BG v Secretary of State for the Home Department

This is an appeal by BG under s10(1) of the Prevention of Terrorism Act 2005 against the second renewal of his Control Order on 11 March 2011. The SSHD modified the Order further on 13 May 2011. BG contends that the Order is no longer necessary, if it ever were justified. The effect of the obligations, though reduced, was still disproportionate. BG continued to take issue with the curfew, geographical limitations and the restrictions on the use of the internet. At the forefront of the appeal was the contention that there was evidence relating to one BF, which now warranted a favourable re-examination of the conclusions reached by Mitting J on 15 December 2009 in his judgment on the hearing directed under s3(10) on the decision to make the original Control Order in respect of BG. There was an appeal against the first renewal of the Control Order but the parties agreed that it would have been a waste of time to hear it and the appeal against its second renewal.

Mitting J found that the decisions of the SSHD to make the original order and to include almost all of its obligations were not flawed applying judicial review principles. Those decisions required the SSHD to have reasonable grounds for suspecting that BG “is or has been involved in terrorism-related activity” and to consider “that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on” BG; s2(1) (a) and (b) of the PTA.

BG was then 26, a British citizen living with his parents, of Pakistani origin, in Crawley. He was married to a 21 year old Pakistani who lived in Pakistan. He had travelled twice to Pakistan in 2008 and was attempting to do so again in 2009, but on 18 March 2009 was stopped at the airport, and prevented from departing. This was 6 days before the Control Order was served on him.

Mitting J concluded in his open judgment, which was supported by the conclusions he reached in the closed judgment, as follows. Ibrahim and Lamine Adam were brothers who had absconded from Control Orders and on 24 June 2008 had gone to Pakistan to train and then to fight in Afghanistan; there were at least reasonable grounds to suspect that one BH was involved in their plans to abscond and go to Pakistan for those purposes. There was no doubt but that they, BG, BF, CA and others also arrived in Islamabad in mid to late June 2008. Mitting J was satisfied that their arrival and presence together in Islamabad was not a coincidence, and that they did form part of a group. He was also satisfied on the balance of probabilities that BF, like the Adam brothers, went to engage personally in terrorist training and/or fighting.

Mitting J said that he had no reason to doubt but that BG had spent a number of days in Islamabad with CA and BF; neither BG nor BH had told the truth about what happened there. There were reasonable grounds to suspect that BG and BH had gone to Islamabad, and intended to go to Jhelum, to assist others in the group, especially the Adam brothers and BF to go to the Federally Administered Tribal Areas, FATA, to participate in terrorist training or fighting. BG had also lied about leaving Islamabad to go with CA to Anghpur, where CA had an uncle. Some or all of the group actually went to Jhelum to stay in a Mujahideen safe house. This afforded reasonable grounds to suspect that BG and BH were involved in conduct which gave support or assistance to individuals known or believed by them to be involved in conduct which facilitated the commission, preparation or instigation of acts of terrorism. BG too might have gone to the FATA, but there were no reasonable grounds for that suspicion. Some of the group returned to the UK in 2008.

In 2009, three of the group, who had gone to Pakistan in mid-2008 and returned to the UK, planned to go back to Pakistan. These were BF, BG and CA; they were joined by a fourth who had not gone in 2008. This planning was not at issue; the degree of co-ordination may have been; the reason for it certainly was at issue. Mitting J was satisfied that there were at least reasonable grounds for suspecting that all four planned to travel to Pakistan in the spring of 2009 for terrorist training or fighting, and to meet there as a group.

BG, BF, BH and CA had met on 23 February 2009, and BG, BF and CA met again on 4 March 2009 to discuss travel plans, according to a Security Service assessment which Mitting J concluded was reasonably founded. BG and a fifth man were stopped at different airports on 18 March 2009 en route to Pakistan. BG was stopped with £3000 cash, a DPM camouflage–hooded top, a compass/torch and a pair of ear defenders for which he gave an implausible explanation. BF’s home was searched on 25 March 2009 and 30 September 2009, revealing an itinerary for return flights to Pakistan, from 14 March - 7 April 2009 with tickets paid for on 11 March 2009, his passport with an unused visa for Pakistan valid from 20 February to 29 August 2009, a rucksack containing warm weather clothing, a sleeping bag, first–aid kit, four adapted vests with specially added internal front pockets and a farewell letter to his wife and children. This letter told his son, aged about 2 it appears, that he was now the man of the house, asking his parents to forgive what he was going to do, and telling his wife that he would see her soon, in this life or in heaven. BH had no concrete plans to visit Pakistan but Mitting J thought that grounds for concern over his future intentions were justified by the extremist texts and graphic images on his computer hard drive found when he was made subject to a Control Order.

The need for the Control Order on BG was not disputed in the event that the statutory test was satisfied. The Order required his relocation to Norwich; the obligations were upheld as imposed save telephone contact between BG and his wife then in Pakistan.

BF was tried in October – November 2010 for offences under section 5 of the Terrorism Act 2006, engaging in acts in preparation for giving effect to an intention to commit acts of terrorism or assisting another to commit such acts. The allegation was that he had planned to go to Pakistan in March 2009 for terrorist-related activity. He did not dispute his intention to go to Pakistan but denied the criminal intent. The Crown relied on evidence considered by Mitting J in the BG Control Order decision, including the content of the rucksack, the farewell letter to his family, a photograph of BF with guns and wearing military webbing and pouches, and the presence of his fingerprints on letters from the Adam brothers to their families in August 2008 but which were mis-delivered. There was other evidence also including evidence about extremist material which he might have seen on his computer. The jury acquitted him. He is subject to a Control Order.

Mr Bennathan QC for BG submits that I should review the findings of Mitting J against BG, in so far as they were based on adverse views formed about BF, in the light of the evidence given by and on behalf of BF at his criminal trial, and in the light of some of the evidence given on behalf of the Crown. Even if they did not cause me to come to a different view from Mitting J on the necessity for the Order in the first place, such a review could still undermine the strength and nature of the findings about BG, and assist his case that the Control Order should not have been renewed or maintained as it was.

BF’s evidence at trial explained that his fingerprint was on the Adam brothers’ letters because he was shown them; and he would not have mis-delivered them since he knew the Adam brothers’ family address. He was able to demonstrate that the photographs of him with the guns dated from 2002 and not 2008. The farewell letter showed that he was concerned that he might be arrested by the ISI in Pakistan, held incommunicado and tortured. He had met a solicitor, who advised him of the risks he faced in Pakistan as a person of interest to the British Security Service; the solicitor gave evidence that he had had such a meeting with BF. He called evidence that the sleeping bag would not be suitable for the mountainous region to which “it is presumed the Home Secretary alleges that BF intended to travel”, according to BG’s Skeleton Argument. There was no evidence that any of the extremist material, part of which at least was only in computer viewable form, had been viewed on the computer seized from BF, except for one disc viewed 2 years before. There was evidence of an innocent motive for travelling to Pakistan in March 2009, to attend a wedding.

In effect, Mr Bennathan wishes to rely on this evidence, at least at this stage, as admissible hearsay evidence, as if it had been given in the form of a statement to the Court, albeit one which had been the subject of cross-examination and which had led to an acquittal.

Mr Hall for the SSHD submits that I should ignore this evidence since it is irrelevant by statute and therefore inadmissible for the purposes to which it is sought to be put. Alternatively, it would be an abuse of process for it to be admitted, and it could only lead to a review of Mitting J’s findings if admitted in evidence in an out of time appeal to the Court of Appeal. This was a result which Mr Bennathan contended would be so surprising in its exclusionary effect, however strong the further evidence was, that Mr Hall’s submission could not be right.

The relevant statutory provisions are in ss 2, 3 and 10 of the PTA 2005, and the contrast between them is crucial. S2(1), which governs the making of the original Control Order, provides:

“(1)

The Secretary of State may make a control order against an individual if he-

(a)

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

(b)

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

It contrasts with s2(6), which deals with the renewal of the sort of Order renewed here:

“(6)

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

(a)

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

(b)

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

The contrast lies in the absence of the requirement that s2(1)(a) be satisfied on renewal; the requirement that the Secretary of State have reasonable grounds for suspecting that the individual has been involved in terrorist-related activity has been left out. This appears to be on the basis that that issue has been settled in the original Control Order proceedings.

This contrast is carried through into the way the Court’s functions are defined. S3(10) deals with how the Court should approach the making of the original Control Order:

“(10)

On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed-

(a)

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

(b)

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

S10(4) deals with appeals against renewals of Control Orders:

“(4)

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

(a)

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

Mr Hall relied on SSHD v AF (No 2) [2008] EWCA Civ 117, [2008] 1 WLR 2528. This was a s3(10) case, not a renewal case. A Control Order was quashed after a s3(10) hearing on the ground that it amounted to a derogation from the ECHR. A further Control Order was made, and another hearing under s3(10) was held. The judge at that hearing declared that the earlier findings on AF’s involvement in terrorism and the need for the Control Order were binding on him, as at the date of the findings, subject to any relevant differences in the evidence. On appeal the SSHD accepted that such earlier findings should not be regarded as binding. The Court of Appeal held that the later court was entitled to have regard to the earlier findings but would itself have to be satisfied that the statutory tests were made out. Justice might not require the re-opening of the earlier conclusions, but the judge could not simply regard himself as bound by them, nor should he regard them as the starting point. What was required would depend on the circumstances of the case. That is the approach which Mr Bennathan urged on me, but AF (No.2) concerned the different statutory context of successive s3(10) decisions.

What is important is the way in which the Court of Appeal contrasted s2(1)(a) with s2(6), and thus s3(10) with s10(4), in order to reach the conclusion that the judge conducting the second s3(10) hearing was obliged to consider the statutory question as at the date of his hearing, and should not start from the findings of fact at the first hearing and then see whether circumstances required a departure from them.

Sir Anthony Clarke MR discussed this contrasting language at paragraphs 24-25, starting with a reference to the language of s2(6):

“24.

I have put the words continue in force in italics because they point to one of the key differences between a renewed or modified order and the original order. The other key difference is that there is no equivalent in section 2(6), or elsewhere in respect of renewed or modified orders, to section 2(1)(a), which provides that before making a non-derogating order the Secretary of State for the Home Department must have reasonable grounds for suspecting that AF is or has been involved in terrorism-related activities. In the case of a renewal or modification the statute takes it for granted that the Secretary of State for the Home Department has such reasonable grounds, no doubt in part because there will have been a hearing under section 3(10), at which that question will have been tested.

25.

It is significant to note that in such circumstances the controlee is not given the same rights as he has under section 3(10). His rights after renewal or modification are set out in section 10. Section 19(4), which relates to renewed orders, provides:

“The function of the court on an appeal against the renewal of a non-derogating control order, or on an appeal against a decision not to revoke such an order, is to determine whether either or both of the following decisions of the Secretary of State was flawed- (a) his decision that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; (b) his decision that the obligations to be imposed by the renewed order, or (as the case may be) the obligations imposed by the order to which the application for revocation relates, are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity”.

26.

Mr Otty submits that the differences between the functions of the court when a control order is first made and when an order is modified or renewed are significant because they show that, whereas in the first case the court must be satisfied that there are reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity, there is no such requirement in the cases of modification or renewal. For my part, I would entirely accept that the provisions are different and, indeed, that the statute provides that in every case of a new (as opposed to renewed) order the Secretary or State must have reasonable grounds for the belief just described.”

So Mr Hall submits that what was incorrect for s3(10) hearings is by statue imposed for s10(4) renewal appeals.

In my judgment, the contrast in language between s2(1) and s2(6) shows beyond argument that it is not part of the Court’s task on a s10(4) hearing to determine whether the earlier decision under s2(1)(a) was then or is now flawed. The distinction between the two powers was regarded as important in the Court of Appeal’s reasoning in AF (No.2). Evidence sought to be adduced for that purpose is not admissible. Mr Bennathan is right that that could mean in theory that where the original Control Order was shown comprehensively to be unjustified, even admitted to be unjustified, the Court dealing with its renewal could not rule against it on the ground that the original Order should never have been made. Mr Hall is right that the only remedy in respect of the original Order would be an appeal out of time to the Court of Appeal.

It is not necessary to consider Mr Hall’s alternative submission that it would be an abuse of process for it to be introduced; Laing v Taylor Walton (a firm) [2007] EWCA Civ 1146; [2008] PNLR 11. I would however have been strongly inclined to the view that the language of s10(3), shorn of the contrast with s3(10), required evidence to be admitted and not excluded if, by showing that the decision to make the Control Order in the first place was flawed, it could be shown that there was no need for the order to be continued. I would have regarded the nature of the statutory renewal appeal, with its own tests to be satisfied, as rather different from relitigating an issue by a side wind. This would avoid the problem which can arise, as this case could have illustrated, where different members of the same loose group are dealt with at different times on different evidence, and the evidence of the one on a s3(10) hearing bears favourably on another whose s3(10) hearing has been concluded.

I do not doubt that the Court on a s10(4) hearing must start from the basis that, as at the date of the Court’s decision on the original Control Order, the decisions under s2(1) were not flawed, and that it cannot re-examine that conclusion. That possibility is excluded by the deliberately different language of s2(1) and s2(6), and s3(10) and s10(4). The approach envisaged for successive s3(10) hearings cannot apply here. The Court of Appeal in AF(No2) did not hold that the approach of the judge at first instance would have been what s2(6) required. It was that s2(6) illustrated how limited were the restrictions on successive s3(10) hearings.

The question of what evidence is admissible for the purposes of s10(4) requires a consideration of the Court’s task. This statutory structure seems to me to require both SSHD and the Court to regard the s3(10) decision as decisive of the position as at the date of its decision on the issues under s2(1). Evidence is not admissible for the purpose of showing that the original decisions were flawed. If so, it then seems to me impossible to admit evidence for the purpose of showing under s10(4) that the renewal decisions are flawed, if the only way in which it does so is by showing that it was the decisions in relation to the original Order which were flawed.

It is illogical for evidence to be admissible when it only undermines a finding made on the original Order, but is to be excluded when it shows that the original Order decisions were flawed. The judge on the renewed Order appeal cannot be put in the internally contradictory position of accepting that a finding has been undermined while still having to approach the renewal on the basis that the original decisions were not flawed when that is what the evidence may indeed show. So evidence cannot be admissible for s10(4) purposes purporting to show that the renewal decisions are flawed, where it can only do so by undermining conclusions, findings of fact or assessments arrived at in the judgment on the s3(10) hearing even if the original decision itself remains not flawed.

As was held in AF (No.2), the Court exercising the powers under s3(10) must satisfy itself that the second Order was not flawed by reference to the statutory criteria. So too the Court exercising the powers under s10(4) must satisfy itself that the decisions under s2(6) are not flawed, as at the date of renewal and presently. Evidence which bears on those issues is admissible; it does not become inadmissible for that purpose because it might also tend to show that the decision to make the original Order was flawed or the findings wrong. But its admissibility for the purposes of s10(4) does not then enable the Court to alter its functions and consider it to see whether the original Order was flawed or whether the conclusions of the s3(10) judge should be discounted to some extent. That simply remains an impermissible task and an irrelevant inquiry; s2(6). The use of the evidence for that purpose must be ignored. If its only purpose in a s10(4) hearing is to show the renewal decisions were flawed by that route, it is simply inadmissible.

The evidence called on behalf of BF at his trial might be capable of showing that the degree or significance of BG’s involvement in terrorist-related activity has been overstated, because BF’s actions have been assessed as terrorist-related when they were innocent. The only purpose of admitting the evidence is to put into question the justification for the original Order or some of the conclusions and findings which Mitting J made, and thereby to show that the renewal decisions are flawed. It is therefore inadmissible.

Lest that approach be wrong, I have however considered the evidence of BF. There was a long statement from BF in his Control Order case which BG and Mitting J had at BG’s s3(10) hearing, but apart from asserting an innocent motive for his planned trip to Pakistan in March 2009, for the purposes of a family wedding, it did not go into the explanations he gave at trial. I accept Mr Bennathan’s contention that the evidence of BF at his trial was not realistically available to BG at his original Control Order hearing: BF was in Belmarsh, he would have enjoyed privilege against self-incrimination and criminal proceedings were extant, and the supporting evidence was not available. But the point that BF alleged that he was going to Pakistan for a family wedding in a statement which makes it clear that he denies any involvement in terrorist-related activity was before Mitting J and was considered and rejected by him. So his assertion at trial that that was his innocent purpose adds nothing new to the case, and that was the crucial assertion. The detailed explanation for the factors relied on by Mitting J and the Crown to show the criminal intent was however new.

There are two obvious points about the significance of BF’s evidence for BG. First, no significance can be attached to the fact that it lead to an acquittal since that only shows that the jury were not satisfied of guilt beyond a reasonable doubt, and the relevant evidential standard here is rather lower. Second, the jury did not have the closed evidence, which with the open evidence led to Mitting J’s conclusions about BG.

Turning to the detail, BF did not deny that he had gone to Pakistan in 2008, nor that he had met BG there; he said that it had been a coincidence. He explained his fingerprints on the letters from the Adam brothers, which did admit to terrorist-related activity, by saying that he had been shown them by a friend to whom they had been emailed, and who was to take them to the Adam family address, but wanted BF along in case there was a hostile reaction. BF said that he knew the Adam family address and would not have misdelivered them. One letter was incomplete because as the writer said “the brother taking the message had to leave earlier than expected”, so they were not emailed or posted but carried. The explanation offered by BF may be possible, but I do not see that it undermines Mitting J’s conclusion that there were at least reasonable grounds to suspect that the brother was BF.

I accept that the photographs of BF with guns were not taken in 2008, and that that was accepted at trial and before me. But Mitting J assumed that the photographs might have been taken on an earlier visit, without affecting his conclusion as to the purpose of BF’s visit in 2008.

It is all very well BF explaining correctly that the sleeping bag found in his rucksack was not adequate for much colder conditions than in the UK spring to autumn, but precisely where he was going on any terrorist-related activity was not ascertained, and it was present with a variety of other items, which taken together do not disturb the reasonable grounds for the inference that the purpose of the travel was terrorist-related.

BF admitted having extremist computer readable material, which he had just accepted at mosques. It could not be proved that he had viewed it, nor that he had not.

The Judge at the criminal trial directed the jury that the farewell letter was the most important evidence as to BF’s intentions. Mitting J had it and was able to form his own conclusions about its intent. He did not have the explanations offered by BF for its terms, including that he was angry at his family telling him not to go because that would have meant giving in to the warnings of the Security Service, his concerns for what might happen to him in Pakistan at the hands of the ISI, and his desire to help his family there and all Muslims. I do not regard the explanations as adding a great deal to the understanding of the letter, although it may help explain the references to Sharif, the solicitor. But its whole tenor is of a man writing what is likely to be his last letter to his family, not because of fear of what others may do to him, but because his Islamic duty requires him to risk likely death for the umma, the general community of Muslims, knowing that he may very well therefore never see them again. He seeks forgiveness not for running the chance that ISI may capture him but because he is going to do what his family have begged him not to do, since they were alerted to the views of the Security Service and rightly feared he intended. It is not difficult to imagine capture by the ISI as a consequence to be feared from his going to Pakistan for the purposes for which he was in truth going, and any assistance the British could offer to get him out of that would no doubt be welcome, but that was not the primary cause of his belief that he might not return. BF’s explanations do not warrant disturbing or modifying Mitting J’s conclusions about his intentions. Indeed, taken with the other evidence, BF may be regarded as fortunate not to have been convicted.

I have also read the SSHD’s second open statement in the Control Order proceedings against BF, in which she analyses the evidence given at the trial, in particular the evidence about the Adam brothers and the letters. I am satisfied that the conclusions of Mitting J in relation to BF, and hence in relation to BG remain completely sound.

But this evidence does not stand in isolation, as the cases against BF and BG run together to some extent, as is implicit in BG’s argument: the evidence against BG gives colour and support to the evidence against BF which in turn reinforces that against BG. I find it difficult to give any real credence to BF’s evidence, not least because of the farewell letter, and the contact with the Adam brothers in Pakistan which there are at least reasonable grounds for concluding happened. It does not really meet the evidence that group trips took place in 2008 and were planned for 2009, which included both BF and BG and makes highly unlikely a coincidental meeting in Pakistan in 2008. The equipment for which BG offered no plausible explanation shows what the purpose of the 2009 trip was. This also means that BG is relying on BF’s evidence, which there are at least reasonable grounds for suspecting he knows to be false, in order to eliminate or reduce the effects of the Control Order. In reality, that may make its necessity clearer, as indicating a continuing effort to mislead.

These conclusions are reinforced by the closed evidence and the closed judgment of Mitting J. I concluded, in considering the closed evidence that BF’s evidence and acquittal would have made no difference to Mitting J’s conclusions beneficially to either BF or BG.

I add that Mitting J sitting in SIAC delivered an open judgment on 10 May 2011 in which he again had to consider the activities of the group of which BF and BG were part; M1 v SSHD SC/101/2011. This concerned an Italian national who had converted to Islam, and had worked in Crawley, like others in the group. SIAC reviewed the evidence that there had been a group which included BF and BG as well as M1, which had gone to Pakistan in 2008 and had planned to return in 2009, and had done so for terrorist-related purposes. It did not believe what M1 said about those trips. Mitting J does not comment on the BF evidence at his trial. But I am reinforced in my view that the conclusions of Mitting J about the group are soundly based, and should not be disturbed by the evidence at the trial of BF.

Mr Bennathan raised a point about the role of the SSHD and the Special Advocates. The Special Advocates were asked on behalf of BG to consider whether, in the light of the closed evidence, there were any submissions usefully to be made as a result of the evidence of BF at trial. They did so and concluded that had BF given evidence and been acquitted before Mitting J’s judgments in December 2009, Mitting J’s conclusions would have been unaffected. CPR Part 76.25 (4) requires the Special Advocate to obtain the court’s consent to communicate with the Appellant, and by 76.25(5), the court has to notify the SSHD who, before the court decides, can object or consent to the communication. This means that the court and the SSHD see communications which would, but for this procedure, be legally privileged; the Special Advocate acts for the Appellant, and is not a friend of the court. The court and the SSHD consented to that note being communicated.

There can be and was no complaint about the views formed and actions taken by the Special Advocates; it was not suggested that they should not answer the point raised. They had acted as Special Advocates in other cases related to the group and were aware of the issues and evidence. They were obliged to follow the procedure they did, and acted properly in BG’s interests.

However, Mr Hall relied on that note to support his arguments that there was no point in revisiting Mitting J’s conclusions and that there was no merit in the points being made anyway. This generated understandable concern from Mr Bennathan, and indeed from Mr Birnbaum QC, leading Special Advocate. This note would normally have been privileged, and in any event as both sets of BG’s advocates agreed, the open advocates were still entitled to make what submissions they thought fit, and it was for Mr Birnbaum to make what points he nonetheless might still be able to make. The note does not represent admissions made by or on behalf of BG. On reflection, Mr Hall accepted that the SSHD ought not to make forensic use of such a note. I agree.

It is obviously necessary for the Special Advocates, if asked, to be able to warn an Appellant off a particular line which is either hopeless or even one the pursuit of which has the potential to make the case worse by opening up an Appellant to concern about his truthfulness or genuine out look. The SSHD will inevitably know of it. The Rules are quite explicit. But the SSHD ought not to use it as part of her case to the judge. The judge hearing the case may not then know of it, and there is no reason why he should. I do not exclude the possibility that, in these particularly unusual circumstances, the Special Advocates might ask that the necessary consent to communicate be sought from a judge who was unlikely to hear the case, explaining why. The judge hearing the case would then not know of the communication unless the Special or open Advocate told him, and there is in principle no reason why he should know. If the SSHD is precluded from forensic reliance on it, it could not form part of her case presented to the judge hearing the case.

The SSHD’s case took as its starting point the conclusions of Mitting J.

BG was required under the Control Order upheld by Mitting J to relocate from Crawley to Norwich. The assessment for November 2009 to February 2010 said that in Norwich he may have become a radicalising influence on Muslims, and may have provided advice on obtaining extremist material. He may have had contact with CA, one of the group with whom he went to Pakistan and planned to return. Contact with CA was prohibited; indeed one of the main reasons for the enforced relocation to Norwich was to separate BG from CA and from other extremists in Crawley. CA was living in Crawley except from February 2010 to August 2010, when he was relocated under a Control Order to Ipswich. Powerful family reasons then led to his return to Crawley. The Security Service assessed that BG deployed anti-surveillance techniques and security conscious behaviour, which it put down possible attempts to test the level of surveillance as he prepared to meet prohibited associates.

The Security Service alleged that in Norwich he had consistently breached his Control Order obligations in undertaking pre-arranged meetings without consent. It did not say that any necessarily had a terrorist-related purpose, but concluded that this behaviour reflected badly on his attitude towards compliance and could indicate a determination to overcome the obligations to engage in terrorist-related activity. There were occasions when he had arrived back after the 21.00 start of curfew, or had failed to make the required last call to say that he was back. BG offered various excuses, eg missing the bus or falling asleep, which the Security Service thought reflected negatively on his attitude. He was late for or missed his daily police station reporting twice. BG told police officers that he had acquired a new mobile phone in which he had put his SIM card, intending to give the old one to his wife when she arrived from Pakistan. He therefore had two mobile phones in his possession, which was prohibited. He was warned that breaches of the Order could lead to prosecution.

The Order was renewed with effect from 24 March 2010, and although it was appealed, the appeal was overtaken by the renewal in March 2011, and this appeal. The SSHD contended that BG maintained a desire to go to Pakistan for terrorist-related activities, to re-engage in terrorist-related activities but that renewal would restrict his abilities to do either, and to contact his extremist associates and plan such activity with them. The obligations in the first renewed Order were not reduced.

Thereafter, a further breach of the reporting requirement led to BG being charged with six offences of breaching Control Order requirements based on possession of the second mobile telephone and earlier reporting breaches; but the prosecution was eventually not proceeded with. In March 2011, the CPS offered no evidence, and BG was formally acquitted. It had concluded that there was no longer a realistic prospect of convictions since earlier breaches had not led to arrest or prosecution. BG was preparing to argue that he had reasonable excuses for the occasional failures, and that he had complied with the reporting and monitoring requirements on hundreds of occasions. That showed, submitted Mr Bennathan, the truer picture of his attitude.

There were a modest number of like incidents breaching the Control Order between March 2010 and March 2011, when it was renewed for the second time with effect from 10 March 2011.

On renewal, the SSHD relaxed the obligations in five respects: BG was permitted to return to Crawley to live with his parents on 17 March 2011 and with a boundary larger than he had had when previously subject to restrictions while living in Crawley; the curfew was reduced to the period 22.00-06.00, where previously it had been 21.00-07.00; BG would no longer need to report daily or at all to the police station; he could keep and use one computer with internet capability in his residence; and subject to a geographical limit could undertake study or training without prior approval though he still had to notify the SSHD of where he was doing so.

On 13 May 2011, the SSHD made further modifications to the Order in response to representations made by BG. The curfew is now 00.00 to 01.30 and 05.30 to 07.00. The purpose of this is to reinforce the residence obligation at a particular address; it is backed up by a tag and by reporting obligations to the monitoring company. There is now no restriction on pre-arranged meetings. The boundary limiting BG to a permitted area has been replaced by exclusion areas: a particular mosque, a fairly small area of Crawley, Bristol, and much of North East London, to enter which he needs prior Home Office permission. These exclusions relate to areas where his extremist associates live.

In addition, and responding to BG’s point that a bar on the use of internet enabled computers outside the home would severely restrict his ability to obtain employment, the Home Office wrote saying that as it considered his taking paid employment would a highly desirable step for him to take, any request for a modification to enable the use of such equipment in a specific job or to apply for a specific job would be regarded “extremely favourably”. The Home Office is also willing for him to move, if a suitable place can be found, to accommodation where he and his wife can live on their own rather than in his parents’ house.

The Security Service had received no intelligence to suggest that BG has been involved in terrorism-related activity since relocation to Norwich, nor indeed since the imposition of the Order in March 2009. However, it assesses that its renewal is necessary to provide control over BG’s activities to reduce the risk he poses to the public, and to restrict the opportunities to engage in terrorist-related activities, but that the obligations in it can be reduced. The Order was required to restrict his ability to travel overseas to engage in terrorist-related activity, and to restrict his contact with extremist associates aimed at co-ordinating plans for such activity. The Order had been effective thus far, and was the main reason for BG’s disengagement from terrorist-related activity. Without it, BG, who maintained his extremist views, would once again seek to go to Pakistan for such terrorist-related purposes or to re-engage in other ways in such activities. Nonetheless, the relaxation of the restrictions was part of a phased winding down of the Order, in the absence of indications that BG had re-engaged in such activities. The changes would assist and encourage BG to re-integrate into normal family and working life, and help him to show that he had abandoned the aspirations and influences which led to the Control Order. There was an increased risk from the relaxations, but the remaining obligations restricted where he lived, where he could travel, his contacts and to some extent his means of communication.

Mr Bennathan cautioned against the undoubted relaxations, welcome as they were, leading to the impact of the remaining obligations being understated. At the same time he questioned whether they were now sufficiently loosened for it to be seen that the Control Order was not necessary at all. I accept the former point. The remaining restrictions require him to reside at a stated address, and that is reinforced by electronic tagging and the reduced curfew; he has still to report when he first leaves the address after the end of a curfew and last returns to it before a curfew begins. He is prohibited from contacting 16 named individuals, many from the group of his associates who went to or planned to go to Pakistan, including M1, BF and CA. He has to permit the police to enter and search his residence or car at any time and to remove, test or modify equipment or other items they may find there; Mr Bennathan rightly describes this as intrusive, capable of creating misunderstandings and tensions, and as an example of the point that the relaxations still leave in place obligations which require proper justification. BG is restricted in the communications equipment he can use, bank accounts he can open and money transfers he can make without prior permission. He cannot leave the country, cannot have a passport or travel documents which would enable him to travel outside Great Britain, and, in addition to the specific areas from which he is excluded, he cannot enter any airport or seaport or international railway station without prior permission; this, he says, inhibits his possible return to work as a taxi-driver. He must notify the Home Office of any course of study or training or employment he undertakes, and he is prevented without prior permission from entering any premises which carry on business by providing internet capable computers, money exchange, ticket agency, or computer or telecommunications sales.

BG’s witness statements described the stress and loneliness of his time in Norwich, explained his few reporting lapses, and his worry at failing to comply with the many reporting requirements. He had been racially abused, he had been unable to work; Norwich was not a city he knew and he had no friends there. His wife had joined him there from her small village in Pakistan, she did not speak English, and wearing the niqab made her stand out in a way which would not have been the case in Crawley. She too felt very isolated. He attended a Sufi mosque, practising a form of Islam which was different from his and one which no extremist would go to since they would regard it as deviant; he had occasionally gone to another mosque to show that he was not taking sides. He had explained his situation to the mosque chairman.

He denied trying to radicalise anyone, or advising anyone about extremist material, he had never been in contact with CA, had never attended pre-arranged meetings and had never engaged in anti-surveillance measures. He might have got lost in Norwich in his car and performed manoeuvres which had been misunderstood. He felt that he was being watched the whole time. He had never tested the limits of the Control Order; the breaches were just lapses or honest mistakes since he was living in Norwich under stress, loneliness and boredom. This had not happened when he was in Crawley under the Control Order, at its start. He had no intention of going to Pakistan other than to see family members there. His first statement made it clear that having to live in Norwich was the main cause of the impact of the Control Order on him. His wife’s statement made that point explicitly. The statements of his parents and other relatives reflected BG’s own unhappiness in Norwich and the problems he faced there.

Mr Bennathan attached considerable significance to the statement from the chairman of the Sufi mosque attended by BG. The chairman said that BG stood out when he first came to the mosque because young men of Pakistani origin were rare at the mosque, and BG attended frequently during daytime. BG told him of his Control Order after a while, and the chairman raised with the local police with whom he liaised that he had not been alerted to BG’s presence. He saw BG fairly regularly since BG prayed there almost every day; they would talk every week and often discuss religion and their different understandings of Islam. He commented that those described as “extremist” Muslims would find the Sufi approach to Islam unacceptable, and have at times campaigned against the mosque. The mosque does not encourage wearing the niqab, and women attending the mosque do not wear it. He did not think that, in view of BG’s attendance and involvement in the Sufi mosque, BG could be described as having “extremist” or “radical” views. The other mosque, a Bangladeshi mosque which BG occasionally attended, would be more likely to have views closer to BG’s. Had BG wished to radicalise or to meet radicals, the obvious choice would have been to go to the University mosque, where there were many foreigners and impressionable young people. BG did not try to influence those attending the Sufi mosque, although testing their views. He did not think that BG would try to radicalise people. Had BG done so in Norwich, with its small Muslim community, he would have heard about it. The greater worry was that BG would get into the sort of trouble that idle young men get into.

In his later statement of March 2011, after his wife and he were living in Crawley, BG said that they had no need or desire to go to Pakistan, by implication, at all. His daily routine had changed so that his focus was on family and not on meeting those whom the Home Office considered to be extremists. He denied harbouring extremist views but felt that he could not deal with the allegation without more detail.

Mr Bennathan submitted that the Order was unnecessary now: it was first served on 23 March 2009, and the Security Service did not allege that in the succeeding two years BG had engaged in any terrorist-related activity. The level of activities asserted before the imposition of the Order, accepting the conclusions of Mitting J, were not of the most serious: he had not accepted that reasonable grounds existed for suspecting that BG had gone to Pakistan in 2008 for training or to fight; there had also been a legitimate reason for that trip, seeing relatives. BG had answered in detail the allegations that he was in a position to answer: there were reasonable explanations for the reporting breaches. It was BG who had told the police about the second mobile phone, and, as it had no SIM card, it was no more than the possession of a phone carcass for which he offered a perfectly reasonable explanation. He could not renounce views he had not held, and even if he had held them, it was unreasonable of the SSHD to expect a renunciation which would contain an implicit admission which could be used against him at a criminal trial. Instead, the evidence of the mosque chairman showed that BG did not hold extremist or radical views and did not try to radicalise others or advise on obtaining extremist material. He had done his best to deal with the allegations that he took anti-surveillance measures. The reduction in restrictions showed that there was little risk to the public, even though what restrictions there were would continue to have an impact which required justification. The Order served no useful purpose which could not be served by what might for a while be intense surveillance; and that would be the proportionate way now to proceed.

Mr Hall submitted that BG had been engaged in terrorist-related activity quite recently, assisting others to go to train or fight, and then planning to do just that himself a year later. He lied about what he did in 2008 and what he planned in 2009. The SSHD was now engaged in what was hoped to be the sensitive winding down of the Control Order, and its continuance with the phasing and degree of relaxation was very much a matter for the expert and considered judgment of the Security Service, which the Court should respect. There were sound reasons to believe that the Control Order had deterred BG from terrorist-related activities, and there were sound reasons for suspecting that, without continued restrictions on where he lived, whom he saw, where he could go and how he communicated, the risks that he would re-engage in terrorist-related activity were sufficiently high for it to be necessary still to protect the public by a Control Order. The risks permitted relaxations but did not mean that the Order itself was unnecessary. The Security Service assessment of his breaches and anti-surveillance actions should be accepted. Some of his associates were still in Crawley, and his contacts with them needed to be restrained. He had been inconsistent in his evidence as between his two statements on his intentions of travelling to Pakistan. He had given contradictory statements about the second mobile phone, in his Defence Case statement and to the psychiatrist instructed for the trial. Whilst the evidence of the mosque chairman was to be respected, there still had been no overt disavowal of extremist views by BG.

I am satisfied that the Control Order continues to be necessary to protect the public from a risk of terrorism. The necessary starting point is the judgment of Mitting J. There is nothing in BF’s evidence which causes me to alter or view them in a less unfavourable light. BG helped others to pursue terrorist-related travel plans, and then planned himself to go to train or fight. He has not told the truth about his intentions. He was undertaking these activities with a quite numerous group based in Ilford and Crawley, some of whom he has known for a long time. His intentions were actively pursued for nearly a year. These are not mere minor acts caught up by a widely expressed phrase.

I accept that it is largely the Control Order which has moved BG from terrorist-related activities, and he has now had two years without such involvement. I accept that it has been an unpleasant experience for him and his family, and if his experience of it has not caused him to rethink his attitudes, the Order and perhaps his marriage may have caused him to change what he does while he is subject to it.

I am prepared to accept that the breaches of reporting requirements do not show that he was challenging or testing the limits of the Order, and rather were caused by oversight, stress and difficulties in a strange city; I say that because they were infrequent, not very prolonged, occurred only in Norwich, and have to be seen in the context of general compliance with the numerous reporting requirements placed on him. I place no weight on the second mobile phone as an indicator of his outlook since he told the police about it, and the differences in explanation are not of real significance. I am not prepared to find significance in the differences in his two statements over his intention to visit Pakistan, since that intention can change over time, and his wife from Pakistan is here. I do not accept his explanation for all the anti-surveillance actions in Norwich which I believe took place and in which he tried to see what the limits of effectiveness might be. There are reasonable grounds for suspecting that there were prohibited contacts and pre-arranged meetings.

Far from being persuaded that Mitting J’s findings against BF and BG should be given less weight, I am satisfied that BF’s evidence at his trial about his intentions in planning to go to Pakistan was unlikely to have been true, and that BG’s attempt to rely on it, when there are at least reasonable grounds for suspecting that he knew the truth is a troubling sign of unchanged attitudes. There has been no renunciation of the views which caused him to do what he did in 2008 and 2009; Mr Bennathan may be right to suppose that that is an unrealistic expectation, but I see no disavowal of those views if held by others, even if he did not hold them himself. I give weight to what the mosque chairman said; I see no reason not to accept it. But it needs caution. If the religious dimension to BG’s actions had been “extreme” or “radical”, and had changed, since on the chairman’s evidence that he would not describe BG in those terms, that change, wrought perhaps under the benign influence of that mosque, is not acknowledged by BG. Any change there may simply be temporary. The chairman does not say either that he would describe anyone who did what BG is reasonably suspected of doing as inevitably “extremist” or “radical” in a religious sense. BG has not described his current views about the legitimacy of training or fighting in Pakistan or Afghanistan against their Governments or Coalition forces.

BG intends to remain in the Crawley area. There is an obvious but diminishing risk that, without restrictions, the views which led BG to do what he did will re-emerge back in Crawley, when he is in touch again with his extremist associates and friends, and that that will lead to re-engagement with the activities which led to the Control Order in the first place. I accept that BG’s willingness to act in that way may well have been affected by his experiences of the Control Order, the passage of time, and his marriage and hopes for a family.

I accept that the Home Office is engaged in the sensitive task of winding down this Control Order and that the point at which a reduced risk means that the Order is not necessary is one on which the judgment of the Security Service has to be given considerable respect. I judge that the fact that it has moved as far as it has and over a couple of months shows genuine consideration of risk, development and opportunities with some care and precision. If BG continues not to re-engage with the greater opportunities he now has, the Home Office is likely to facilitate further the normalisation of his life as it is doing. The degree and pace of that is a matter for careful judgment. The Home Office reacted quickly to representations about the effect of the obligations in the renewed order, as they applied to Crawley.

In my view, however, the decision that the Control Order is still necessary to protect the public is not flawed on judicial review grounds; the greater freedoms and opportunities he has and seeks, resident in Crawley, create opportunities for him and risks to the public of re-engagement in terrorism. These need to be restricted by a Control Order and the obligations which it can impose. The renewal was justified with the obligations as they then stood and as they now stand.

I am satisfied that these are all necessary for purposes connected to preventing or restricting BG’s involvement in terrorism–related activity. On the premise that the Order was necessary, I regard the group of obligations relating to enforcing residence in the one place as necessary even though the actual curfew is now quite short. I accept that a prohibition on going to airports or ports or railway stations with international routes will hinder work as a taxi-driver, even if the Home Office is not prepared to contemplate some relaxation for that purpose. But it is an important restriction in this case in the light of BG’s actions and those of the group, some of whom remain in Crawley. I do not doubt the genuineness of the Home Office willingness to contemplate permitting work at a place, once identified and if suitable, where access to internet enabled computers is available. The cumulative effect of the obligations is not in my view disproportionate to the risk or to the impact on BG and his family, and the decisions are not flawed.

Accordingly, the appeal is dismissed.