Secretary of State for the Home Department v CD

In these proceedings the appellant, CD, challenges the decision by the respondent, the Secretary of State for the Home Department (SSHD) to make him subject to a control order by way of a review under section (3)(10) of the Prevention of Terrorism Act 2005 (PTA).

The Background

He came to the attention of the Security Service which assesses that he is the leading figure in a network of Islamist extremists based in North London, and that he is involved in planning a terrorist attack with his close associates TM and MS, and possibly others.

The open allegations made against CD are in summary:

On 1 February 2011 Mitting J gave permission to the respondent to make a non-derogating control order, and further made an order for anonymity pursuant to CPR 76.19. The control order was made and served on the appellant on the same day.

The schedule to the order set out the obligations imposed on the appellant. Obligation (2) required him to reside at an address in North London, but also stipulated that he would be relocated to an address in the Midlands no earlier than three days after the service of the control order. By a letter served with the control order, the appellant was notified that he would be relocated on 4 February 2011. By letter dated 3 February 2011 solicitors acting for the appellant asked the respondent to re-consider his relocation. The request was refused; and on 3 February the appellant’s solicitors filed a Notice of Appeal seeking modification of the control order. The appellant was duly relocated to the Midlands on 5 February.

On 10 May 2011 Simon J heard the relocation appeal, and on 20 May gave judgment dismissing the appeal.

On 8 June 2011 there was a hearing under CPR Rule 76.29 before Mitting J in which he ordered that

The Legal Framework

What section 3(11) means in practice was explained by the Court of Appeal in SSHD v MB (2007) QB 415, (2006) EWCA Civ 1140. At paragraph 44 Lord Phillips of Worth Matravers CJ (as he then was), said that “…a purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the SSHD to keep the order in force is flawed…” and continued at paragraph 46 –

“46.

For these reasons we consider that section 3(10) can and should be ‘read down on’ so as to require the court to consider whether the decisions of the SSHD in relation to the control order are flawed as at the time of the court’s determination.”

In SSHD for the Home Department v AF (No.3) [2009] 3 WLR 74 Lord Phillips addressed the nature of the exercise to be carried out by the court under section 3(10) at paragraphs 60 - 67 –

“60.

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

At paragraph 67 he went on to consider the standard of proof –

“… The PTA authorises the imposition of obligations where there are reasonable grounds of suspicion. That issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may have involved considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on the balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the procedure for determining whether reasonable grounds for suspicion exists that has to be fair if article 6 is to be satisfied.”

At paragraphs 63 – 65 Lord Phillips set out the proper approach to the section 2(1)(b) question of whether a control order is necessary for the protection of members of the public from a risk of terrorism:

“63.

Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligation that it is necessary to impose may depend on the nature of the involvement in terrorism-related activities of which he is suspected. They may also depend upon the resources available to the SSHD and the demands on those resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance.

64.

The SSHD is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the SSHD. That it is appropriate to accord such deference in matters relating to state’s security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instance: SSHD for the Home Department v Rehman [2001] UKHL 47, [2003] 1AC153; Republic of Ireland v United Kingdom (1978) 2 EHRR 25.

65.

Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed upon an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous and intrusive and, in such cases, the courts should explore alternative means of achieving the same result. The provision of section 7(2) for modification of a control order ‘with the consent of the control person’ envisages dialogue between those acting for the SSHD and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations.”

The issues

The Article 6 – fair trial issue

In AF (No3) the House of Lords addressed the question of procedural fairness to an individual the subject of a control order at a section 3(10) hearing. The opinions of the House are encapsulated in that of Lord Phillips –

“59.

Contrary to Mr Eadie’s submission, I am satisfied that the essence of the Grand Chamber’s decision lies in para. 220 and, in particular, in the last sentence of that paragraph. This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials, the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.

…

64.

The best way of producing a fair trial is to ensure that the party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identity should be disclosed. Both our criminal and our civil procedures set out to achieve these aims. In some circumstances, however, they run into conflict with other aspects of the public interest, and this is particularly the case when national security is involved. How that conflict is to be resolved is a matter for Parliament and for Government, subject to the law laid down by Parliament. That law now includes the Convention, as applied by the HRA. That Act requires the courts to act compatibly with Convention Rights, in so far as Parliament permits, and to take into account the Strasbourg Jurisprudence. That is why the clear terms of the judgment in AY v United Kingdom resolved the issue raised in these appeals.

Before AY v United Kingdom, Strasbourg had made it plain that the exigencies of national security could justify non-disclosure of relevant material to a party to legal proceedings, provided that counter balancing procedures ensure that the party was accorded “a substantial measure of procedural justice”: Chahal v United Kingdom 23 EHRR 413, para. 131. Examples were sited by the Grand Chamber in AY v United Kingdom, at paras 205 – 208, covering the withholding of material evidence and the concealing of the identity of witness. The Grand Chamber has now made it clear that non-disclosure cannot go so far as to deny a party knowledge of the essence of the case against him, at least where he is at risk of consequences as severe as those normally imposed under a control order. ”

In this context my attention was also directed to the decision of the Court of Appeal in Bank Mellat v Her Majesty’s Treasury [2010] EWCA Civ 483 in which Lord Neuberger MR, with whom Maurice Kay and Sullivan LJJs agreed, said at paragraph 21 –

“2.

The first point to make is that the requirements of Article 6 are such that the information to be provided to the Treasury must no merely be sufficient to enable the Bank to deny what is said against it. The Bank must be given sufficient information to enable it actually to refute, in so far as that is possible, the case made out against it.”

It was common ground that the court is under a continuing obligation to consider whether the requirements of Article 6 have been met. As Lord Phillips observed in AF (No3):

“68…in the section 3(10) hearing, the judge will have to consider not merely the allegations that have to be disclosed in order to place in the open sufficient to satisfy the requirements laid down by the Grand Chamber, but whether there is any other matter whose disclosure is essential to the fairness of the trial.”

The open material

Part A – extremist training

Also present at the camp were a number of other Islamist extremists. Four of the five attempted suicide bombers involved in the failed attacks on London on 21 July 2005, Saeed Muktar Ibrahim, Yassin Omar, Hussein Osman and Ramzi Mohammed were present at the camp. All four were subsequently convicted for their involvement in the failed attacks and sentenced to life imprisonment. Others attending the camp included AP who was placed on a control order in 2008, Adel Yahya who was convicted of collecting information useful to a person committing or preparing an act of terrorism in November 2007 in relation to the attacks planned to take place on 21 July 2005, Dawit Semeneh and Joseph Kebide, both of whom were subsequently excluded from the United Kingdom on grounds of national security, Mohammed Al Figari who in February 2008 was convicted of attending terrorist training and processing information likely to be useful to a terrorist and Mousa Brown who was tried but acquitted of offences relating to terrorist training but whom the Security Service nevertheless assesses to be an Islamist extremist.

The respondent also relies upon the assessment by the Security Service that CD attended meetings organised by Hamid at his home in early 2004, and that the meetings were for the purpose of recruiting and radicalising individuals into extremism.

The third element of the Security Service case as to extremist training is the assessment that whilst in Syria between late 2005/early 2006 and 23 April 2009 CD undertook extremist training. No further detail is provided in re-amended 1OS.

Part B – Attack Planning

In this context reliance is also placed upon the record of the ‘ports stop’ interview, carried out on CD’s return to the UK from Syria on 23 April 2009. The content of the record of interview is summarised in re-amended 10S in the following terms:

“14.

During the ports stop, officers from S015 spoke with (CD) regarding his stay in Syria and his religious and political views. Throughout his interview (CD) openly discussed the subject of Islamist extremism. (CD) claimed that there was a war going on against what he called the ‘evil people’. The interviewing officer noted that when he explored this term further he discovered this referred to non-Muslims who acted against the will of Allah. The security service assesses that (CD) holds very strong Islamist extremist views and feels obliged to undertake a role in an ideological war against all non-Muslims.

15.

(CD) was asked about his thoughts regarding the 7/7 terrorist attacks in London in 2005. At first (CD) claimed not to be aware of the attacks. However, he did later admit to some awareness. The interviewing officer noted that during this discussion about the attacks, (CD) laughed and could not bring himself to condemn the actions of those who perpetrated the attacks.

16.

(CD) was under the impression that he was under constant surveillance and had been since 2003. (CD) was also under the impression that his mobile phone was being intercepted by the authorities. The security service assesses that this level of suspicion is likely to have resulted in a very high sense of security awareness.

18

… the security service assesses that the ports stop interview given by (CD) was a relatively candid display of his Islamist extremist views. The security service notes that his stated views regarding the on-going war between Islam and the “evil people” arguably gives an insight into how he might justify his planned attacks.”

The interviewing officer, a Metropolitan police officer with 15 years experience, who has been carrying out the role of port stop officer for two years, also noted that CD appeared to have “been thoroughly dry cleaned of any information that may prove useful”. The Security Service assess that prior to his flight to the United Kingdom, CD made sure that he was not carrying any items or information that might be useful to the authorities should he be stopped at the airport.

Attempts to Procure Firearms

The third element of the intelligence case with regard to attack planning is summarised under the heading “Covert Meetings with his associates”. The Security Service assesses that between October 2009 and October 2010 CD attended numerous covert meetings with TM and MS in North London. As to meetings between CD and MS the Secret Service assesses, by way of example, that they met in January, July and August 2010, and that the meetings related to the development of the group’s attack plans and CD’s attempts to procure firearms. Similarly with regard to TM it is assessed by way of example that they met in October 2009, April 2010 and August 2010, and that as in the case of MS, the meetings related to the development of the group’s attack plans and CD’s attempts to procure firearms.

Part C – Security Awareness and Access to Extremist Media

As to access to extremist media, the assessment is that between 2009 and the imposition of the control order, CD has used internet cafes for that purpose.

Mr Burton QC, who appears for CD, submits that the allegations contained in the re-amended 1OS, as supplemented by the second and third Security Service Submissions (2OS and 3OS) are of so general a nature, that CD is unable to give effective instructions to his legal advisers, and can do no more than make a bare denial. That submission reflects the position taken by CD in a statement dated 5 May 2011 which contains the following –

“I am aware of the allegations that have been made against me but I cannot make any comment on the same and I have been advised by my legal team that until I have received specifics of the allegations and further details, it would not be appropriate for me to comment on the same.”

It is to be noted that the statement is not signed by CD.

Mr Burton focussed his argument on the two allegations against CD in relation to which the least information is given in the re-amended 1OS, namely the assessment in paragraph 11 that whilst in Syria, he undertook extremist training, and secondly the assessment that between December 2009 and the imposition of the control order, he “has used internet cafes to access extremist literature”.

As to the first he argued that as no indication is given as to when and where it is alleged that such training was undertaken, nor as to the nature of such training, CD is unable to give effective instructions to his legal advisers. But as M/s Giovannetti submitted in response, it is open to CD to give instructions as to where he was in Syria during the relevant period, and as to what he was doing there, and thereby to give substance to a bare denial if it be his case that he was not involved in extremist training. Similarly with regard to the use of internet cafes, Mr Burton submitted that CD cannot answer the allegation without knowing the location of the café or cafes in question, the date and time of their use, and the nature of the material that it is alleged that he sought to access. But again as M/s Giovannetti submitted, if it is denied, he can rebut the allegation by stating whether or not he accepts that he has used internet cafes during the period in question, and if so, when, where and for what purpose or purposes.

I am satisfied that CD has been informed of the essence of those allegations, such as to enable him to give effective instruction to his legal advisers, and to refute the allegations in so far as it is possible to do so. That being the case, the argument cannot succeed in relation to the remaining allegations each of which is particularised to some extent in the re-amended 1OS.

I should add that I have also given consideration to the question of whether any matters have arisen in the course of the open and closed hearings the disclosure of which is essential to the fairness of the trial. In my judgment there have not.

The reasonable grounds issue

First he placed considerable reliance upon the fact that the CPS has stated that there is insufficient evidence upon which to charge CD with any terrorism offence.

On 28 January 2011 the Metropolitan Police wrote to the Home Office saying that the CPS “…have concluded that there is insufficient evidence to disclose a realistic prospect of conviction for a terrorist offence against (CD) at the present time”. In the course of the hearing, a further letter from the Metropolitan Police to the Home Office dated 8 July was produced in which the Deputy Assistant Commissioner – Counter Terrorism Command stated that material regarding CD held both by the police and the Security Service has been reviewed, and advice sought from the CPS, which had formally advised on 8 July that “having reviewed material available to them, there was insufficient admissible evidence that could realistically be used to charge (CD) with an offence relating to terrorism”. The Deputy Assistant Commissioner further stated that the police will continue to review and examine material relating to CD.

Mr Burton argued that the fact that CD has not been charged with any terrorist offence, notwithstanding the large quantity of material seized on the search of his premises following his arrest, strongly supports his case that he has not been involved in any terrorism related activity, and in this context pointed to the wide range of offences created by the Terrorism Acts of 2000 and 2006.

But the underlying principle of the PTA is that a control order will only be made where there is no realistic prospect of successfully prosecuting the subject of the order for a terrorism related offence, see SSHD v E and another [2008] 1 AC 499 and in particular paragraph 14 of the speech of Lord Bingham of Cornhill. Thus the fact that the CPS have concluded that there is insufficient admissible evidence that to warrant charging CD with a terrorism related offence, does not of itself undermine the SSHD’s decision that there are reasonable grounds for suspecting that his is, or has, been involved in terrorist related activity.

Secondly Mr Burton submits that there is no sustainable evidential basis for the allegations contained in the re-amended 10S. True it is that the re-amended 1OS does not set out the evidential basis for the assessments that it contains. But that is the inevitable, and it has be said inherently unsatisfactory, consequence of the open/closed procedure permitted under CPR part 76. It does not follow from the fact that the re-amended 10S does not set out the evidential basis for the assessments upon which the SSHD made her decision, that there was no sustainable evidential basis for such assessments.

Thirdly Mr Burton submitted that the decision of the SSHD is demonstrably flawed in two respects. First it is common ground that MS, with whom CD is assessed to have been involved in planning to carry out a terrorist attack in the UK, moved from North London to a town in Lancashire in November 2010. In her second witness statement dated 28 April 2011, Susan Hadland, who gave evidence in open on behalf of the SSHD, said at paragraphs 6 that during the preparation for the appeal, the Security Service noted that the statements seen by the Home Secretary in making her decision to impose the control order “… included incomplete information about the location of one of CD’s prohibited associates”, and at paragraph 7 that the matter was brought to the SSHD’s attention on 19 April, who has since confirmed that the information, namely that MS had moved to a town in Lancashire, would not have changed her decision, either in making the control order against CD or in deciding to relocate him outside London.

The point was further explored in cross-examination both of the Security Service witness, AD, and of M/s Hadland. AD said that it was his understanding that the SSHD had been made aware of MS’s relocation prior to 19 April but not by the Security Service directly. Miss Hadland said that after the search of MS’ premises on 26 January 2011, a submission was put to the SSHD which contained a reference to his being in Lancashire, and that although it was possible that the SSHD had noted the fact and made the link when making her decision to impose the control order on CD, it could not be assumed that she had done so, hence the decision to draw it explicitly to her attention with the request for a decision as to whether it would have affected her decision either with regard to the imposition of a control order or to the relocation of CD.

In my judgment the fact that the SSHD may not have known that MS had moved from London to a town in Lancashire when she made her decision to impose the control order, does not render the decision flawed by reference to the principles applicable on an application for judicial review. When set in the full context of the material available to the SSHD in making her decision, her lack of knowledge (if that be the case) that MS had moved to a town in Lancashire was not such as to undermine her conclusion that the criteria for the imposition of a control order were satisfied. Any possible doubt as to that was removed by her subsequent decision by which she confirmed that her original decision would have been the same.

A similar argument was advanced by Mr Burton with regard to one of the allegations of an attempt to procure a firearm. The security service assessment is that CD attempted to obtain a firearm from B-W in early 2010; but the Security Service acknowledged in 30S that B-W has been in custody since October 2010. That does not appear to have been brought to the attention of the SSHD when she made her decision; and Mr Burton therefore submitted that her decision was flawed in that she was proceeding on the premise that one of the people from whom CD had attempted to obtain a firearm, remained a possible supplier. The intelligence case is that CD has made several attempts to procure firearms from his North London based criminal associates. The fact that one of the individuals with whom he is assessed to have made such an attempt has been in custody since October 2010 and is now serving a substantial sentence of imprisonment, does not materially affect the weight to attach to such attempts in considering whether there were reasonable grounds for suspecting CD’s involvement in terrorist activities. The fact that it was not drawn to the SSHD’s notice that B-W has been in custody since October 2010 does not render her decision flawed.

Finally Mr Burton relied upon the chronology of events, and in particular that the last alleged attempt to obtain a firearm was in July 2010, and the last alleged covert meeting with MS in October 2010 and with TM in August 2010. He argued that there was nothing in the re-amended 10S to suggest that by the date of the control order, 1 February 2011, CD had any continuing involvement in terrorist activity. Suffice it to say that I have taken his submission into account in my consideration of the material before me in closed.

Conclusion

The necessity issue

As to the first, and for the reasons set out in the closed judgment, I am satisfied that the control order was and remains necessary for the protection of members of the public from the risk of terrorism presented by CD and his associates. It is necessary to disrupt his group of associates and to reduce so far as it is possible to do so, his ability to engage in terrorism-related activity.

But it is then necessary to consider the necessity for each of the obligations imposed on CD. In undertaking that exercise I have subjected each to the requisite level of scrutiny, but have borne in mind the deference to be paid to the decision taken by the SSHD.

The obligations imposed on CD were conveniently summarised by Simon J at paragraph 48 of his judgment on the appeal against the obligation imposed on CD to relocate to the Midlands:

“45.

It is also material to consider the protections provided by the other unchallenged obligations in the control order. These include electronic tagging, a home curfew from 17.00 to 09.00, an obligation to report on the first occasion that CD leaves the property after the end of the curfew period and on the last occasion on return before the curfew begins, a requirement to report daily to a police station, restrictions on those permitted to enter or remain in the property at the specified place, restrictions on meeting people outside the property by prior arrangement and communicating with TM and MS in any circumstances, restrictions on communicating with anyone outside of the United Kingdom without proper agreement and restrictions on leaving a confined area of the relocation place. There are further requirements to allow searches of property to be carried out and restrictions on the use of mobile telephones. CD is permitted to visit a mosque of his choice within the permitted area to which he is limited, but no other. He is also forbidden from accessing the internet or entering any premises with internet facilities without prior permission, as well as having any interest in more than one bank account. There are restrictions on the transfer of money and entering ports, railways or airports, and an obligation to surrender any passport or travel documents. There are restrictions on entering training programmes and academic courses and obligations to inform the SSHD of any employment undertaken.”

There can be no doubt that the obligations amount to a very considerable interference with CD’s family and private life within the meaning of Article 8, and I must therefore consider their proportionality to the objective at which they are directed. In that regard it is well established that in a case involving an individual suspected of involvement in terrorist activities, an interference with convention rights may more easily be justified as proportionate because its object is to protect the public from the risk of terrorism, see Wood v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 per Dyson LJ at paragraph 84.

In this context I have taken into account the witness statement from M/s Hadland dated 20 May and 7 July 2011, in which she addresses inter alia the procedures in place for consultation and review, the extent of the restrictions in the order, and the way in which requests to vary or clarify aspects of the control order have been dealt with. I have also taken account of the witness statements served by CD in support of the appeal and directed to the impact of the obligations imposed by the control order, namely the statements of his father, his mother, and his wife.

Mr Burton’s submissions on this issue were directed to three obligations, CD’s relocation to the Midlands, the curfew imposed by paragraph 2.2 of the schedule containing the obligations, and the obligations to report daily both to the monitoring company and at a designated police station, paragraphs 3.1 and 3.2 of the schedule.

I have given further consideration to the obligation to relocate to the Midlands, but in the absence of any further developments since Simon J gave judgment on the relocation appeal, I am in full agreement with both his reasoning and his conclusion as to the necessity for relocation. As he put it at paragraph 53 of his judgment:

“53.

… I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist related attack. While he is living in London there is a significant risk that he will take part in terrorism-related activities, notwithstanding the high level of protection implicit in the obligations which are not under challenge. Coming to this conclusion I recognise that the interference with CD’s rights is substantial.”

As to the curfew period imposed by paragraph 2.2 of the obligations, CD must remain in his residence “… at all times save for a period of 12 hours between08.00 and 20.00”. Mr Burton submits that such a curfew is unduly onerous, particularly in the summer months. He suggested extending the period for which the curfew does not apply to 22.00 hours. This was not a point that was tested in cross-examination with either of the witnesses called on behalf of the SSHD. In my judgment it is a matter on which I should defer to the view of the SSHD, acknowledging that she is better placed to decide the measures that are necessary to protect the public from CD’s terrorist activities. I am satisfied that the curfew imposed by her was and remains necessary.

Thirdly Mr Burton challenges the necessity for both daily reporting to the monitoring company under paragraph 3.1 and daily reporting at a designated police station. He argues that a proportionate requirement would be for CD to report daily either to the monitoring company or to a police station, but not to both. Again this was not a point put to the SSHD’s witnesses, so that they did not have the opportunity to explain why the combination of both reporting requirements is considered to be necessary. But it appears that they serve somewhat different purposes. The obligation to report to the monitoring company requires CD to telephone when he leaves the premises on the first occasion after the curfew has ended, and on the last occasion that he returns to the premises before it begins again. The justification for that obligation is set out at paragraph 30 of the re-amended 10S, namely that the security service considers that the less time that he is able to be outside his home and therefore able to re-engage in terrorism-related activities, the greater the reduction in the risk that he poses. It is also asserted that the obligation will make his movements easier to monitor so that any engagement in terrorism-related activities will be more easily detected. The justification for the requirement to report daily to a police station is set out in paragraph 31, namely that the security service considers that it is necessary to provide assurance of his whereabouts and reduce the risk of him absconding from the control order.

As in the case of the length of curfew, this is a point upon which deference should be paid to the decision of the SSHD; and I am satisfied that the reporting obligations are a necessary and proportionate measure to protect the public from the risk of terrorist attack presented by CD and his associates.

Although the remaining obligations were not the subject of submissions by Mr Burton, I have subjected each to the intense scrutiny that is required. The justification for each of the obligations is set out in paragraphs 24 - 48 of the re-amended 10S, and amplified in the witness statements by M/s Hadland. I have come firmly to the conclusion that each is a necessary and proportionate measure for the protection of the public from the risk presented by CD and his associates.

Conclusion