involved; and that the devolution of powers had been to an appropriate level of suitably qualified individuals. There was a practice before 1988 that the Home Secretary himself made deportation orders, after consideration by a Minister, or that a Minister personally made them if the Home Secretary were not available for long periods. Lord Griffiths, who delivered the leading speech, said that it was well recognised that when a statute placed a duty or power on a Minister, it might generally be exercised by a member of his department for whom he accepted responsibility. Parliament had imposed limits on that devolution in three instances in the Act but not on devolution affecting the decisions at issue. Mr Otty was not emboldened to say that to permit the powers to be exercised here by a Minister of State was irrational but did say that it would be practicable for Control Orders to be made by the Home Secretary personally, because, apart from this particular one, he had always made them.

R v SSHD ex p Doody [1994] 1 AC 531 is the most recent relevant case; it concerned the exercise by the SSHD of his power to set the date for release on licence of murderers on mandatory life sentences. One of the many arguments was whether the statutory discretion could only be exercised by the Home Secretary personally. Lord Mustill, with whom all their Lordships agreed, agreed with what Staughton LJ had said on this in the Court of Appeal, adding that whether powers could be devolved or delegated depended largely on the interpretation of the Act in question; whether there was a rationality constraint as suggested in Oladehinde was not examined, but it was clear that if delegation was possible, delegation to a junior minister was permissible.

Staughton LJ, [1993] QB 157 at pp 194-6, after referring to some authorities which recognised that judicial decisions could not be delegated and that certain administrative decisions could not be delegated, held that there was no express or implied requirement in the relevant Act for a personal decision by the Home Secretary. There were on average 127 cases a year, and because of a backlog, more than double that had been considered in one recent year. The cases all required consideration and the burden was substantial; there was nothing irrational in devolving the task to junior ministers, equally appointed by the Crown, assisted by the same officials and answerable to Parliament. The past practice that Home Secretaries personally considered reprieves for those sentenced to death did not persuade him that there was a parallel obligation in relation to fixing the tariff for life prisoners; Parliament would have known of the great burden which Home Secretaries bore.

I am not persuaded by Mr Otty’s arguments. There is clearly no express prohibition on a Minister of State in the Home Department making a Control Order, and there are no indicators in the PTA wording to suggest that a prohibition was intended. Whether the “Carltona principle” is a common law constitutional principle or not, the power for the Minister referred to in a statute to devolve the exercise of that power to other Ministers or civil servants is to be treated as implicit unless excluded expressly or by necessary implication. It is not necessary to consider how far that devolution might go in this case before the political decision or arrangements became unlawful or irrational, because, as in Doody, it is only necessary to consider whether the Minister of State could make the Order.

I am not persuaded that there is anything in the subject matter of the Order which makes a personal decision by the Home Secretary necessary as opposed to a decision by a Minister of State. It is not a judicial act. It is a decision which, if lawful, would restrict freedom of movement; and that decision is subject to various forms of judicial oversight. I see nothing in its nature which would require a Home Secretary’s personal decision if that in Doody did not. Sacksteder is not now persuasive, especially given the tentative nature of its obiter dicta.

Of course, there are far fewer Control Orders than there were deportation orders at the time when some at least were delegated to immigration officers, and far fewer than there were life sentence tariffs to be set. Only twenty in total have been made. To that extent there is some ground for Mr Otty’s point that, if Carltona, Oladehinde and Doody represent judicial recognition of the realities of modern government, the number of Control Orders made is not a basis for implying a power to devolve their making to a Minister of State. But that is not a basis for excluding it either, which is what Mr Otty has to demonstrate. In any event, the fact that there may be few decisions under that Act does not really deal with the point: Home Secretaries have a heavy burden of decision-making, statutory and non statutory; the making of Control Orders may require urgent action or bursts of action and also each Order requires careful and individual consideration; the Home Secretary may be away for perfectly proper reasons. The Minister would have access to the same advice; as a Minister of the Crown, he would be accountable to Parliament in the same way. The fact that the Home Secretary has made all but this one personally, does not show how the Act should be interpreted; it shows political responsibility being taken. That is all relevant to the general application of the principle that the power to devolve decision making is not excluded, unless that was the clear intention of Parliament. An intention to enable the Minster of State to make a Control Order or to preclude him from doing so cannot depend on the precise whereabouts and workload of the Home Secretary at the time it comes to be made.

It is not necessary to consider whether there is an estoppel against the executive arising out of anything which was said in the Parliamentary debate on the PTA about who would make the Orders. Mr Otty accepted that that could only arise if someone below Minister of State rank, or an official made the Order. It is not necessary to decide whether devolution to such a decision maker would be irrational.

Mr Otty submitted that the Order should be quashed because there had been a failure on the part of the police to consult the CPS on the prospects of prosecution. This was a duty laid on them under s8 (5) of the PTA. As a matter of fact, I accept that the SSHD carried out his obligation to consult the police but they did not consult the CPS as required. Mr Eicke said that the only remedy was to grant a declaration that the police had failed in their duty.

The relevant provisions are in s8. This provides:

“The controlled person is bound by –

a)

a control order,

b)

the renewal of a control order, or

c)

a modification by virtue of subsection (2)(d) or (5)(c),

only if a notice setting out the terms of the order, renewal or modification has been delivered to him in person.”

What happened here, according to Mr Jones, was that the SSHD consulted the police in effect automatically without necessarily forming a view as to whether the suspected involvement in terrorist activity involved the commission of an offence. It is fairly clear to my mind that the suspected involvement would have required any Home Secretary to form the view that that may have involved a terrorist related offence. The Metropolitan Police and the Greater Manchester Police were consulted in relation to each of the two Control Orders. Some complaint is made of that consultation but in a different context. It is not suggested that there was any failure on the part of the police to keep the potential for prosecution under review, unlike E.

The police did not consult with the CPS because it was not their practice to do so where it was clear that there was no realistic case which could be mounted on admissible evidence. This would be their normal practice in ordinary criminal prosecutions. The Home Office was obviously aware that the CPS were generally only consulted where the police thought that there might be a realistic chance of a prosecution, and that had been the position in relation to those detained under Part 4 ATCSA 2001. The consultation replies from the police make no reference to the views of the CPS or to their having been consulted. The letter of 18 August 2006 from the Metropolitan Police said that the Chief Police Officer for Greater Manchester had been consulted, and that there was no intelligence which is admissible in court to support a prosecution for an offence relating to terrorism. I conclude however from Mr Jones’ evidence that the Home Office were not aware that this practice was adopted by these services in relation to PTA consultations until January 2007. That practice is now being re-examined; I note the letter from the Metropolitan Police of 2 February 2007. The evidence of Mr Jones as recorded in E, at paragraph 117, was said by Mr Otty to show that the Home Office were aware of such a policy being applied to PTA cases rather earlier; but that is a misreading of the evidence.

It is clear that the police services which were consulted each failed in a statutory duty laid upon one or other of them to consult the CPS. There is no exception for those cases in which the police themselves form the view that there is no prospect of a prosecution. Such a judgment is only permissible in relation to what may emerge during a review of the potential for prosecution, not in relation to the original making of the Order.

I reject the contention that this failure makes the Order a nullity and requires it to be quashed. Such consultation is not a pre-condition to the making of the Order, for the reasons given by Beatson J in E at paragraph 248 as to why the duty on the part of the SSHD to consult the police was not a pre-condition to the making of the Order. This case is stronger because here the SSHD did fulfil his duty and it is he who makes the Order.

Mr Otty next submits that a failure on the part of the police to consult the CPS on the possibility of prosecution meant that the decision was flawed, regardless of whether the SSHD knew of that failure, because it simply meant that he had failed to have regard to two material considerations when making the Order. Those were that the required consultation had not been carried out and that therefore the question of prosecution had not been considered in the way in which it should have been. In fact, he suggested that the terms of the letters and the usual practice of the police should have put the SSHD on notice that the CPS had not been consulted.

Mr Otty drew support from E. Beatson J held that the Order which he was considering was flawed for the purposes of s3 (10) and (12) and fell to be quashed because of the failure of the SSHD to keep the question of prosecution under review in the light of what emerged from the Belgian Courts. Although there are passages in paragraphs 250 and 284 which could support Mr Otty’s point, they are really directed at the SSHD’s own responsibilities and omissions.

Mr Eicke submitted that the error was that of the police, that the SSHD had no superintendence of the conduct of the police, and the actions of the SSHD could not be flawed because of their omissions. There had been no error of law by the Home Office. It would be an odd consequence if the error of a third party, especially if it occurred without the knowledge of the SSHD, could flaw his decision.

In my judgment, the failure of the police to consult the CPS could lead to the decision to make a Control Order or to maintain it being flawed, quite apart from any question of review of the evidence as it might develop. I do not accept that the fact that it is the police who failed to perform their duty absolves the SSHD under this Act from all consequences of that failure. More curious would be the absence of any consequences at all for the validity of an Order, despite a prior breach of an obligation of some importance in establishing the necessity for the Order instead of prosecution, and in respect of which the CPS has been given a specific role triggered by the performance by the police and the SSHD of their duties. A declaration would be of some effect for the future but scarcely meets the point at issue. Although actual or constructive knowledge of the non-performance of the duty by the police makes it easier to hold that there has been a failure on the part of the SSHD, neither is necessary in my view in order to hold that the decision is flawed. It is for the Home Secretary to know the result of the consultation of the CPS by the police as part of his judgment as to the need for the Order. It is a material consideration. The fact that the SSHD cannot order the police to consult the CPS is not a persuasive point against such an outcome.

The question of what consequences should follow from a failure of the police to consult the CPS must be resolved by examining the terms of the Act and the purpose of the requirement, and its importance. I have already held that such consultation is not a pre-condition to a lawful Order. Quashing the Control Order would however normally be the appropriate remedy for such a failure, in order to reflect the importance of proper consideration being given to the possibility of prosecution. The SSHD, in the absence of consultation with the CPS by the police, omits consideration of a matter which it is part of the statutory framework for him to know, namely whether or not there is a realistic prospect of prosecution, taking account of the views of the two relevant bodies, the police and the CPS. The police may be certain of what the CPS are less clear; they may differ. It is however rather artificial to describe the omitted consideration as being knowledge that the police had not done what they were required to do.

However, I do not think that a Control Order should be quashed for a failure to take account of this point, where that failure had no possible consequences. There should not be an automatic quashing of a Control Order in these circumstances and I see that as also being how Beatson J would have approached matters. No judicial review principles require such an arid approach. The normally material consideration was not in fact material in this case. Here it is quite clear that the police were correct in their assessment; the CPS would have been bound to agree. If the matter were reconsidered, the outcome would be quite clear on this point. I believe that all or all the essential police or other evidence which could be admissible against AF in a criminal trial has been deployed before me, in order to make out the reasonable grounds for suspicion and the necessity for the Order. It is quite clear that there are statutory and PII barriers to the admissibility in a criminal trial of the evidence upon which the SSHD relies. That is quite apart from any debate as to how far the evidence would go even if it were all admissible. If there is further evidence which I do not have it is likely to be only closed evidence; I say that, aware of some gaps in the closed material. The absence of an immediate reply from the CPS now that it has been consulted does not persuade me otherwise. This is not a case in which there is any basis for a belief that a Control Order was made as an easy option. The nature of the risk is such that prosecution of AF with a view to conviction and a substantial prison sentence would have been preferred to a non derogating Control Order. Accordingly I decline to quash the Control Order on that basis for this omission.

There was no failure either to consult the police on further evidence; there was no new material. That is quite consistent with the changes to the open evidence.

Mr Otty submitted that the Control Order should be quashed as flawed on ordinary judicial review principles because in a number of respects the SSHD had failed to take various other material considerations into account. These were the substantial compliance by AF with the terms of the Control Order between June and September 2006, which showed that the risk could be overstated; the questions asked of AF, but not answered in his post arrest interviews; the materials against the other individuals who featured in the case against AF or were named in the Control Order as prohibited contacts, and the impact of the Control Order on AF’s life. Mr Otty also raised a question about how far other police services involved in the wider operations had been consulted. He contended that even if the Court were to conclude that reasonable grounds for suspicion, the need for the Order and for its obligations had been made out both when the Order was made and when the matter was considered by the Court on all the material before it, the Control Order would still be flawed if some factor relevant to the issues before the Court had been ignored when the Order was made.

A note of caution about this submission is required. The application of the principles of judicial review at this hearing has to take account of the Court’s role in relation to the merits of the Order, i.e. the reasonableness of the grounds for suspicion, the necessity for the Order and each of its obligations. The Court decides whether reasonable grounds exist and whether the Order and its obligations are necessary as at the date of the hearing and is not confined to material before the SSHD when the Order was made. That is not the usual approach to judicial review, but it is what this Act requires as an essential protection for the individual. There will often be factors not considered or pursued as far as they should have been by the Security Service, police or Home Office, and upon which advocates properly rely to show that the Order is unnecessary or ill-founded. Those omissions may or may not have been made good by the time the Court hears the case. Such criticisms of the evidence as it stands before the Court may be well-founded in themselves; but there may well still be sufficient evidence, after allowing for the doubts which may have been cast over parts, to show that reasonable grounds do exist and that the Order and its obligations are necessary.

The Court is itself considering the merits of the Order, albeit on a limited standard of proof on one key aspect. It would be strange indeed for it to ask itself whether there was some material factor of which it was ignorant, and, if so, to quash the order on that basis alone, regardless of what the rest of the evidence might quite clearly show. It would not be a correct application of the principles of judicial review within this Act to hold that the Order was flawed and fell to be quashed or modified under s3 (12), if on the whole of the evidence before the Court, and recognising the significance of those omissions and shortcomings, the reasonable grounds and necessity tests were passed. It should not quash or modify an Order either, simply because evidence about that same factor might have been absent when the Order was made by the SSHD. Still less would it be a proper application of the principles of judicial review, in view of the particular role of the Courts here, to hold that the Order was flawed, even where the omission before the SSHD had been made good by the time the case reached the Court. Of course, I cannot exclude some exceptional circumstances where such a result would be just, but I do not consider that that would be the normal application of the principles of judicial review where there is a merits hearing before the Court, albeit with a limited standard of proof.

Turning to the particular matters which are said to be relevant and ignored, I accept that neither the SSHD nor the Court has the questions which were put to AF by the police in interview. They could be relevant; the reason given for their omission, namely the lack of resources which GMPSB could devote to providing them, was perhaps understandable but certainly unsatisfactory. However AF did not answer them and I have considered what AF said in his statements. It is not an omission of any real moment. The interview statements would have been before the Control Order Review Group in August 2006. They were not before the Minister of State, so far as I can tell. It would not have been irrelevant for those statements to be before the Minister, but it is impossible to see that they could have removed the reasonable grounds which the Minister had for making the Order with all its restrictions. The Minister may not have had the results of the search of the flat under the Terrorism Act 2006.

The evidence as to the impact which the Control Order had on AF’s life only emerged in his statements for these hearings after the Control Order was made. Prior consultation with AF was not required. That impact has been considered by the CORG chaired by Mr Jones although criticism was made of the way in which that impact was considered. It has considered the Control Order on AF twice, most recently in November 2006.

The Minister did have some material before him relating to other individuals for consideration in relation to this Order against AF, although he did not have the full Security Service case in respect of them for the purposes of this Order, and those cases would not have had the full examination for inconsistencies or inadmissible evidence which they now have had or will later receive. If there were any material then available from those cases which assisted AF or undermined the Security Service assessments, it should have been revealed in the case against AF, if the normal practice were working properly. He would also have known of AF’s compliance position.

So the position is that one omission has not been made good at all (the questions in interview), two omissions have been made good (the statements in interview, and the evidence as to the impact of the Control Order on AF’s life – if it was an omission at all) and two factors may have been improved on (material relating to other persons named and some information about what was and was not found on the Terrorism Act search, with AF’s explanations.)

I see no basis for saying that the Order should be quashed because those matters were not before the Minister. They cannot be described as legally irrelevant but they are not essential to the making of the Order in the first place. Their significance and the current position in relation to them can be considered on the merits of the case by this Court.

It would be absurd if the Order fell to be quashed even though in relation to two of them the Court has the full position. In relation to the others, it is aware that it lacks completeness and can appraise the case with that knowledge. Quashing the Order in such circumstances would be to ignore the unusual way in which this Act required the principles of judicial review to be applied, with consideration of the merits on material which the SSHD may never have considered.

I comment briefly here on the points Mr Otty made about consultation with the police. Although there were five police services involved in the wider operation, the lead service, so far as AF was concerned, was the Greater Manchester Police; the National Co-ordinator of Terrorist Investigations, part of the Metropolitan Police, is responsible for consulting other police services where that is necessary. Both were consulted in fact. No wider consultation was necessary here. It was only necessary for one police service to consult the CPS, and the NCTI would be well placed to carry that out in view of its co-ordinating role.

The next issue to which I turn is whether there are reasonable grounds for suspecting that AF is or has been involved in terrorism–related activity. That has to be tested by examining all the material before me at the date of hearing including material from AF and all the evidence which I have heard from the SSHD. As I read what the Court of Appeal held in SSHD v MB EWCA Civ 1140, paragraph 60, it is for the Court to decide whether reasonable grounds now exist on all that material. No issue arises here as to the position were reasonable grounds only to be shown to exist as a result of evidence which was not before the Home Secretary when he made the Order. It is clear that the open material, i.e. that which has been disclosed to AF does not give such grounds, and it was not contended that it did. There are no more than links to extremists, who also have innocent links to AF. I shall deal later with some of the points made about the evidence. It is clear however that reasonable grounds do exist, and more than reasonable grounds, on the closed evidence, i.e. that which has not been disclosed to AF.

There was some debate between the Special Advocates and Mr Eicke as to the proper test for whether reasonable grounds for suspicion existed. I am content with paragraph 59 of MB: reasonable grounds for suspicion requires the existence of facts or information which would satisfy an objective observer that the person may have done acts within s1 (9). While there is some value in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 in this respect, there may well be a difference in application where the grounds relate to arrest as in O’Hara, which may require a near spontaneous assessment of the situation, and a Control Order where there may have been greater scope for investigation or analysis.

I am also satisfied that a Control Order is necessary in view of the potential harm to the public if AF engages in terrorist related activity, and in view of his willingness and ability to do so. This cannot be addressed by measures less than those in a non-derogating Control Order. The basis for that conclusion depends upon non-disclosed evidence. I adopt Beatson J’s analysis of what necessity involves, in paragraph 83 of E. In reaching my conclusions here, I have also adopted his approach in paragraph 84 to assessing risk or necessity: it is an evaluation, to be made recognising the relative institutional competence of the SSHD, advised as he is by the Security Service and police, taking account of the resources available to them, and the possible surveillance arrangements. I agree with what he says in paragraphs 94-5 about the significance of resources and about the argument that it cannot be necessary to restrict someone for twelve hours by curfew when that leaves twelve hours apparently less restricted. That would be to ignore the effect of the restriction itself during curfew, the remaining restrictions, the disruption to activities, deterrence, and uncertainty over the level and nature of surveillance which being under a Control Order might bring.

Mr Otty nonetheless made some submissions about the closed evidence which I note but deal with essentially in the closed judgment. He pointed out that of the six people contact with whom was prohibited, two had been specifically mentioned in the open case, and were the subject of other proceedings; and there might be others identified in closed. It would be necessary to consider what factual material had been made out against each of them in their individual cases, if contact with them were to be held against AF. There were risks of circular reasoning, inconsistencies, omitted exculpatory evidence and evidence against them which might have been obtained by torture but which should not be allowed indirectly to affect AF adversely. It should be assumed that there was no material adverse to AF in the files on those other cases. Witness L was very clear that he had been part of the review of the six other cases now the subject of deportation proceedings at the time when the Security Service was considering a Control Order for AF. There was no open explanation of the evolution of the SSHD’s case in respect of TT and QQ, or of why no proceedings had been taken against ZA, or of any evidence that AF had re-engaged in suspicious activity after the first Control Order. I have considered those points but for the reasons given in the closed judgment, they do not alter my view.

Mr Otty was also critical of the way in which Witness L answered some of the questions, suggesting that he took too easy a refuge in deferring answers to the closed sessions. I reject that, and in any event, the Special Advocates could have sought to disclose evidence which had wrongly been provided only in closed. He queried Witness L’s knowledge of the case in so far as it related to the LIFG because he had not known what the Security Service’s position was on its links or the links of members to Al Qa’eda, a factor which could be of importance in assessing risk and the obligations. There is an element of knowing what is open or closed here but I was surprised that the witness appeared unaware of the open position. He was clearer in closed. However the crucial factor is not any formal position of membership but what the individuals themselves do or say. Although Witness L was not the individual who had made the decision within the Security Service that a Control Order was to be sought, that being the task of someone more senior, and although he had not been consulted again directly in relation to the new Order, or on all the request for variations made by AF, I thought that he had the detailed knowledge of the case and the documents and a sufficient knowledge of the way in which it had been handled within the Security Service to be a witness upon whom reliance could be placed. He was a careful and realistic witness.

Mr Otty suggested that the fact that there had been a period between AF coming to the notice of the Security Service in early 2006 and the preparation of the Control Order in May 2006 showed that he could not have been of great concern. Mr Jones explained the processes which were undertaken, and from the way in which the case evolved, I am satisfied that that suggestion is ill-founded. The Special Advocates pursued it in closed.

He also submitted that the period between the judgment of the Court of Appeal in JJ, and the making of the second Control Order, when the SSHD already knew from the judgment of Sullivan J that the Control Orders could be quashed, showed that they could not have regarded AF as being much of risk. The Control Order was a nullity and could not be enforced or at least strongly arguably to their knowledge could not be enforced; yet the Home Office had undertaken none of the contingency planning which they had done for JJ and others. I do not think that that criticism of imperfection in August 2006 can be a sound basis for a different assessment of reasonable suspicion or of necessity. They took a risk, and AF could not properly have been advised that he could safely disregard the Order either. They wanted time to digest the judgment and to prepare the new Order for AF and one other, and it was a busy summer.

Mr Otty was keen that I should be aware of the nature of the allegations behind the charges for which AF currently faces trial, in order that it could be seen that they involved no allegation of terrorist-related activities and were of a technical nature. Mr Eicke expressed strong reservations about the completeness of Mr Otty’s exercise and of the way in which the point emerged. I do not intend to form a view on all these points but I do not accept that the breaches were all of a technical nature. They were also deliberate. Testing the limits is not unknown. The allegations neither advance nor diminish either party’s case on any issue, as allegation.

The necessity for the particular obligations was challenged. I have set out already the various impacts which it is said they have and the SSHD response to the impacts. The necessity for each obligation is really only seen in the context of the closed evidence but some points can be made in open. It is clear from MB that the resources available to the Security Services are relevant in deciding what is necessary. The various constraints of time and manpower as they affect various forms of surveillance and monitoring were discussed in closed. Surveillance 24 hours a day for 7 days a week was not practical and coverage would not necessarily be complete.

The Security Service provided the intelligence case for the obligations, and the police with the Home Office principally examined enforcement. I was not persuaded that Mr Otty’s questioning of Witness L on the test of reasonable suspicion or necessity advanced matters: he provided a test for reasonable suspicion which was far too high, and failed rapidly to reject the suggestion that making matters “easier” was an apt understanding of “necessary”, but he was not shown the context initially in which that word had been used. It is right that the justification for the obligations uses the language of “easier” but in the context of making enforcement and monitoring “easier”. That language does not seem to me to be inappropriate: it clearly means making the enforcement of the obligations more effective, or less resource intensive or both. The witness showed a proper awareness in his answers that what was done would have to be done to protect national security.

He had advised and had been involved in the discussions on all the restrictions in the first Order and had advised that all of them were necessary; and therefore to him it followed that the minimum relaxation for a lawful Control Order was appropriate in the second Order. Mr Jones said that the second Order was made at the same time as the second Order in the other case, which was why a clerical error had led to the now deleted references to an Iraqi passport, and to a wife and children in the explanation for the Order. Those clerical errors do not persuade me that the individual obligations were not considered by the Security Service and the Home Office in this case. Besides it is for the Court to decide whether the Order and the obligations have been shown to be necessary, applying an intense scrutiny, albeit with a degree of deference on national security matters, and of course recognising that the Security Service, the police and some officials have expertise in assessing risks and enforcing or monitoring activities.

Mr Jones made the point that the shortening of the curfew did not lead to step changes in the degree of risk, although hours of darkness could add to problems with certain sorts of surveillance. The fewer the hours, the greater the risk of re-engagement but on a continuum of risk. There had been no contact with the French Government to see how it would react to being told that AF was seeking to visit; it was unlikely to be helpful. The area had been defined deliberately; the SSHD had considered in a general way what facilities and job opportunities it offered. Although requests for modification had been met with a refusal because that would mean AF going outside his area, the concern was that that would give him time and greater opportunity to re-engage with contacts and activities of a terrorist related nature. When AF had been allowed out of his area for specific reason he would have had to go by minicab or with his father.

The tag and curfew restrict the potential for re-engagement. The fact that AF’s friends and contacts could visit him at home outside curfew and consort with him inside the area did not mean that the restriction was pointless. It covered what would often be hours of socialising. It disrupted contact. Although Mr Jones thought that the chilling effect was overstated, there was an effect and that did not apply only to those with whom contact was innocent. It was quite often the case that individuals could not be named and contact prohibited because to do so would reveal knowledge of the link. Restrictions on mosque choice were necessary because extremists did use mosques to meet; the position of the nearest mosque which he used to attend had been considered.

A twelve hour curfew had been rejected because an eighteen hour or twenty four hour curfew was what was really necessary. Similar relaxations had been allowed because that was what the law required and not because they were no longer necessary.

If I had concluded that the Control Order was no more than a restriction of movement, I would have regarded the general run of restrictions as necessary. However, the detail and balance will have to be re-examined in the light of my decision on the first issue. There might be scope for a shorter curfew if there were also a reporting requirement outside the curfew hours. The area may be too tightly drawn particularly with regard to educational opportunities. I think that there is greater scope for controlled visits to his mother or the Arabic speaking GP, that is with notified appointment and his father driving him there and back. I would not have accepted a modification so that AF could go to France. I would not have allowed a general lifting of the restriction on the areas of where his friends live, nor would I have accepted that he could go to the park he used to go to for the football matches.

The possibility that I would conclude that there were reasonable grounds for suspecting that AF was involved in terrorist-related activity, and that a Control Order was necessary, led Mr Otty to make a submission about the overall fairness of these proceedings. I deal with it because a revised Control Order may be made as a result of this judgment and the disclosed evidential basis for it could be much the same. Mr Otty points out that no, or at least no clear or significant, allegations of involvement in terrorist-related activity are disclosed by the open material, nor have any such allegations been gisted. The case made by the SSHD against AF is in its essence entirely undisclosed to him. Answers to a Request for Further Information did not advance AF’s understanding. Nor were any allegations of wrongdoing put to him by the police in interview after his arrest, affording him an idea by that side wind of what the case might be. I accept those factual points.

Mr Otty initially submitted, accordingly, that this meant that the hearing before me could not be fair and was inevitably in breach of Article 6. For a hearing to be fair, even with the protection of Special Advocates for material not disclosed to the individual, an irreducible core had to be disclosed. That was said initially to be all the core allegations in the case, but later just sufficient of them to enable the Order to be maintained. It was the allegations which mattered, said Mr Otty, and not the evidence which lay behind them.

The remedies for this unfairness or breach of Article 6 were initially suggested by Mr Otty to be a declaration that Article 6 had been breached, or a quashing of the Control Order as flawed or obviously flawed, or such other remedy as appeared just under the Human Rights Act 1998. In the end however, as I understood his submissions, he accepted that his only remedy was to seek a declaration of incompatibility and asked for permission to add that to the relief sought. Mr Eicke did not object, and the relevant Secretary of State was well aware of the claim in these proceedings.

It is clear, if Mr Otty is right in his submission on unfairness that such a declaration would be the only appropriate remedy. It is the PTA itself which, in the Schedule, provides for the non-disclosure of material: paragraphs 4(2)(a) and (b) provide that Rules of Court may preclude disclosure to a party of the reasons for decisions and for hearings to be conducted in his absence; paragraphs 4(3)(b) to (d) require that the Rules of Court in turn require that the Court permit the Secretary of State not to disclose material to a party if its disclosure would be contrary to the public interest.

The Rules of Court are in CPR Part 76. Part 76.1 (4) defines the public interest as being the interests of national security, the UK’s international relations, the detection and prevention of crime or other circumstances in which disclosure is likely to harm the public interest. Part 76.2 (2) requires the Court to ensure that information is not disclosed contrary to the public interest. Other rules have to be read subject to that requirement. The disclosure provisions in Part 76.29 were applied in this case and the Court made what rulings it thought necessary to prevent the disclosure of material contrary to the public interest. The Act and Rules do not permit any account to be taken in that exercise of fairness to the individual subject to the Order.

The Court is obliged to uphold the Order if it is not flawed, and it is not flawed if the requirements of reasonable grounds for suspecting involvement in terrorist activity and of necessity for a Control Order with these obligations are met; s3(10),(12) and (13). The Court had no option but to reach the conclusion which it did on disclosure and would have to uphold the Control Order if those requirements were satisfied. There is no scope for the provisions of the primary or secondary legislation to be read down and none was suggested. There is no requirement that they be satisfied essentially on open evidence, and that closed evidence only be used to support a conclusion justified on those issues by open evidence.

As Mr Eicke rightly submitted, the decisions that the material should not be disclosed and that the Order is not flawed are decisions of the Court and not of the SSHD. It would be the Court’s decision that the Order be upheld in such circumstances, not any action of the Secretary of State. Mr Otty accepted that the absence of disclosure of the core of the case against AF was the result of the correct application to the material of the statutory provisions in primary legislation carried through correctly to the Rules, and he did not suggest that the Rules were ultra vires the PTA. If the decision of the Court breached Article 6, it still had to uphold the Order because, applying s6 Human Rights Act 1998, the Court could act in no other way as a result of primary legislation.

Mr Eicke submitted that the decision of the Court of Appeal in MB, above, had resolved this issue in his favour and was binding on me. It had considered, paragraphs 68-86, the structure of the legislation, the provision for non-disclosure of certain material, the special advocate system for challenging that non-disclosure and for dealing with the material which was not disclosed. It considered the authorities upon which Mr Otty relied, notably R (Roberts) v Parole Board [2005] UKHL 45 [2005] 2 AC 738. It had concluded that reliance on closed material was permissible with appropriate safeguards in place against the prejudice which that may cause, which the provisions for the special advocate and his role provided. The Court pointed to what the ECtHR said in Chahal v UK (1996) 23 EHRR 413 about Special Advocates.

Mr Otty sought to distinguish MB on the grounds that MB did not face the complete absence of understanding of his case which AF faces. MB knew at least that it was alleged that he intended to travel to Iraq to fight coalition forces there. Mr Otty relied on passages from Roberts which he submitted showed that the House of Lords recognised the real prospect that where an irreducible core of the case was not disclosed to the subject of proceedings, they were so unfair that they could not be made fair within Article 5 (4) and hence Article 6 by the introduction of a special advocate. That aspect had not been considered by the Court of Appeal in MB.

I reject the contention that I should distinguish MB on the grounds of the greater disclosure there and the negligible disclosure here. First, the judgments in MB show that the issue of the unfairness of very limited disclosure was directly advanced to the courts as part of the argument that the PTA was incompatible with Article 6: Sullivan J held that the fact that the SSHD could place the significant part of his case before the Court but not before the individual, preventing him making any effective challenge to what was no more than a bare assertion, was part of the incompatibility. Those arguments were repeated in the Court of Appeal; see paragraphs 68 and 69 of the Court of Appeal judgment. The essential features of Mr Otty’s submissions were therefore actually argued before the Court of Appeal and their rejection formed part of the decision that the PTA was compatible with Article 6, even though an individual might have no means of knowing or challenging the case against him. Second, the Court of Appeal considered the ECtHR jurisprudence and the Roberts decision, and reached a clear conclusion that the PTA was compatible with Article 6; such a decision could not have been reached unless there were no circumstances or at least none which could then reasonably have been envisaged, in which its inevitable operation would be incompatible with Article 6. Third, it is the wrong approach to decisions of a superior court to seek to distinguish them simply because a particular argument on a point has not been raised or expressly dealt with. The reality is that the issue raised here was dealt with or was subsumed within the Court’s wider consideration of Article 6. The Court did not say that the essential allegations had been disclosed and, on that basis, reject the incompatibility claim.

However, while I accept that there may be an important point for higher consideration, I did not find that analysis of Roberts really advanced its solution. The significance of the passages upon which Mr Otty relies depends to some extent upon an understanding of the differing views which it appears to me all five of their Lordships took.

There was evidence which, if accepted, appears to have been critical to the Board’s decision on risk. The Board would not have initiated the Special Advocate procedure unless that were so. The evidence in question could not be disclosed or gisted to Roberts, or to his representative because of the risk of inadvertent disclosure, as the Parole Board found. No further hearing would be likely to resolve that issue differently, even though the potential for that was referred to by Lords Bingham and Woolf CJ, but rejected by at least two of the others, including Lord Steyn who was in the minority overall. One matter is clear; their Lordships overall did not hold that that necessarily made the hearing unfair.

The Parole Board Rules provided expressly for material to be withheld from the applicant and from his representatives, although there was scope for disclosure to the latter but not the former. There was no express provision for a special advocate where material was withheld from both. The rule-making power in the relevant primary legislation, the Criminal Justice Act 1991, did not expressly provide for the withholding of evidence, or make any consequential provision for how the material withheld was to be dealt with. Nor did the later 2003 Act. Lord Bingham regarded it as common ground, because the contrary was not argued, that the relevant provision of the Rules was not empowered by the Act, paragraph 24: Lord Steyn, paragraph 88-9, treated it as obvious that the rule was ultra vires but he focused on the use of Special Advocates rather than on the non-disclosure provisions: Lord Woolf, paragraph 75, thought that non-disclosure was empowered provided that the rule was construed so that material was only withheld in appropriate circumstances in which the hearing would nonetheless be fair: Lord Carswell thought that it was accepted that the provision for the withholding of material was intra vires provided that any decision against disclosure was made on sufficiently compelling grounds, paragraph 136 and following: Lord Rodger, paragraph 106, thought that no challenge had been made to its vires at all.

The crucial difference between the majority and the minority seems to me to be that the majority regarded provision for the withholding of material as permitted by statute, in certain circumstances, and therefore regarded the institution of the special advocate system as a reasonable and impliedly permitted means of mitigating the unfairness which that non-disclosure gave rise to. The minority regarded the system as unfair but did so because of the underlying unfairness in the use of evidence which was not disclosed and for which there was no Parliamentary sanction.

How their Lordships would have regarded the position if there had been, as here, clear authority in primary legislation for rules governing the withholding of material and no prospect, as here, of the gist being disclosed, remains to me unclear. I find no authority in that decision as to the compatibility with Article 6 of this legislation and the process which it has required me to pursue. The leeway which Lords Woolf and Rodger at least thought existed within the Parole Board Rules to exclude evidence only where appropriate or where disclosure was not counterbalanced by compelling other arguments does not apply to the PTA and CPR Part 76, (although the factors within the Rules that prevented disclosure may be seen as providing that justification.) That national security might warrant a different approach was recognised on behalf of Roberts, but it is not clear how far that actually goes; the interests being protected go wider than national security in CPR Part 76 and in any event that itself can include some of the same interests, such as the Article 2 and 3 rights of other individuals.

I turn now to the passages on which Mr Otty’s submission rely. At paragraph 19, Lord Bingham doubted whether a decision “based on evidence not disclosed even in outline to [the appellant] or his legal representatives”, and which they had had no opportunity to rebut, would meet the fundamental requirements of Article 5(4). If the procedure proposed was adopted, the rights of the appellant under Article 5(4) would be all but valueless. Lord Steyn sees no role for Special Advocates outside national security cases – which is the issue here but was not in Roberts. Lord Bingham goes substantially further than Mr Otty wished to.

Lord Woolf at paragraph 77 referred to a grey area between full disclosure and total non-disclosure, at which point “even with a SAA he cannot defend himself.” Mr Otty submitted that this case fell outside that grey area, within which the line had to be drawn between the acceptable and the non-acceptable. I am not sure how far Lord Woolf intended his point to go. If the special advocate system is used, it follows that there is part of the case which the individual has not been told about. It does not appear to me that Lord Woolf is saying that wherever the special advocate is deployed, the individual cannot defend himself in respect of that undisclosed allegation or material. Were that so, the unfairness of which he speaks would apply if the special advocate were used in respect of any important allegation or evidence. Yet that is clearly not his view.

Lord Rodger added nothing on this point and his general agreement with Lord Woolf needs to be read with his recognition that there lies ahead a difficult decision about whether non-disclosure of the material which he recognises cannot be disclosed means that the hearing would be unfair. But he does not decide that either way.

Lord Carswell does not say anything which would support the submission of Mr Otty; on the contrary, he considers at some length the ECtHR decisions on fair trials and non-disclosure and concludes that there is a balance to be struck; here it favoured the informant and the public’s interests and in principle there were exceptional cases in which Special Advocates should be used, and the material withheld, although fairness in the particular case was not immediately for decision.

The real question in my view is suggested by Lord Rodger in paragraph 111 of Roberts: does the procedure meet the minimum standards of fairness for a hearing of this particular kind in circumstances where the use of the non-disclosed material (by the decision maker or court) was necessary and proportionate? Whether non-disclosure of material is necessary and proportionate will usually involve a balance being struck either in legislation or in the hearing process, between the rights of an individual and the reduction of risk to a serious public interest in order to protect the rights of others.

There is nothing in Roberts which requires me to conclude that the process laid down by the Act and the Rules is incompatible with Article 6 as a result of the negligible disclosure of the case against him which AF has received. Nor do the comments relied on form a clear statement of principle supporting what Mr Otty submitted. On the contrary, there is nothing in Chahal to suggest that there is a point at which the suggested special advocate procedure for legitimately withheld material, becomes unfair. There is no clear basis for a holding of incompatibility.

I have taken time with this argument notwithstanding MB,because it is directed at the Court’s own functions and duties, and indeed at what could have been a decision of mine to uphold the Order on a basis which was said to be wholly unfair. I should add that looking at the nature of the issue, namely necessary restrictions on movement in an important interest, and at the way in which the Special Advocates were able to and did deal with the issues on the closed material, I do not regard the process as one in which AF has been without a substantial and sufficient measure of procedural protection.

As part of his reply to Mr Eicke’s submissions on E, Mr Otty drew my attention to the decision of the Canadian Supreme Court in Charkaoui v Minister of Citizenship and Immigration [2007] SCC 9, 23 February 2007. The first issue was whether the Immigration and Refugee Protection Act 2001 infringed section 7 of the Canadian Charter of Rights and Freedoms which provides for the right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice. The Act provided for detention pending deportation or lengthy detention in national security related immigration and removal cases, based on a Ministerial Certificate.

There were provisions for judicial oversight, but a number of features led the Supreme Court to hold that s7 was infringed; notably there was no requirement for the individual to be informed of the case or evidence against him where its disclosure would harm national security, nor was there an adequate substitute method of informing the individual of that case, where the consequences were as severe as they could be under the Act – indefinite detention or removal. Although the Court accepted that there could be limitations on disclosure, that applied where the consequences were less serious than here. The Court said, paragraph 61, that:

“In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s.7.”

The procedure involved a Federal Court judge, without Special Advocates, carrying out a limited inquisition of the non-disclosed evidence, which was held to be insufficient to meet the requirements of fundamental justice.

The Court then turned to the second issue which was whether the infringement of s7 was permitted by s1 of the Charter, namely the power to limit Charter rights where those limits were demonstrably justifiable in a free and democratic society. It held that the limits had not been shown to be justifiable, because alternatives existed which were not used, including the special advocate system in SIAC as commended in Chahal.Therefore the IRPA regime was not the minimal impairment possible.

Properly understood, this case is unhelpful to Mr Otty. True it is that on the first issue, the Court deals with the need for disclosure of the case in order to meet the fundamental requirements of justice, and where that involves detention envisages that little of the case could justifiably be withheld, taking s7 alone.

However, the issue under Articles 5(4) and 6 ECHR, also involves what to the Canadian Supreme Court was the second issue as well, namely whether the restrictions were justifiable. As in Chahal, the Canadian Supreme Court held that the restrictions were not justifiable because they went further than was necessary. As in Chahal, some form of special advocate system was commended. In neither case was there any suggestion of an irreducible core of allegation or evidence that had to be made available with such a special advocate system in place. And both those cases involved detention rather than restriction on movement.

Mr Eicke referred me to the earlier Canadian Supreme Court judgment in Canada (Minister of Employment and Immigration) v Chiarelli [1992] 1 SCR 711, which had been applied by the Supreme Court in a number of subsequent decisions, to the effect that Canada’s Special Intelligence Review Committee procedures, which included non-disclosure provisions and Special Advocates, met the Charter requirements of fundamental justice.

I should record that Mr Otty reserved the right to argue that these were criminal not civil proceedings.

For the reasons which I have given this Control Order is quashed as a nullity, without prejudice to a further but lawful Order being made.