Secretary of State for the Home Department v BF

This is the hearing in accordance with s.3 of the Prevention of Terrorism Act 2005 (the 2005 Act) in relation to a non-derogating control order made by the Secretary of State with regard to BF under s.2 of the 2005 Act, by permission given by Ouseley J on 10^th November 2010. The control order imposed very extensive obligations and restrictions on BF, extending to 18 paragraphs (with sub-paragraphs). Those restrictions include, amongst other things, a requirement to wear an electronic monitoring tag; a residence obligation; a curfew period of 12 hours per day (albeit since varied by consent as to the precise times of day); reporting requirements; restrictions on people who may be met; restrictions on use of computers; notification of any employment; travel and passport restrictions; and, not least, a closely confined boundary restriction. There are other obligations and restrictions as well: but the above summary sufficiently indicates the extent and reach of the control order.

It is the case of BF at the hearing before me, conducted pursuant to the provisions of s.3 (10) of the 2005 Act, that the decision of the Secretary of State to make or maintain the control order was flawed and/or that the decisions on the obligations imposed by the control order were or are flawed. In this regard a further argument is developed on behalf of BF to the effect that the Secretary of State is under a public law duty to make provision that allows individuals subject to control orders a reasonable opportunity to demonstrate that the control order obligations are no longer necessary; and has breached that duty. Declaratory relief for this purpose is sought.

The hearing before me lasted four days. Parts of the hearing took place in closed session. This is my open judgment. I am handing down a separate closed judgment.

Before me, BF was represented by Mr Moloney QC and Mr Grieves. Ms Dhir QC and Ms Farbey QC appeared as Special Advocates. The Secretary of State was represented by Mr Tam QC and Mr Rupert Jones. I would like to pay tribute to the careful and thorough written and oral arguments presented to me by all counsel.

The principal relevant statutory provisions, for present purposes, are these:

“2 Making of non-derogating control orders

(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.

…

(4)

A non-derogating control order—

(a)

has effect for a period of 12 months beginning with the day on which it is made; but

(b)

may be renewed on one or more occasions in accordance with this section.

…

3

Supervision by court of making of non-derogating control orders

…

(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.”

I thus have to determine whether or not the decisions as specified in s.3 (10) of the 2005 Act were “flawed”. Section 3 (11) stipulates that the court, for this purpose, must apply the principles applicable on an application for Judicial Review. The powers – the only powers – which the court has are set out in s.3 (12) and (13).

The essential approach to be adopted is most conveniently and helpfully set out in the Court of Appeal decision in Secretary of State for the Home Department v MB [2007] QB 415; [2006] EWCA Civ 1140, at paragraphs 57 to 65, which passage still remains authoritative for this purpose notwithstanding subsequent and continuing legal developments in connection with the 2005 Act. In essence:

It has also been confirmed, by authority, that the Court first has to assess whether the requirements of section 2 (1) (a) and (b) were satisfied, and whether the obligations imposed were properly considered necessary, at the time the control order was made. If the Court so concludes it must then go on to consider whether that remains so at the time of the s.3 (10) hearing.

I have to consider the entirety of the evidence placed before me in determining whether the Secretary of State’s decisions, or any of them, were or have become flawed.

BF was born in the United Kingdom on 8^th May 1982 and has lived all his life in the United Kingdom. He is a British national, his parents having lived in the United Kingdom for many years but being originally from Mirpur in Pakistan. He has two sisters and two brothers, all resident in the United Kingdom. He is married, his wife being a British citizen, with family originally from the Philippines, and has a young daughter and young son. More recently, he has taken a second wife (also a British citizen), under a marriage Islamic in form, and a child is expected from that union. Before the control order mentioned below came into effect, he had excellent employment as a train driver: but he has lost that job in consequence of the order. In a witness statement dated 16^th June 2009 he has explained that his family are followers of the Sufi tradition of the Muslim faith and that he would describe his own beliefs as following the Hanafi tradition. In terms of pastimes, he says he enjoys physical training and has a particular interest in boxing.

There is no dispute that BF went to Pakistan in June 2008 and was there for a number of weeks. The purpose of such a visit is disputed. It has been and is the Secretary of State’s assessment that BF went to Pakistan to engage in terrorism related activities and for that purpose associated with others sharing a similar purpose and who also went from the United Kingdom to Pakistan at that time. These included, amongst others, individuals (a number of whom have had control orders made against them) who may be identified as BH, BG, HS and CA; as well as two brothers called Adam, who, though subject to control orders, absconded and subsequently went at that time to Pakistan from the United Kingdom to engage, as is assessed, in terrorism related activity. BF wholly disputes that that was the purpose of his visit.

In March 2009, as is not disputed, BF was again proposing to travel (on 14^th March) to Pakistan. It is the Secretary of State’s assessment that that too was for the purpose of terrorism related activities, although in the event the trip was aborted in circumstances set out below.

On 25^th March 2009, a non-derogating control order, containing very extensive restrictions and obligations, was served on BF, permission having been obtained from Mitting J on the 24^th March 2009. At that time, a search was also undertaken of his house. In a bag of BF’s there was found a letter, prepared by him at the time of his anticipated departure on 14^th March 2009, and addressed to his first wife. The letter, called before me “the farewell letter”, has loomed large in proceedings. It was not relied on at the time the first control order was made (it had not yet been found) and in the event it was not the subject of open disclosure by the Secretary of State for the purposes of subsequent proceedings relating to the first control order.

By way of appeal on a modification of the first control order (in respect of which BF made his lengthy statement dated 16^th June 2009), BF succeeded in reversing a requirement that he had to relocate to a town in the Midlands and so was enabled to return to his home in Ilford.

On 24^th September 2009 BF was arrested for suspected terrorism related activities. He was charged on 30^th September 2009. He was initially remanded in custody at HMP Belmarsh, but was eventually granted bail on 8^th December 2009, the bail terms being in effect at least as stringent as the control order obligations, and indeed with longer curfew requirements.

In such circumstances, and given that the criminal proceedings were under way, Mitting J on 27^th October 2009, on the first day of a s.3 (10) hearing in respect of the control orders relating to BF, BG and BH, directed the revocation of the control order which had been served on 25^th March 2009 against BF. The hearing with regard to BG and BH continued. On 15^th December 2009, by a fully reasoned written judgment, Mitting J concluded that there were reasonable grounds for suspecting that both BG and BH had been involved in terrorism related activity and that it was necessary to make and maintain a control order: the decision was not flawed. Some modifications to the obligations were, however, directed. In the course of his decision, Mitting J concluded that there was cogent evidence that BF (and others, including BG and BH) had planned or engaged in terrorist related activity in June 2008 and again had planned to do so with others (including BG) in March 2009.

So far as HS (a Pakistani citizen) was concerned, the Special Immigration Appeals Commission, with Mitting J as Chairman, in a fully reasoned written judgment given on 29^th January 2010, dismissed an appeal of HS against a decision to exclude him from the United Kingdom. The Commission held that, on the facts, HS clearly posed a threat to national security and the exclusion was proportionate. In the course of the judgment it was found that HS along with others – including BF, BG, BH and the Adam brothers – had travelled to Pakistan in June 2008 for terrorism related activities.

The trial of BF commenced in Snaresbrook Crown Court on 4^th October 2010 before the Recorder of Redbridge (Judge Radford) and a jury. The charge on the indictment, it may be noted, related solely to the planned trip to Pakistan in March 2009: there was no charge relating to the trip to Pakistan in 2008. The farewell letter was given great prominence at the trial by the prosecution: the Judge, in his lengthy and careful summing-up, suggested to the jury that it was a “crucial” document in the case.

On 8^th November 2010 the jury acquitted BF.

On 9^th November 2010 the Secretary of State decided to seek a new control order, for which permission was granted by Ouseley J on 10^th November 2010. It is that control order which is the subject of the s.3 (10) hearing before me, and in respect of which various directions have previously been made.

As it happened, the control order made against BG had been subject to a (second) renewal on 11^th March 2011. BG appealed under s.10 (1) of the 2005 Act. One of the grounds presented was the fact of the acquittal of BF which had occurred since the control order was first made; and new evidence (also deployed before me) was deployed with regard to BF, arising out of the trial. It was said that Mitting J’s previous findings had been undermined. Ouseley J rejected that argument. On his assessment of the evidence before him, by detailed judgment given on 13^th June 2011, he dismissed the appeal on a number of grounds. Indeed on his assessment of the evidence with regard to BF as placed before him, he concluded that “BF may be regarded as fortunate not to have been convicted”; and that Mitting J’s original conclusions with regard to BF, and hence with regard to BG, remained “completely sound”.

Three points can be made at this stage, arising from this brief chronology:

The Secretary of State’s assessment is contained in a Re-re-amended First Open Control Order Submission (re-amended in May 2011); an Amended Second Open Control Order Submission (amended in June 2011); and a Third Open Control Order Submission dated June 2011.

In addition, three witness statements (with exhibits) of Susan Hadland, a Grade 6 Civil Servant at the Home Office with general responsibilities with regard to control order cases, and a witness statement of AC (a member of the Security Service) were put in by the Secretary of State in the open proceedings. Each was cross-examined by Mr Moloney for the purpose of the open proceedings. They also gave evidence and were cross-examined in the closed proceedings.

There are a number of strands to the Secretary of State’s case that there were and continue to be reasonable grounds for suspecting that BF was involved in terrorism-related activity and for considering that a control order with these obligations was and is necessary and proportionate.

The Secretary of State’s case to an extent, as I have indicated, involves a degree of cross-over with cases of others with whom BF is assessed to have associated: most particularly BH, BG and CA, although there are further links with the cases of HS and another person (M1, an Italian national), and with others also assessed to have been linked to the group. (In the case of M1 the Special Immigration Commission, chaired by Mitting J, by a reasoned decision upheld a removal decision on 10^th May 2011). The overview assessment of the Security Service is that BF has been part of a network of UK based extremists seeking to obtain terrorist training in Pakistan: and that BF did travel to Pakistan (and met others) in June 2008 for such purposes and intended to travel to Pakistan (and meet others) for such purposes in March 2009.

The principal elements of the case are these:

I should add that the Security Service has since made an assessment (set out in the Second Amended Open Statement of June 2011) that a trip of BF to Pakistan in 2007 – referred to by BF as set out below – and the possession of £6,500 in cash found on him at that time also may have been for terrorism related purposes. However, this was apparently not relied on at the time the Control Order was made in November 2010 and I do not think it right to have regard to this in considering whether the Secretary of State had reasonable grounds for suspecting BF of terrorism related activity.

The main function, however, of the Second Amended Open Statement is to analyse the evidence given by and on behalf of BF at the criminal trial at Snaresbrook Crown Court, at which he was acquitted: and to explain why the Secretary of State continues to make the same overall assessment and to hold the view that BF had lied at his criminal trial. Nevertheless some concessions are now made. For example, it is accepted that the photograph of BF holding a rifle is to be dated to a family holiday in 2002 (not in 2008) and is not linked to terrorist activity. Mr Moloney was justified in emphasising that: the more so given that in the case of BG and BH, Mitting J – without, of course, hearing any evidence or argument from BF himself – had (understandably on what Mitting J had been told, but as can now be seen incorrectly) thought such photograph gave rise to a “secure inference” of engaging in terrorist related activity. Another concession, for example, is that the modified vests “may also have been intended for legitimate purposes”.

BF’s evidential case has been presented in two main ways. First, by the evidence put in by him in seeking modification of the first control order (since revoked): that includes his own very lengthy witness statement of 16^th June 2009, prepared principally for the purpose of his modification appeal; the statement of his mother dated 16^th June 2009; and the statement of his first wife dated 16^th June 2009. Second, by the transcripts of the evidence given by him and of the evidence given by witnesses on his behalf in the criminal proceedings, including his mother and his first wife and his sister and the solicitor Sharif. He also relied on his written witness statement dated 27^th May 2011, prepared for the purpose of this hearing, and a further short witness statement dated 29^th June 2011 put in (with my leave) during the hearing to explain the position concerning his second wife and their expected child.

BF was not tendered for oral examination before me: it is agreed, in the circumstances of this case, no adverse inference arises from that. Mr Tam did initially suggest that an adverse inference arose from BF’s failure in any shape or form to deal with the farewell letter before he gave evidence at the criminal trial. Mr Tam subsequently, and rightly, withdrew that suggestion. At the time BF made his first witness statement the farewell letter had not even been deployed by the Secretary of State. As to the failure of the Defence Statement in the criminal proceedings to deal with it, Judge Radford in his summing-up directed the jury to draw no adverse inference from that, on the basis that it had been prepared by his criminal legal team: and I think I should adopt that for present purposes.

Mr Moloney, for his part, attacked the failure of the Security Service to deploy in open submission – it had been referred to in closed submission in August 2009 - during the first control proceedings against BF, the farewell letter at any time before BF was arrested and charged and before the first control order was revoked. He queried the motives behind that. During the course of the hearing, and after a discussion in closed session, Mr Tam informed Mr Moloney that the reason was to protect the integrity of the criminal investigation. Mr Moloney then sought to have witnesses recalled so that he could explore that further. I refused his application; and I am quite satisfied that no unfairness or improper prejudice has been occasioned to BF by the course of events relating to the disclosure of the farewell letter.

In a nutshell, BF’s case is that he neither is nor has been engaged in terrorism related activity: and the security services have got it in for him. What, in summary, he says is this:

Mr Moloney advanced at the outset of his argument his proposition that the Secretary of State owed a duty, as a matter of public law, to BF (and generally to all other persons the subject of control orders) to provide him with a reasonable opportunity to show that the obligations contained in the control order were no longer necessary; and that the Secretary of State had failed to do that. He sought declaratory relief to that effect. He submitted that such breach rendered the decision to maintain the control order flawed; and that in any event such duty, and its asserted breach in this case, was to be taken into account when assessing the proportionality of the obligations imposed. Such matter also, he said, was relevant in considering a relaxation of the obligations imposed in order to achieve, by proportional means, a viable “exit strategy” for BF from the control order regime.

I have reached the conclusion that no such public law duty as is argued for exists.

Some initial points may be made about Mr Moloney’s submissions:

It seems to me that both those points justify at the least an initial scepticism as to whether such a public law duty really can exist at all.

Mr Moloney argued that such a public law duty was “inherent” or “implicit” in the language of the 2005 Act: in particular, in the frequent references – for example, in s.2 (1) (b), s.3 (10) and s.10 (5) – as to necessity. But in my view that does not follow at all. What one can see, from the structure of the 2005 Act, is that regular reviews of the situation are requisite; and there are frequent opportunities, conferred by the statute, for there to be independent judicial assessment of the need for, and continued maintenance of, a control order and each of the obligations contained in a control order. In the context of the statute, a controlled person has ample opportunity – for example under s.3 or s.7 or s.10 – to adduce evidence and make representations (whether to the Secretary of State or to the courts) as to why a control order should not have been made or should not be maintained or should be modified as to the extent of the obligations. Nothing in the statute, in my view, gives rise to such a public law duty as argued for. On the contrary, the statute itself provides mechanisms for a controlled person to show that a control order or its obligations are not (or are no longer) necessary.

Mr Moloney further submitted, however, that such a public law duty arose from the Secretary of State’s own policy pronouncements. He drew attention to the statement of Mr McNulty MP (then Minister for Security) of 12^th December 2007 referring to the need for “keeping under review” each control order to ensure that obligations remain necessary and proportionate and for the facilitation of reviewing “appropriate exit strategies”. In a Government Reply to the Report of Lord Carlile of Berriew QC of July 2007 the then Secretary of State, Ms Jacqui Smith MP, also referred to exit strategies and stated that:

“The Government believes it important to consider whether de-radicalisation and rehabilitation programmes could be deployed to help individuals subject to a control order. Such initiatives would form another potential exit strategy, though consideration would need to be given – as part of the Control Order Review Group process – to the appropriateness of such action in relation to each individual…”

In April 2008 she stated that:

“The consideration of exit strategies for each control order is an integral and significant part of the formal review held each quarter for every control order by the Control Order Review Group.”

I would make some comments on these statements. First de-radicalisation or rehabilitation programmes are not, I would have thought, exits in themselves. Any programme or course, speaking generally, is not an end in itself but a means to an end. Second, the Home Secretary was careful not to commit to the actual introduction (as opposed to consideration) of such programmes or courses. Third, she emphasised that such consideration had to take into account what was appropriate in each individual case.

I add that I have seen the Control Order Review Group quarterly review minutes relating to BF. They confirm such an approach with regard to him. Ms Hadland’s evidence, which I accept, was that discussions of reduction in risk were “integral” to such reviews.

Mr Moloney also referred me to various other statements and materials. These included proposals by the present Government for new laws, with a proposal to have a maximum time-limit of two years, to be exceeded only if there is new evidence of re-engagement in terrorism related activities. However there is no two year limit set by the 2005 Act or by the applicable policy pronouncements.

None of these public statements show the existence of the public law duty argued for. What the statements do show – consistently with the 2005 Act – is the need for constant review, with a view to an exit strategy, in each case. And that is what is happening generally – as the report of Lord Carlile of Berriew QC confirms – and is happening with regard to BF. The position is further elaborated by Ms Hadland in her third witness statement. I accept her evidence that there are regular reviews and ongoing consideration of exit strategies for controlled persons.

The current principal exit strategies available, as identified by Ms Hadland in her witness statements (reflecting previous policy statements), are prosecution, deportation, modification, revocation and non-renewal. In my view, consistently with the tenor of Ms Hadland’s evidence and accepting Mr Tam’s submission, there is no duty in the case of a controlled person to have any specific exit strategy in place at any one particular time: rather, the obligation is to keep all potential exit strategies under review. Clearly, however, in the case of BF deportation has never been a potential exit route and most probably, since the criminal trial, nor is (further) prosecution: but the other three are potentially very much in point.

Mr Moloney submitted (emphasising the Article 8 context and the grave restrictions on freedom a control order connotes and also citing authority for the purpose) that it is not enough for there to be a duty to review: the review must also be meaningful. But in my view the evidence shows that – consistently with the 2005 Act and the policy statements – there is indeed a meaningful review mechanism in place, both by way of the statutory provisions (with opportunity for appeals and modifications) and by the Control Order Review Group regular reviews: as well as through consideration of any relaxation proposals made on behalf of the controlled person. Thus to adopt the language used in the case of Bouchacourt v France Application 5335/06, cited in R (F) v Secretary of State for Justice [2011] AC 331, [2010] UKSC 17 at paragraph 32 (albeit a case involving a rather different context) there is a “concrete opportunity” for applying and there is a review process, itself subject to independent examination by the court.

Mr Moloney sought to draw an elaborate analogy with cases of Imprisonment for Public Protection (IPP). One can accept, in broad terms, that they at least have this in common with control order cases: an assessment of risk. Mr Moloney referred to the remarks of Lord Hope in R (James, Lee and Wells) v Secretary of State for Justice [2010] 1AC 553; [2009] UKHL 21 at paragraph 3, and Lord Brown at paragraph 28, to the effect that the Secretary of State had in that case rightly acknowledged that it was implicit in the statutory scheme of sections 224 and 225 of the Criminal Justice Act 2003 to make provision allowing IPP prisoners a “reasonable opportunity” to demonstrate to the Parole Board their safety for release.

But those remarks were made in the context of a wholly different statutory scheme and a substantially different category of individuals, viz. prisoners. Sentences of IPP, moreover, are indeterminate: in clear contrast with control orders. (It is true that control orders are potentially renewable but, if renewed, there is a right of appeal under s.10). Further, sentences of IPP, in contrast with control orders, do not carry with them the regular reappraisals by the Secretary of State and the opportunity of regular judicial evaluation. Yet further, the completion of a course is not and cannot be a pre-requisite for considering whether a control order has ceased to be necessary. Moreover, as Mr Tam pointed out, the potential exit strategies in control order cases are different, not least because in IPP cases the fundamental potential exit strategy is release.

The difficulty here seems to me to be highlighted by Mr Moloney’s disclaimer as to the form which “the reasonable opportunity” should take, whether in this case or generally. At all events, in so far as the provision of de-radicalisation courses was suggested, Ms Hadland in her evidence pointed to numerous difficulties as to that. One of them is that such courses as are available are aimed at preventing radicalisation of those assessed as vulnerable to it and there are obvious concerns in introducing a person assessed to be deeply radicalised into such a course and among such company. She also, understandably, pointed to the difficulty of offering de-radicalisation courses to a person who consistently denies he has been radicalised. Overall, as she said, de-radicalisation is “fraught with problems”.

In any event, I also do not see why a degree of self-help may not be appropriate here: and that remains so, even if Ms Hadland in her oral evidence was not herself able to suggest what BF might do specifically. The position is quite different from those in prison on IPP. The present case provides an example. BF has via his gym activities been associating, with permission, with an individual called Usman Raja, whom BF has visited to assist him in martial arts training and who (BF has said) can also assist with de-radicalisation. After approaches by those acting for BF, the Secretary of State, during the course of the hearing before me, was able to make contact with Mr Raja. Mr Raja then produced by email an undated and unsigned document, on paper headed “The Unity Initiative”, proffering a report on BF purporting to be as at 19^th May 2011. Given the circumstances and contents, I am not in fact myself prepared to give any significant weight to the report. But it illustrates the possibilities available to controlled persons. Further, it is open to a controlled person to make proposals to the Secretary of State for specific support or assistance. More fundamentally, the possibilities are always there, under the 2005 Act, in the form of requests for modifications (with the prospect of challenge to an adverse decision under s.10) which a controlled person may make if the obligations are unduly restricting him in his chances of showing that he is no longer posing terrorism related dangers or that the obligations are no longer necessary. It may be noted that the Secretary of State here expressly had in correspondence permitted BF to meet Mr Raja: albeit BF himself seems to have provided no other firm evidence that he has in fact attended any specific de-radicalisation course with Mr Raja (or anyone else).

I might add that Mr Moloney’s claimed analogy with sentences of IPP faces another difficulty, as it seems to me (reflected in Ms Hadland’s evidence mentioned above). Ordinarily, a refusal by a convicted person to accept guilt will count very strongly, sometimes conclusively, against him with the Parole Board. But what then is to be the position in control order cases where the controlled individual – as here and as is the norm – positively is denying any extremism or involvement in terrorism related activity? To what effect will any such courses then be put?

I agree that Ms Hadland in cross-examination had some difficulty in explaining the existence of any specific steps with regard to enabling BF to show he no longer posed a risk and for achieving an exit. She also accepted that no specific programmes had been developed for controlled persons generally. (She in fact made clear that, so far as she was concerned, she gave primacy to the Security Service’s assessment as to whether or not there was a continuing risk). But all that does not mean there is any public law duty to provide specific programmes or other opportunities, nor does it show any breach, systemic or otherwise, of duty on the part of the Secretary of State. I repeat, my finding on the evidence is that the position of BF, as with all controlled persons, is being consistently (and properly) reviewed with a view to assessing the necessity or otherwise of the control order and of each of its obligations, and with a view to aiming at an exit.

Given all that, this aspect of BF’s argument fails. I add that, given the way the asserted duty was formulated, I very much doubt that, as a matter of discretion (assuming I had jurisdiction and was not precluded by s.3 (12)), I would have been prepared to make any declaration of the kind sought, even if the argument had persuaded me. This is all the more so when no specific step, by way of “reasonable opportunity”, has been identified on behalf of BF which, if it had been given by the Secretary of State, would be shown in causative terms to have had a likely effect on the continuation of the control order or its obligations. But in the event the point does not arise.

I should also add that Ms Hadland stated in evidence that there are currently just twelve control orders in existence: a scenario very different from IPP cases. She also pointed out that in the past there have indeed been assessments of reduction of risks, in cases where controlled persons have always denied involvement in terrorism related activities, and a number of control orders have been revoked or not renewed, as well as modified. All this goes to confirm the other evidence: that the reviews in control order cases are both regular and meaningful, and are directed towards a meaningful exit strategy in each case.

Reviewing the totality of the evidence and documents before me I am in no doubt that there were and are reasonable grounds for suspecting that BF has been involved in terrorism related activity. My own view is that that accords with the (very strong) probabilities on the facts: and the Secretary of State’s assessment thus was reasonable and is in no way flawed.

It is the combination of factual circumstances which justifies that conclusion: indeed if BF’s contentions were correct they would involve happenstance and coincidence to an utterly implausible degree. There can be no doubt that he was in Pakistan (not in Karachi, however, although Karachi was the stated destination on his visa) in June 2008 at a time when others known to him, properly assessed as linked to terrorism related activities, were also there. There can be no doubt again that he was planning a further trip to Pakistan in March 2009 when others known to him – some of whom he met shortly beforehand and themselves properly assessed to be linked to terrorism related activity - were also proposing to travel to Pakistan at around that time. Yet further the links of the Adam brothers to terrorism related activities is incontrovertible. As to the explanation advanced at the criminal trial, and maintained before me, as to how, via contact with Khan, BF’s fingerprints were found on the letters from the Adam brothers (albeit it is emphasised other fingerprints were also found) without connoting any kind of involvement in couriering the letters or with the Adam brothers, such explanation, taken on its own, is implausible but (perhaps) just about possible. It becomes highly improbable when it is seen that the whole alleged incident concerning Khan and the letters occurred very shortly after BF had returned from Pakistan and where he had been assessed to be associating with others properly assessed to be linked to terrorism and had been there precisely at a time when the Adam brothers themselves had been assessed to have gone to Pakistan.

Further, there are great discrepancies between the evidence of BF as to who he met in Pakistan (and how he met them) and the evidence of others, most particularly BG, on this. I appreciate total consistency between accounts can sometimes itself be regarded as suspicious: but here the level of inconsistency is such as to be difficult to explain through faulty recollection or the like.

BF’s suggestion that he had been approached in 2007 to assist the security services was wholly denied at the criminal trial, and such allegation was not made in his first control order witness statement of 16^th June 2009. His whole case that he has since been victimised and picked on – no other member of the group seems to have made such an assertion - is generally difficult to accept.

As to the evidence of the mother, wife and sister, the Secretary of State (in common with the prosecution at trial) do not accept it as truthful and reliable: and there are indeed grounds for thinking it has in a number of respects been moulded to support BF’s case. By way of example, the relevant prosecution witnesses all denied having contacted the mother in March 2009 in the way she claimed, thereby causing her to “confiscate” the passport of her own accord because of her own concerns about the “dodgy” (a word she herself at a previous stage had used) company her son was keeping and through her fear that his proposed visit in 2009 to Pakistan was related to extremist activity. The assessment is that this confiscation was done through the mother’s own concerns unprompted by the Security Service. There are also a number of inconsistencies generally between BF’s account and his mother’s and sister’s accounts which it is not necessary here to set out.

Then there is the farewell letter. BF had, of course, been cross-examined at great length on it during the criminal trial. A number of points were raised, then as now, as to why that letter did not bear the interpretation placed on it by the prosecution at trial and by the Secretary of State in her current assessment. For example, Mr Moloney said that if BF had indeed been intending terrorism related activity in Pakistan in March 2009, along with others, he would not be likely to tell his wife to inform the authorities by 18^th March if she had not heard from him – since that would potentially expose the group. Further, the letter has references to his wanting to keep his job open; nor are there any references in it to jihad or to martyrdom. Overall, it is said this letter, written in a hurry, is consistent with BF’s case that he wrote it in emotional turmoil at a time when he was determined not to be pressured or bullied by the security services or deterred from his planned trip.

In my view, however, this letter is of the greatest significance and is indeed, as Mr Tam submitted, highly incriminating. It contains no reference to the Security Service having recently contacted BF’s mother. It indicates that BF was contemplating parting from his wife and children for good: not that he was facing detention or mistreatment by the Pakistan Intelligence Services at the behest of the Security Service. The reference to helping the “ummah” (community) of Mohammed is inconsistent with a trip planned to accompany and assist his sister and his mother. Reading the letter, the general tone and content is that of a man being compelled by a sense of obligation to Allah to travel in circumstances where he considers he may not return. It very strongly supports the assessment of the Security Service.

The overall assessment, and individual points of assessment, were confirmed by AC in his evidence to me. AC’s evidence also was to the effect that the assessment currently remained that there was no reduction in risk so far as BF was concerned (which was also Ms Hadland’s assessment, on behalf of the Secretary of State, in paragraph 30 of her third witness statement). AC was a most authoritative and impressive – and, I might add, even-handed – witness, with a real grip on all the underlying details. I wholly accept his evidence.

In cross-examination, Mr Moloney put a number of points to AC. For example, AC agreed that the photograph, found in BF’s house, showing BF holding a rifle – a matter, as I have said, to which Mitting J had attached significance – had initially been relied on by the Security Service; but, in the light of the evidence given at the criminal trial, it was accepted that it quite possibly related to 2002 and could not be relied on as indicating terrorism related activity. He agreed also that a suggested inconsistency in BF’s evidence at trial had in truth resulted from a transcription error of an individual’s name: there was no such inconsistency, and thus that an error had crept into the assessment in this regard. He agreed too that of the literature found at BF’s house, there were no manuals on explosives or militaristic manuals; and that of documents found, they were on a single disc and only one file – shown to have been accessed possibly some two years earlier – related to literature which may be described as extremist. When asked about the letters from the Adam brothers, he agreed that other (unidentified) fingerprints were found. He could neither confirm nor deny the existence of investigations into Khan. As to the mother, AC maintained that the assessment was that she herself was aware of BF’s terrorism related activities. Although he accepted that the sister did marry in December 2009 and also that she and her mother went to a family wedding in Pakistan in March 2009, he made clear that it was not the assessment that BF was to accompany them for that purpose. He was also asked about Usman Raja – he said he knew nothing of him. He was asked whether, if there had indeed been a network, as was the Secretary of State’s case, it could now be regarded as disbanded. He said that was not the assessment, although he accepted that contact between the members would be very much reduced if they adhered to the control orders.

In my view, while in some respects the initial case of the Secretary of State when the control order was first sought in March 2009 has since had to be modified (reflecting, indeed, the continuous reassessment adopted), the main planks of the case remain. They also amply justify the continued assessment of BF’s desire for involvement in terrorism related activity and a continued assessment that there has been no reduction in risk.

When I then test this against the conclusions of Mitting J and Ouseley J in the related cases – stressing, I repeat, that I have not regarded them as starting points and that I have made my own prior evaluation with regard to BF – those operate to support my conclusions.

I have also considered in this context the evidence received by me in closed session. Nothing in that undermines my conclusion. On the contrary it supports it.

Section 3 (10) requires me also to consider whether the Secretary of State’s decision under s.2 (1) (b) was flawed; and to consider whether the decisions on the imposition of each of the obligations imposed by the control order were flawed.

Mr Moloney did not seek to advance any argument to the effect that, at the time the control order was originally made in March 2009, the decision under s.2 (1) (b) was flawed, even if the decision under s.2 (1) (a) was not flawed. Instead he realistically focused on the subsequent and present position: indeed I in law have to assess the position as at 10^th November 2010 and as at the date of the hearing. He eloquently advanced his client’s concerns that this control order might prove to be open-ended: the more so when BF was steadfastly maintaining that he had had no involvement in terrorism related activity. I entirely agree with Mr Moloney that such a continued denial could not of itself – indeed, nothing could – justify an indefinitely renewed (i.e. permanent) control order. But given my findings set out above as to the regularity of meaningful review, and given the ultimate judicial control, I see no reason at all to think there could be indefinite renewal in this case. It has also been pointed out that proposed new legislation may come into effect later this year: and it is interesting to see that that prospective new legislation in fact had been addressed in a Control Order Review Group review to 22^nd March 2011 in assessing whether the obligations might be reduced, as had been requested on behalf of BF by letter of 27^th January 2011, to match a (prospective) Terrorist Prevention and Investigation Measure: a proposal rejected on national security interest grounds.

Mr Moloney emphasised that BF has been under most extensive restrictions of one kind or another since March 2009: that is, for some two years and three months. He submitted that the assessment of future risk was based substantially (he withdrew the epithet “entirely”) upon historical allegations over two years old. That is in some ways so. But it does not follow at all that there is a “default position”, as Mr Moloney asserted, that the control order should now be lifted: nor, as I have said, is there any policy requirement that mandates that any control order be determined after two years.

Mr Moloney at all events went on to submit that the obligations contained in the control order were no longer necessary or proportionate.

He emphasised that there is no direct evidence of engagement in terrorism related activity since March 2009. He said that BF had also now been through the experience of the criminal trial and also had a mother and (first) wife anxious that he keep out of any trouble. Further, he drew attention to the very substantial modifications that have since been accepted with regard to BG. However, as I see it, the following has to be borne in mind (and has been by the Secretary of State):

There is shown, in my judgment, a proper and justified assessment of continuing risk, as reflected in the evidence of AC and Ms Hadland which I have summarised above. It is also, I think, to be borne in mind that, on the evidence, BF retained his close involvement with terrorism related activity notwithstanding his experiences in Pakistan in 2008 (and also, on his own case, his experiences at the airport in 2007); notwithstanding the evident strong disapproval of his first wife and mother – attested to in their own statements – of the company he was keeping; and notwithstanding concerns previously expressed in 2008 to his family – for example by Emma Bruce (not her real name) of the Security Service to his wife: on his first wife’s evidence, she then told him and his mother of that. None of this had, by 2009, operated to deter him. Mr Moloney did rely on the evidence given by the mother, first wife and sister at the criminal trial to the effect that BF had to be persuaded to travel in March 2009, because he had been so put off by his past experiences. But, as outlined above, there are ample grounds to support the assessment that such evidence was not truthful.

Moreover, there have been over the past few months a significant number of breaches of various obligations in the control order. Some are, I accept, trifling: for example, a failure promptly to notify an interest in a car to be used by BF and his second wife, and which failure his solicitors frankly accepted was due to their own omission. A failure to notify the existence of three bank accounts in his name is, on the face of it, rather more serious: but it is not really said that there was anything sinister about that and in any case no significant sums are involved.

However there are numerous other breaches: none in themselves necessarily particularly serious (at least on the face of it), but cumulatively troubling. Indeed BF was arrested on 11^th April 2011 in respect of all the alleged breaches (he made no comment at interview and has put in no evidence before me as to the alleged breaches) and a decision whether charges are to be laid is awaited. These alleged breaches include fifteen instances of failing to call the monitoring company and about unauthorised meetings with his second wife; contacting a prohibited associate; and possessing a second mobile phone. The assessment is maintained that BF has breached his control order on numerous occasions. It is not said that these breaches of themselves indicate renewed terrorism related activity. But it is said that that, taken cumulatively, they reflect negatively on his attitude and mindset: the more so given the assessment of his evidence, at the criminal trial and otherwise, as untruthful and given the lack of any direct renunciation. I should add that, with regard to the prohibited associate, in his first control order witness statement BF accepted that he knew him: in a witness statement dated 20^th April 2011, however, he stated “I do not know of any person by the name of [the prohibited associate]”. Mr Moloney said there may be an explanation for that discrepancy, but if so he was not in a position to give it.

The Third Open Submission also alluded to the fact that BF has not obtained or sought employment, which might have promoted constructive attitudes (BF says he has been too depressed or overwhelmed). Mr Tam also submitted that BF’s marriage to his second wife, herself assessed to have an extremist mindset, is very disquieting, as is his potential estrangement from his first wife who had not given indications of any such mindset.

Taken overall, it is a proper and reasonable assessment that a control order imposing obligations continues to be necessary. In my judgment, it is also proportionate. There is no flaw in the decision.

The final matter is to consider whether the decisions on the imposition of each of the obligations are flawed. The statute is specific that consideration has to be given by me to the decisions on the imposition of each obligation.

The Re-Amended First Open Statement gives a detailed justification with regard to each obligation as to why they are considered necessary and proportionate.

Each of BG, BH and CA continue to be the subject of obligations under control orders (and, as I have concluded, so should BF). Mr Moloney submitted in his closing submissions that the obligations on BF should as a matter of parity be no greater than, and should be co-extensive with, those imposed on BG. Indeed, he said that was so “as a matter of principle”.

I have great difficulty with that. The position of BG is not to be taken as identical with that of BF. The Secretary of State’s assessment was that BF had a more prominent role in the group than some of the others and that was and is an assessment properly open to her. Further, BG’s response to a control order may have been different; and BG has been the subject of a control order as such for much longer than BF, with the opportunity for the Secretary of State’s assessing compliance with that order and modification of attitudes and for considering (and agreeing to) modifications. The potential exit strategy for BG by no means has been required to mirror that for BF or vice-versa. (Incidentally, it can be said that the progressive relaxations of the control order adopted with regard to BG is further illustrative of there being meaningful reviews with a view to a meaningful exit strategy). As Mr Tam submitted, and I agree, the nature, degree and timing of relaxations to a control order must be the subject of very careful consideration.

Yet further, no proposal of relaxation of the control order to make it correspond, at one go, with that now applying to BG has previously been advanced on behalf of BF in order to enable the Secretary of State to make a decision as to whether the obligations should be so modified. Nor was there any cross-examination by Mr Moloney of AC or Ms Hadland to explore this suggestion, or to get their assessment of proposed comparability with BG and to gain their specific views of such a proposal: although I think it implicit in what AC told me that any suggestion that BF’s obligations now be reduced to accord with those applicable to BG would have been strongly refuted as contrary to national security interests. (I was told that, for example, BG is – now - subject only to a three hour curfew; has no geographical boundary restriction, as opposed to specified exclusion zones; is not required to report daily; does not have the same internet access restrictions; and so on). It seems to me that whilst corresponding reduction may or may not in due course be achieved for BF, as with BG, BH and CA, as part of an exit strategy, that is not at present required on grounds of proportionality.

No alternative specific modifications were pursued by Mr Moloney, although he did emphasise the restrictions so far as they related to contact with his second wife. I am nevertheless required to consider and have considered whether the imposition of each of the obligations remains justified and proportionate, or whether the decisions to do so are flawed. I have applied an intensity of review appropriate to the Article 8 context and restrictions on liberty, as indicated in MB, while seeking to show appropriate deference to those entrusted with the initial decision making. Doing that, I accept the justifications put forward in the Re-Amended First Open Submission and the evidence of AC and Ms Hadland, and I uphold each of the obligations currently contained in the control order. There was, and remains, no flaw in their imposition and, given the circumstances, they remain proportionate. It is of course open hereafter for modifications to be sought and made, and with the right to appeal under s. 10 of the 2005 Act also available.

I did, all the same, have particular concerns as to the impact of the obligations in the control order with regard to BF’s second wife and his relationship with her. She has responsibilities for three children of her own and a baby also is now expected, with a difficult pregnancy. However, she will have known that she has married a man subject to a control order and prosecuted for a terrorism offence; and herself has been assessed to share an extremist mindset and to engage in security conscious behaviour, including at her own home. Under the current order, they are of course not precluded from meeting in non-curfew hours; albeit there can be no total freedom of meeting between the two (and in fact her home is outside the permitted boundary area). It seems to me that the present situation is, given all the circumstances, justified in so far as it impacts on BF’s family life with his second wife. Again, specific requests can hereafter be made to the Secretary of State.

I add that the question of the continuance of certain of the obligations in the control order, and the question of whether some should be the subject of directions of modification under s.3 (12) (c), was also a subject of the closed proceedings before me. My findings and conclusions there do not displace my findings and conclusions here, but support them.

Considering all the evidence, I conclude that:

I therefore uphold the control order and each of its obligations.