Secretary of State for the Home Department v AY

AY appeals under section 10(1) of the Prevention of Terrorism Act 2005 (“the PTA”) against renewals of the Control Order, which was imposed on him on 28 July 2008. When the Terrorism Prevention and Investigation Measures Act 2011 (“the TPIMA”) replaced the PTA, Ouseley J gave permission on 17 January 2012 to impose measures under a TPIM notice and an anonymity order was made. On the following day, the Secretary of State signed the TPIM which was duly served on AY on 23 January 2012 when his Control Order was revoked. There is also before the court a review pursuant to section 9 of the TPIMA of AY’s TPIM notice.

Although the Control Order has been revoked and the PTA repealed, paragraph 3(1)(c) of Schedule 8 to the TPIMA preserves the duty of the Court to determine appeals continued under section 10(1) of the PTA, but these preserved proceedings “may not have a purpose other than determining whether one or more of the following should be quashed… the renewal of a Control Order [or] …an obligation imposed by a Control Order”.

For the purpose of the present proceedings, AY is content to focus on the legality of the TPIM notice rather than upon renewal of the Control Order as it is the TPIM that continues to have an impact on him. Counsel for AY has made it clear that in agreeing to this procedure, AY does not accept that the Control Order was necessary at the time that it was renewed in July 2011 or subsequently.

The background is that AY was born in Birmingham on 5 August 1981 and he is a British National of Pakistani origin. In 2002, he was wanted by the police in relation to a serious offence, which was not terrorism-related. He then left the United Kingdom and spent the following four years living in Pakistan and for a short period in South Africa. While he lived in South Africa, AY assumed the identity of a South African National so as to obtain a South African passport. In June 2006, AY married a British National, and in July 2006, he and his wife travelled to the United Kingdom from South Africa by way of Mauritius with AY travelling under his assumed identity.

In August 2006, AY was arrested in connection with a Plot to mount multiple terrorist attacks and he was remanded in custody. In the same month, he was charged with offences of conspiracy to murder and engaging in conduct preparatory to acts of terrorism. AY and others were duly tried on an indictment containing four counts in a trial which started in April 2008.

All the defendants pleaded not guilty to Count 1 in the indictment, which was a charge of conspiracy to murder and which was described in the particulars as conspiracy to murder by the detonation of improvised explosive devices (“IEDs”), and to Count 1A which was a simple charge of conspiracy to murder. The jury convicted three of the defendants on Count 1A, but they could not agree in respect of the remaining counts. AY was acquitted. There was a retrial of those defendants in respect of whom the jury at the first trial could not agree and, as I will explain, there were guilty verdicts at the second trial. Those found guilty received sentences of life imprisonment with the minimum terms imposed ranging from 18 years to 40 years.

On 8 September 2008, a Control Order was imposed on AY and it was renewed on 27 July 2010 and 21 July 2011. In June 2010, there was a hearing under section 3(10) of the PTA, which constituted a review of the Control Order which had been imposed on AY on 8 September 2008.

In an open judgment handed down on 26 July 2010 with the neutral citation number [2010] EWHC 1860(Admin) (“the 2010 judgment”), Owen J held that:-

“57.

Given the extremely serious nature of the Plot and the conclusions to be drawn from the material summarised above as to AY's role within it, I am entirely satisfied that it was necessary to impose the Control Order. I am also satisfied that it remains necessary bearing in mind the material that indicates the organisational role that he played, and the material indicating his potential future engagement in terrorism related activities, see paragraph 58 above”.

Later in his judgment Owen J said that:-

“59 ..I am satisfied that the Secretary of State was justified in her conclusion that AY is a committed Islamist extremist who would represent a risk to the public if free from the constraints imposed by the Control Order”.

As I have explained, on 23 January 2012, the Control Order imposed on AY was revoked and the TPIM notice was served on AY. On 2 April 2012, variations were made to the monitoring measures, and on 30 April 2012, AY appealed against the variation to his TPIM. On 24 May 2012, which was just before the present hearing started, a variation was made to AY’s exclusion zone in Birmingham.

AY has appealed against the reporting measures imposed on him and the disclosure provisions pursuant to CPR 80.25 have not taken place, and so it has been agreed that this should be adjourned to another hearing in front of me. This approach accords with the comments of Thomas LJ in BM v Secretary of State [2011] EWCA Civ 366 [30] – [33].

AY also objects to the extent of the exclusion zone. There has been a dispute as to whether I should deal with that matter in this judgment, but I have concluded that I should accede to the submission of AY that I should deal with it together with the reporting measure appeal as both measures relate to the necessity of particular restrictions and so it is appropriate they should be dealt with together at the adjourned hearing.

When I was drafting this judgment, I appreciated that although I had been asked to take account of statements in Hansard, no submissions had been made on the relevance of Pepper v Hart [1993] AC 593 or to a case applying it, namely R v Secretary of State for the Environment ex parte Spath Holme Ltd [2001] 2 AC 349. I therefore decided to ask Counsel for their submissions on this issue, even though the statement relied on by AY was not made during the course of the debates on the Bill, which later became the TPIMA. It then became clear that Mitting J was about to hand down a judgment in Secretary of State for the Home Department v AM [2012] EWHC 1854, which dealt with the so-called “novel issue”, which was the same as the one raised in the present case and so at the request of Counsel, I agreed to give them an opportunity to make written representations to me after that judgment was handed down on 6 July 2012. They duly provided helpful submissions, which I will consider in paragraphs 165 to 167 below.

The requirements for imposing Control Orders and TPIMs

Section 1(1) of the PTA defines a “Control Order” as “an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism”.

Section 2(2) of the TPIMA defines “terrorism prevention and investigation measures” as requirements, restrictions and other provisions which may be made in relation to an individual by virtue of Schedule 1 of that Act. By virtue of both s.15(1) of the PTA, and s.30 (1) of the TPIMA, “terrorism” has the same meaning as in the Terrorism Act 2000 which provides, at section 1 (insofar as is relevant) that :-

“(1)

In this Act ‘terrorism’ means the use or threat of action where -

(a)

the action falls within subsection (2),

(b)

the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c)

the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2)

Action falls within this subsection if it -

(a)

involves serious violence against a person,

(b)

involves serious damage to property,

(c)

endangers a person’s life, other than that of the person committing the action,

(d)

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

(e)

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

(3)

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

(4)

In this section—

(a)

‘action’ includes action outside the United Kingdom,

(b)

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

(c)

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

(d)

‘the government’ means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.”

Section 1(9) of the PTA and section 4(1) of the TPIMA both define “terrorism-related activity”(“TRA”) in this way:-

“…involvement in terrorism-related activity is any one or more of the following -

(a)

the commission, preparation or instigation of acts of terrorism;

(b)

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

(c)

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

(d)

conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) to (c);

and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism generally.”

Under section 2(1) of the PTA, the Secretary of State:-

“… may make a [non-derogating] 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.”

Section 1(3) of the PTA empowers the Secretary of State to impose under such a Control Order:-

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

By section 2(1) of the TPIMA, the Secretary of State may impose specified terrorism prevention and investigation measures on an individual if conditions A to E are met, and the key conditions are (section 3(1)-(6)):-

“...A…the Secretary of State reasonably believes that the individual is, or has been involved in terrorism-related activity…

…C…the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.

…D…the Secretary of State reasonably considers that it is necessary, for purposes of preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.

…E…the court gives the Secretary of State permission under section 6, or the Secretary of State reasonably considers that the urgency of the case requires terrorism prevention and investigation measures to be imposed without obtaining such permission.

(6)

In this section “new terrorism-related activity” means –

(a)

if no TPIM relating to the individual has ever been in force, terrorism-related activity occurring at any time (whether before or after the coming into force of this Act);

…”

The test of “reasonable grounds to suspect” that apply to Control Orders is a lower threshold than “reasonable belief”, the test applied to TPIM notices. In A & Ors v Secretary of State for the Home Department [2005] 1 WLR 414, Laws LJ stated at [229]:-

“Belief is a state of mind by which the person in question thinks that X is the case. Suspicion is a state of mind by which the person in question thinks that X may be the case”.

That was adopted by POAC in the Secretary of State for the Home Department v Lord Alton of Liverpool & Others, 30 November 2007 at paragraph 105.

Neuberger LJ gave further useful guidance in A & Ors,when he said that:-

“371.

In these circumstances, I think that there are two problems with the appellants' criticism that SIAC failed to apply a proper standard of proof. The first is that, in deciding whether there are, as a matter of fact, reasonable grounds for suspicion or belief, SIAC is not necessarily concerned with primary facts, and, to that extent, there is no need to establish a primary fact on the balance of probabilities. For instance, subject to consideration of its reliability (which may raise all sorts of factors) a newspaper report relating to the activities of an appellant may be taken into account by the Secretary of State under s21 or by SIAC under s25. In such a case it is not necessary for SIAC to be satisfied on the balance of probabilities that the reported facts are true; it would merely need to be satisfied, on the balance of probabilities, as to the existence of the newspaper report. (I should emphasise that SIAC may, even if so satisfied, give no or little weight to the contents of the newspaper report, if it thought it right to do so.) Secondly, when considering whether there are reasonable grounds for the relevant belief or suspicion, SIAC need not, as I have sought to explain, be concerned about satisfying itself that, on the balance of probabilities, the belief for suspicion is justified, or that it shares the belief or suspicion. It is merely concerned with deciding whether there are reasonable grounds for such belief or suspicion.

372.

The question of whether someone is an international terrorist can be said to be a matter of fact, whereas the question of whether he is a threat to national security is itself a matter of assessment. However, the question of whether there are reasonable grounds for suspecting a person is a terrorist and believing he is a threat to national security is a question of assessment.”

In R v Saik[2007] 1 AC 18, Lord Brown observed at [120] that. “To suspect something to be so is by no means to believe it to be so: it is to believe only that it may be so”.

The review function of this Court

Section 10 of the PTA sets out the function of this Court in considering the substance of the Control Order made as follows:-

“(4)

… The function of the court on an appeal against the renewal of a non-derogating Control 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; and

(b)

his decision 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”.

At a review hearing under section 9 of the TPIMA:-

“(9)(1)…the function of the Court is to review the decisions of the Secretary of State that the relevant conditions were met and continue to be met;”

In both appeals brought under section 10 of the PTA and reviews under section 9 of the TPIMA, ‘“the court must apply the principles applicable on an application for judicial review” – see s.9 (2) of the TPIMA and s.10 (6) of the PTA.

Proceedings under section 10(1) of the PTA are civil proceedings. The Court of Appeal has explained in a statement equally applicable to TPIM notices in Secretary of State for the Home Department v MB [2007] QB 415 at [53] that:-

“It is implicit in the scheme that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a Control Order.”

In MB, the Court of Appeal distinguished between two elements of the Secretary of State's decision in Control Order proceedings (i) whether there are reasonable grounds for suspecting that the controlled person is or has been involved in terrorism-related activity; and (ii) whether it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make the order.

In dealing with the second question in Control Order cases, (i.e. whether the Secretary of State’s decision on necessity was flawed), the Court in MB also provided the following guidance:-

I agree with the submission made on behalf of the Secretary of State that the same approach applies to the Court’s review, under section 9(1), of the Secretary of State’s decisions on the necessity of TPIM notices.

Prior to repeal, the powers of the Court in Control Order cases were set out in sections 3(12) and 3(13) of the PTA:-

“(12)

If the court determines…that a decision of the Secretary of State was flawed, its only powers are –

(a)

power to quash the order;

(b)

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

(c)

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

(13)

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

By paragraph 3 of Schedule 8 to the TPIMA (see above), the sole purpose of s. 10(1) hearings is to determine whether the renewal of a Control Order or any obligation therein should be “quashed”.

The circumstances in which a Court will quash an order or an obligation will generally be limited to cases in which the order or obligation should never have been made. Section 9(5) of the TPIMA provides that:-

“(5)

The court has the following powers (and only those powers) on a review hearing—

(a)

power to quash the TPIM notice;

(b)

power to quash measures specified in the TPIM notice;

(c)

power to give directions to the Secretary of State for, or in relation to,

(i)

the revocation of the TPIM notice, or

(ii)

the variation of measures specified in the TPIM notice.

(6)

If the court does not exercise any of its powers under subsection (5), the court must decide that the TPIM notice is to continue in force.

(7)

If the court exercises a power under subsection (5)(b) or (c)(ii), the court must decide that the TPIM notice is to continue in force subject to that exercise of that power.”

Introduction

As I have already explained, the review of the court requires an analysis of the five conditions in section 3 of the TPIMA and they are:-

The Effect of AY’s Acquittal and his Criminal Trial

Reference was made during the hearing to the fact that AY had been acquitted at his criminal trial, but it certainly does not follow from the acquittal that the requirements of section 3 of TPIMA, and in particular Condition A, cannot be satisfied. The tasks undertaken by a jury and that undertaken by the Secretary of State in considering whether to make a TPIM are quite different. The jury is concerned with whether the prosecution have proved the constituent elements of a criminal offence to the requisite high standard. In the case of a TPIM, Condition A will have been satisfied if the Secretary of State reasonably believes that the individual concerned is or has been involved in terrorism-related activity, which is a very different test. So a TPIM could in many appropriate cases be imposed on a person who had been acquitted of terrorism-related activities.

Owen J had reached the same conclusion for reasons set out in paragraphs 17 to 21 of the 2010 judgment in relation to the Control Order on AY but his analysis and conclusions apply with equal force to the present TPIM proceedings.

AY also complains that he is being forced to answer the same evidence as he faced at the criminal trial, but that is incorrect, as during the second trial the prosecution was able to adduce further evidence in the form of e-mails, which together with the evidence of the defendants at the retrial showed that AY had lied at his first trial. Indeed, Sarwar and Ali Khan accepted that AY had been sent to them as an explosives expert and who had come to the UK to assist them in what they sought unsuccessfully to persuade the jury was an effort to scare the public with a bomb attempt. In any event, AY has not responded to this evidence or indeed given evidence on these matters either in the Control Order proceedings or in the present proceedings.

The Weight to be given to the Conclusions in the 2010 Judgment

This issue relates to the weight to be given by me to the findings of Owen J, who in 2010 conducted a hearing under section 3(10) of the PTA and which was a review of a Control Order imposed on AY. In the 2010 judgment, he concluded that:-

“55.

In the light of the material contained in the open Security Service Submissions, the principal features of which are summarised above, I am satisfied that there are reasonable grounds for suspecting that AY was involved in terrorism-related activity. There has been no challenge either to the facts set out in the Submissions, nor to the assessments made by the Security Service in reliance upon such factual material. The 'innocent' explanation for his association with the convicted members of the network and with AM advanced at trial, has been demonstrated to be false. He has offered no explanation of the email evidence adduced at the second trial, nor of the evidence given by his co-defendant as to his, AY's, involvement in the Plot.”

The issue has to be considered against the background that the test for upholding a Control Order (“the reasonable grounds for suspicion” test) is different from (and lower than) the test related to a TPIM, which is that “the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activities”.

The Secretary of State’s case is that I should adopt the approach in the Control Order cases, which was explained in the Secretary of State v AF (No.2) [2008] 1 WLR 2528 by Sir Anthony Clarke MR, when he stated that: -

“37... I would not cast doubt on the general proposition that in public law cases, where there has been a previous decision in proceedings between the same parties, and the same question arises in subsequent proceedings the starting point is likely to be the decision in the first proceedings. However, all will depend on the circumstances”.

In paragraph 42 of his judgment, he explained that in Control Order proceedings, the controlee often knows little and sometimes nothing about the case against him, and also he does not give evidence. In addition neither the controlee nor his counsel is present during the critical part of the closed hearing and that once the closed material has been disclosed to the special advocate, neither he nor his counsel can discuss the case with the special advocate.

For those reasons, Sir Anthony Clarke MR concluded that:-

“42… in these circumstances a judge should in my opinion be very reluctant to treat the finding of the judge conducting the hearing under an earlier order as in practice determinative, save perhaps in the kind of case to which I referred earlier where two hearings for some reason are very close together”.

In the present case, there has now been a delay of almost two years since Owen J gave the 2010 judgment and this undermines its use. I also accept the contention put forward on behalf of AY that there is a marked difference between, on the one hand, a case in which the court when dealing with a Control Order case is deciding whether an earlier Control Order should be continued but significantly where the legal test remains the same and, on the other hand, the present case where the findings in the Control Order proceedings were made two years earlier pursuant to a materially different and to a significantly lower test. In those circumstances, I have come to the conclusion that it would not be right to treat Owen J’s findings as constituting an automatic building block for this judgment.

In reaching that conclusion, I have been influenced not merely by the delay since the 2010 judgment and the different legal thresholds but also by the decision of Mitting J in AR v Secretary of State for the Home Department [2008] EWHC 3164, which was a case in which he was considering a challenge to a Control Order where SIAC had previously made findings about AR’s activities and the risk he posed to national security. Mitting J attached great importance to the different statutory tests, which needed to be applied in SIAC proceedings and in Control Order proceedings. For those reasons, he concluded that:-

“5.

…I must make my own decisions, but must check them against those made by SIAC. If there are significant differences, I am not inhibited from reaching my own, different, conclusion; but in such a case, I should ask myself, and explain, why the differences exist. In summary, I should check my own findings against those made by SIAC, rather than treat SIAC's findings as a building block for my own”.

That is the approach that I will adopt and I should explain that what is set out in this judgment is based solely on the open evidence.

Overview of the Secretary of State’s case

In order to show that the Secretary of State reasonably believes that AY “is or has been involved in terrorism-related activity”, the Secretary of State relies on the strong assessment of the Security Service that AY was a key member of the Transatlantic Airlines bomb Plot, which I will refer to by that name and also by its description as the “Overt Plot” and which was described by Henriques J at the end of the second trial as “most grave and wicked conspiracy ever proved within the jurisdiction”.

The Security Service’s work in relation to the Overt Plot has led to its assessment that AY was a key coordinator in the Plot and he had been sent to the United Kingdom by Rashid Rauf to assist Assad Sarwar with regard to the Plot, and in particular with the development of explosive devices including IEDs. Sarwar was convicted of offences in relation to that Plot for which he was sentenced to life imprisonment and was ordered to serve a minimum of 36 years by Henriques J.

The Security Service assessed that AY had carried out terrorist training between 2002 and 2006 with Rauf and other members of the Overt Plot. In addition, the assessment of the Security Service was that AY had undertaken within the group involved in the Overt Plot, the collation of suicide videos and that he was involved in the arrangements for their shipment to Pakistan. The Security Service further assessed first that AY planned to travel to the North West of England in order to brief AM in the construction of IEDs and to record a martyrdom video that would have been transferred to Al Qaeda (“AQ”) in Pakistan, and second that AY was arrested before the planned meeting could take place.

Further aspects of the Security Service’s case which they considered led them to assess that AY had been involved in terrorism-related activity was first, that AY refused to answer the allegations against him set out in the Security Service’s case and also in the 2010 judgment, second, his failure to renounce terrorism, and third his security awareness in the circumstances.

AY was acquitted at the first transatlantic trial, and although further incriminating evidence relating to AY emerged at the second transatlantic trial, it was decided not to prosecute him again.

AY’s evidence.

AY made two statements under the Control Order regime dated 3 October 2008 and 12 February 2010, in which he asserted that he was not a threat to national security and that he did not seek to participate in terrorism-related activities.

At the section 3(10) PTA hearing before Owen J leading to the 2010 judgment, AY did not give oral evidence and his advocates did not challenge the national security case. AY argued that it would be an abuse of process to impose a Control Order upon him after he had been acquitted by a jury of any criminal wrongdoing but, as I have explained, those submissions were rejected.

After the TPIM notice had been imposed on AY, he restated his challenge that it would be an abuse of process to impose an order in the light of his acquittal by the jury. He also added: -

“4a. I answered the allegations relating to my activities before 2006 fully before a jury. Furthermore it is not suggested that I have engaged in any terrorism-related activity for nearly six years. It seems however, that I am about to remain subject to coercive TPIMs. until I admit to the allegations made against me but without any of the protection that exists within conventional procedures, including a right to silence.”

In addition, AY drew the attention of the Court to the impact of the TPIM on his family, but there has been no challenge in open proceedings to the national security case. It seems that AY’s challenge in the open proceedings in respect of the TPIM notice is in essence challenging the “ongoing necessity” and the fairness of the proceedings.

A further witness statement (although unsigned and undated) was submitted on 23 May 2012 by AY in which he denied the allegation of being in contact with individuals considered to be part of “an extremist community”.

Apart from putting forward these matters, there has been no challenge to the facts contained in the Open Security Service assessments and statements, but my task is still to ascertain whether the Secretary of State “reasonably believes that [AY] is, or has been involved in terrorism related activity”. AY did not give evidence at the hearing.

The case for the Secretary of State was initially set out in First Open TPIM statement dated 2012. It was amended after the CPR 80.25(5) hearing held on 17 April 2012. A Second Open TPIM statement dated March 2012 updates the case and it sets out further material including exculpatory evidence, all of which I have taken into account in drafting this judgment.

I propose to set out the material in those statements in chronological order because otherwise, it is difficult to ascertain if Condition A has been satisfied.

AY’s activities from 2002 until he arrives in the UK on 18 July 2006

AY had a long-standing relationship with Rashid Rauf, and in 2002, they were both in Portsmouth. In February 2002, AY and Rauf visited an internet café in that town where they viewed pages relating to a US aviation company, and they ordered a GPS map receiver and various map CDs using fraudulent credit card details. AY and Rauf were both subsequently arrested, and they were both cautioned for deception offences.

At the second trial, Sarwar admitted that there was an individual who was providing help and direction in the Plot. The Security Service assess that it was Rauf who was providing help and direction to the Overt Plot from Pakistan.

AY together with Rauf fled the United Kingdom after their joint involvement in a serious crime in 2002. AY travelled to Pakistan, where he remained until 2004, when he travelled to South Africa. While there, AY obtained a South African identification card in a new alias “Atlaf Ravat”, and he was subsequently issued with a South African passport in that name.

The Security Service assess that this was a concerted effort by AY to build a false identity which he then used to travel to neighbouring Botswana in September 2005. The Security Service assess that this was an attempt to acquire stamps for his passport, so as to be able to renew his residence permit. Whilst in South Africa, AY became a close associate of Mohammed Patel, who provided AY with a laptop computer and which was later found to contain extremist material after AY’s arrest in August 2006.

On 28 September 2005, AY flew to Pakistan, using his false passport returning to South Africa in March 2006. At his trial, AY gave an account of his trip to Pakistan including an explanation that he went on a tablighi, which is a journey of religious rectification as well as an opportunity to proselytise, but the Security Service assess this account to be false and that his trip to Pakistan coincided with that of many members of the Overt Plot network, who also visited Pakistan in late 2005 and in early 2006.

These included Ahmed Ali Khan, Assad Ali Sarwar and Tanvir Hussain, who were all convicted at the terrorist trials in September 2009 of all charges including conspiracy to murder using explosives on a plane and conspiracies to murder. Sentences of life imprisonment were imposed on each of them with lengthy minimum terms imposed. AM (to whom I will refer in greater detail in paragraphs 100 to 109 below) was also one of those assessed as being one of those who also visited Pakistan in late 2005 and in early 2006.

AY returned to South Africa on 20 March 2006, which was about three months after most of the other members of the Overt Plot had left Pakistan. During his criminal trial, AY was questioned about an individual known as “Gabs”, who had travelled to South Africa in 2006. AY said that this individual had travelled to South Africa in either April or May 2006, and that he knew his first name was “Mohammed”, but that he was known by the name of “Gabs”, that he was a friend of Mohammed Patel and that he was from London.

The Security Service assesses that the individual known to AY as “Gabs” is in fact Mohammed Al Ghabra. He is a prominent UK-based Islamist extremist, who is associated with a significant number of extremist individuals. On 12 December 2006, Al Ghabra was added to the United Nations 1267 Committee List of individuals or entities, who belong to or who are associated with the Taliban and with AQ. The effect of adding a person’s name to this list is that it constitutes an instruction to the United States, to the United Kingdom, to the European Union and to other Governments to take action to freeze any relevant assets and it also includes an international travel ban.

The Security Service believe that Al Ghabra has undertaken terrorist training at the Harakat ul Mujahadin (“HuM”) training camp in Kashmir and that he has been in regular direct contact with Pakistani-based senior AQ individuals, including Faraj Al-Libi, who was AQ Director of Operations and at whose home address Al Ghabra has stayed for over a week. The assessment is that Al Ghabra intended to fight in Kashmir, but that he was only prevented from doing so by HuM as they needed individuals to return to the UK to raise funds.

AY claimed that he met Al Ghabra “at least half a dozen times” when he was in South Africa, and the Security Service assess that Al Ghabra and AY were likely to have discussed extremist matters whilst in South Africa, possibly including details of the Overt Plot.

In April 2006, AY was issued with a new South African passport to replace the one that had been issued just eight months earlier, and the Security Service assess that AY replaced his passport due to his fear that Pakistani immigration stamps would attract unwanted attention on future travels to the West.

On 18 July 2006, AY and his wife, who he had married in June 2006 returned to London Heathrow Airport using an alias and they were met there by Abdul Muneem Patel and his wife. In his trial, AY said that his reason for coming to England was because his wife wanted to be closer to her daughters in Belgium. He explained that his contact with Sarwar and Khan was to help him to obtain a false passport and to overcome his financial difficulties, but the Security Service assess that this is untrue. AY has claimed that he was unaware of the involvement of Sarwar and of Khan in any Plot, but the Security Service assess that AY was fully aware of the Overt Plot and that he travelled to the United Kingdom from South Africa primarily to assist in the Plot.

Events from 18 July 2006 until AY’s Arrest on 9 August 2006

On 19 July 2006, AY, who had arrived in the United Kingdom on the previous day, obtained a new mobile telephone number and his first attempted call was to Pakistan. At his criminal trial, AY said that that this call was to a relative regarding his sister’s wedding, which was taking place in Pakistan. The Security Service assess that this was untrue and that AY was seeking instructions with regard to the transatlantic bomb Plot from Rauf. The basis of that assessment is first the nature of AY’s historical relationship with Rauf, second the assessment that AY had undertaken extremist training with Rauf as well as third the fact that Rauf was providing guidance and tasking AY to the Overt Plot network from Pakistan.

AY, during his criminal trial, confirmed that he had been given Al Ghabra’s mobile number by Patel and that he made a telephone call to him on 21 July 2006, before meeting him later that day in the region of Wanstead Flats in East London. AY claimed that he and Patel travelled there together and that when they were on their way, Al Ghabra phoned them to say he was en route to meet them requiring them to drive a particular route so that they could cross paths on the way and then stop there for their meeting. They duly met near Wanstead Flats. The Security Service does not accept AY's account and they assess that the route stipulated by Al Ghabra, and taken by AY, was a form of security aware behaviour.

During the criminal retrial, further evidence emerged which the Security Service assessed as showing that AY was a key member of the Overt Plot. It is assessed by the Security Service that AY’s role was primarily as an explosive advisor sent to the United Kingdom by Rauf to assist Sarwar in the development of explosive devices. According to the Security Service, e-mail correspondence between Jamil and Sarwar provides the basis and support for the assessment because in an e-mail sent to Sarwar on 25 July 2006 Jamil wrote (with my underlining added):-

“ny [sic] friend that would like to see you is arif. You have met him before .His is good friends with abdil and jameel so you don’t need to worry bout [sic] that he can help them. he knows about the dates and he knows his aftershaves very well as he had a cosmetics shop before. but because his shop was bankrupt he is a bit out of touch about the new desighber [sic] aftersahvees[sic]. so you could update him about the ones you were shown by me it would be helpful cos[sic]h[sic] needs to show Jameel afterwards”.

In his second criminal trial, Sarwar admitted that the terms “aftershave” and “cosmetics” were codes for explosives or ingredients for them. In addition, Sarwar admitted that “Arif” was an individual with whom he was being put in contact by Jamil so that he, that is Arif, could assist Sarwar in the overt Plot in particular with explosives. Jamil has been assessed by the Security Service to be Rauf.

The Security Service consider that it is apparent that AY is Arif, because on 29 July 2009 AY and Sarwar visited an internet café and Sarwar sent an e-mail to Jamil where he stated “i am with arif”. This would be an apparent reference to the individual mentioned by Jamil in the e-mail referred to in the previous paragraph. At that time when this particular e-mail was being sent, Sarwar and AY were not with anyone else, and it therefore follows that AY is assessed by the Security Service as being identical with “Arif”. During questioning, Sarwar stated that the e-mail seemed to confirm that AY “knew quite a bit” about explosives.

Another matter referred to in that e-mail is the “shop” being “bankrupt”, which Sarwar stated that it might possibly have meant that AY “may have [had] problems in Kashmir”, but he did not know for sure as the information was in Jamil’s knowledge. The Security Service assesses first that these comments indicate that it was likely that Rauf and AY undertook training together in Kashmir, second that AY achieved his knowledge of explosives while there, and third that AY was likely to have been with Rauf when he undertook this training because Rauf knew that AY knew “his aftershaves very well” and that “as he had a cosmetics shop before” that was “bankrupt”.

During the retrial, Sarwar stated that he understood that he intended AY’s role to be primarily to assist in the testing of explosives, due to his expertise. Nevertheless in spite of this, Sarwar maintained that AY was not involved in the Overt Plot, and that he had refused to get involved, which is an assertion which the Security Service strongly disputes.

At his criminal trial, AY claimed that before his arrival in the United Kingdom in 2006, he had never met Sarwar and that all his contact with Sarwar was due to Sarwar attempting to help him obtain a false British passport, as well as some attempts by Sarwar to help AY with his money troubles. The Security Service point out that not only was Sarwar found guilty of conspiring to murder, but that at the time when he was meeting with AY, he was also participating in the conspiracy and more particularly in the process of sourcing and constructing IEDs with the aim of conducting a major terrorist attack.

The Security Service assess as implausible AY's claim that at this time, Sarwar as well as Ahmed Ali Khan (who, as I have explained was also found guilty of all charges including conspiracy to murder using explosives on an aeroplane) decided to help a man they did not know with a task of finding a false passport. They assess that AY’s relationship with Sarwar was in relation to AY’s involvement with the Overt Plot.

The Security Service strongly assess that two particular e-mails strongly indicate that AY and Sarwar had met before the meeting on 29 July 2006, and these e-mails are:-

At his retrial, Sarwar was questioned about those e-mails and he repeated that he had not met AY before the meeting on 29 July 2006 and that Jamil (who the Security Service assess to be Rauf) had written that Sarwar had met AY before as he had engaged with AY and Jamil on a “Yahoo!” messenger conversation once previously. Sarwar explained that he made the comment that he “did not thought it would be him”, as being simply a reference to the fact that Rauf’s friend AY would be the individual with whom he had previously communicated with online. He also explained that the use of the term “top dude” to describe AY was not indicative of Sarwar’s feelings to him, but instead it was simply an expression designed to fit in with the tone of the e-mail to try to avoid the interest of the authorities.

It is the assessment of the Security Service that Sarwar’s explanation for both the wording and the use of the e-mails is false, as it considers that the wording used in both e-mails is strongly indicative of the two having met face-to-face as opposed to a single online conversation. It is also assessed that Sarwar and AY claimed that they had not met before in order to conceal their terrorist connections.

On 31 July 2006, an eavesdropping device was deployed at 386 Forrest Road, Walthamstow, London E17, which was an address used by members of the Overt cell to construct parts of the IEDs. The device revealed that Ali Khan was then discussing with an individual called Tanvir Hussein what the Security Service assessed to be the number of operatives involved in the transatlantic airline Plot. The Security Service assesses the conversation as a possible reference to other individuals in the UK working towards planned attacks.

During that conversation, the eavesdropping showed that there were discussions between Hussein and Khan about the Plot and that they were practising the construction of IEDs. Both can be heard referring to batteries, bleach, bulbs, Oasis and Lucozade bottles and tape, which are all items, which are assessed as components of the eventual IEDs. It is relevant to those conversations, referred to in this and in the last paragraph, to repeat that Tanvir Hussein was found guilty of conspiracy to murder and conspiracy to cause explosions.

It is appropriate to mention at this stage that AY had been originally booked to return to South Africa on 1 August 2006, but that he later delayed his return. The Security Service assess that this change came about because of AY’s increased involvement in the Overt Plot. It is strongly assessed by the Security Service that AY stayed to facilitate various stages of the attack planning, including coordinating and equipping others in the UK, as well as working towards planned attacks and using his close contact, Al Ghabra, to facilitate the transfer of martyrdom videos to Pakistan.

On 3 August 2006, according to intelligence obtained from eavesdropping, Hussein and Ali Khan were involved in what the Security Service assesses was drilling holes in the bottom of empty drink bottles and then replacing the contents with a home-made liquid explosive so that when combined with a battery, they could have been carried through aircraft security screening and then if they were deployed, they would have caused a significant loss of life.

On 3 August 2006, surveillance recorded an individual assessed to be AY meeting Sarwar and later entering 7 Priory Road Barking, which was AY’s home address at 1.22 pm, but previously Sarwar had been seen buying bottles of “Oasis” and “Fanta” from Tesco and a bottle of lemon “Lucozade Sports” drink from another shop. Earlier that day, Sarwar entered 7 Priory Road carrying two plastic carrier bags, one of which contained Tupperware-type containers. Both AY and Sarwar stayed at this house for at least two hours.

AY was questioned about this at his criminal trial, and he claimed that Sarwar’s bag contained curry that Sarwar had bought for them both to eat and also some bottled drinks the type of which he could not remember. AY contends that whilst in the house, he and Sarwar ate the curry and also discussed AY’s attempts to source a false British identity, as well as his financial problems. The assessment of the Security Service was that this was not true, and that the truth was that the drinks bottles and Tupperware-type containers were to be used by Sarwar to demonstrate the construction of IEDs to AY. The Security Service assess that the reason why Sarwar demonstrated the construction of IEDs to AY, rather than vice versa, as might have been expected, as AY was the explosives expert, was because AY was unfamiliar with the particular design for the IEDs to be used in the Overt Plot.

Sarwar demonstrated the construction of IEDs to AY on 3 August 2006, and this required an explanation as to why AY’ s expertise was needed, bearing in mind that Sarwar had more up-to-date knowledge and specific knowledge of the methodology used in relation to this particular IED. This point fails to appreciate, as Sarwar explained at his trial, that AY was the person described as “Arif” and who was an explosives expert and who had been sent to the United Kingdom by Rauf with the role of primarily assisting in the testing of explosives. So I do not consider the fact that AY needed an explanation in any way undermines the assessment of the Security Service, especially in the light of the other evidence, including the e-mails set out in paragraph 73 above.

During his criminal trial, AY said that he had also met Al Ghabra between those two meetings, with this further meeting also taking place on Wanstead Flats. AY explained that he met on 4 August 2006 with Al Ghabra, who was going to give AY a USB stick so that AY could download computer repair software from the internet. AY said that he was also given by Al Ghabra a CD, which AY had asked Al Ghabra to lend him together with some Islamic material for AY to give to his wife, who had recently converted to Islam.

Following the arrest of AY on the evening of 9and 10 August 2006, the police searched his premises, and there they recovered various items including an MP3 player, a USB drive and a laptop. The CD was found to contain material, which was Islamist extremist in nature. The Security Service assess that it is implausible that Al Ghabra, an Islamist extremist, would pass on material of an extremist nature in an insecure manner.

At his criminal trial, AY claimed that he had not viewed the contents of the CD, as it would not work on his computer and that he accessed the contents of the USB stick, but that he could not understand the extremist chanting on it as it was in Arabic, which was a language that he did not understand. There was also found at AY’s address Islamic books and literature with substantial extremist content. AY claimed that they belonged to his wife, having been passed to her by a female cousin for assistance in her “Islamic education”. AY claimed that neither he nor his wife had ever looked at the material.

The Security Service assess that AY’s explanation for the material “to be highly implausible”, because if, as AY claims neither he nor his wife held extremist views, then it would be “highly unusual for two separate people to provide a newly converted female with extremist material when all that was required was educational material”. The Security Service assess that AY’s account is false because the material belonged to AY and that it was in his possession due to the Islamist extremist views held by him .

The police also found when carrying out the search on AY’s home after his arrest, a large pack of batteries identical to the type and origin from Pakistan with batteries found in the “bomb factory” at 386 Forest Road, which was a place used by members of the cell to construct parts of the IEDs. AY had not been to Pakistan for many years. Modified batteries of the same type were also found at the home of another member of the Overt network, namely Tanvir Hussein, who, as I have already explained, was found guilty of conspiracy to murder and conspiracy to cause explosions.

Suicide Videos

AY is also assessed to have undertaken within the Overt network the collation of suicide videos and arranging for their shipment to Pakistan. This relates to surveillance at 10pm on 6 August 2006, when Ali Khan, Sarwar and AY met and on that occasion, Ali Khan passed to AY a large bag, which he retrieved from the car boot. AY later met with Al Ghabra at approximately 11.30pm at Wanstead Flats and Al Ghabra was later seen with what is assessed to be the same bag.

Before the meeting between AY and Al Ghabra, AY was seen to carry out extensive counter-surveillance and this included hiding in bushes, walking in a circuitous route and altering his pace of walk. It is therefore assessed by the Security Service that this meeting with Al Ghabra was for “operational reasons” and the bag passed from Ali Khan to AY was later seen in Al Ghabra’s possession. It is assessed by the Security Service to have contained items relating to the attack Plot including possibly the martyrdom videos of Ali Khan’s cell.

When giving evidence at his trial, AY claimed that the package that he received from Sarwar and Ali Khan contained electrical items, which Ali Khan had sold to him for £100 with a view to AY selling them for a profit. According to AY, he had been in financial difficulties and that Ali Khan was selling the goods to him cheaply to help him out after Sarwar had told Ali Khan of AY’s problems. According to AY, this was the first time that he had met Ali Khan and AY claimed that a subsequent meeting with Al Ghabra was to see whether Al Ghabra wanted to purchase any of the equipment sold to him by Ali Khan. AY said that Al Ghabra purchased some of the items and he left the meeting with them, agreeing to pay AY the sum of £80 for the items at a later date.

As was found in the criminal proceedings, on 6 August 2008 Ali Khan and Sarwar were in the process of sourcing and constructing IEDs with the aim of conducting a major terrorist attack on behalf of AQ. The assessment of the Security Service is that it is “highly implausible that both Ali Khan and Sarwar would risk this operation by meeting with a fugitive that they barely knew for the purposes of selling him cheap electrical items to assist with his money problems”.

The Security Service does not accept AY’s explanation, and it continues to assess that the package probably contained suicide videos from the Overt cell. The Security Service assesses that the martyrdom videos, made by Ali Khan and members of his cell, were to be forwarded to AQ in Pakistan for transmission after the planned attacks because:-

Associating with AM

There was evidence that during the time when AY was in Pakistan between 28 September 2005 and his return to South Africa in March 2006, AM also visited Pakistan. The Security Service assess that AY undertook terrorist training with him and others in Pakistan at that time. The assessment of the Security Service was that AM was waiting for operational tasking after he returned from Pakistan. The assessment is that the purpose of AY’s contact with AM, which is set out in the following paragraphs, was to brief AM on his role in the Plot.

During his criminal trial, AY was asked about his use of a telephone kiosk in the Barking area at 9.45pm on 7 August 2006. AY replied that he was making a call to an individual called “Izzy” and who lived “up north”. AY claimed the telephone number for Izzy was given to him by a relative in Pakistan and that he was planning to travel “up north” to see “Izzy” on 10 August 2006 as Izzy was helping him to obtain a false passport. The assessment of the Security Service was first that what AY said was not correct, second that the name “Izzy” was AM, and third that AY and AM were planning to meet in relation to the transatlantic airlines Plot.

After AY had been arrested on 9 August 2006, an examination of two of his mobile telephones revealed that specific telephone numbers had been stored under the name “Izzy”, and the strong assessment of the Security Service is that name was an abbreviation for the name “Ismail”. The Security Service had noted that AY had also encoded Sarwar’s telephone number by putting the number in incorrectly and subsequently subtracting the figure one from each of the last four digits.

In the case of one of the telephone numbers stored in AY’s mobile phone, the Security Service strongly assess that the number on it was a coded version of AM’s number. In the case of AM, the telephone number was assessed to have been encoded by subtracting each of the last four digits from the number 10 and this corroborates the assessment that AY was in contact with AM prior to his arrest.

In making this assessment, the Security Service regarded it as highly significant that AY had a telephone number assessed to be “Ismail’s” code on the phone, and it is assessed that this deliberate encoding of a number demonstrates a high level of secrecy and also a need on the part of AY at least to keep the relationship between AY and “Ismail” from the authorities.

It is also pointed out that AM provided false details to the Royal Navy when he was stopped at sea under suspicious circumstances, including stating his name was “Ismail” with an address in Preston. The strong assessment of the Security Service is that “Izzy” is a shortened version of “Ismail” and that AM was the person who AY had arranged to meet on 10 August 2006. He was arrested before he could meet AM.

The Security Service also assess that Rauf had instructed AY to provide AM with the operational tasking and that the purpose of AY’s contact with AM was to organise travel to the North-West of England in order to brief AM on his role in the Plot, to instruct him in the construction of IEDs and to record a martyrdom video that was to be forwarded to AQ in Pakistan for transmission after the planned attacks. The Security Service consider that this assessment is supported by e-mail correspondence between Sarwar and Rauf and in particular the e-mail of 24 July 2006 (to which I referred in paragraph 99 above) in which Rauf tells Sarwar to “show Arif how to make a film cos he’s not very good and he wants to make one for his sisters wedding”.

The Security Service assess that the reference to a “film” for AY’s “sisters wedding” is a code for the creation of a martyrdom video by AY for an individual who is to play a martyrdom role in the transatlantic Plot and the Security Service assess that that individual was AM.

Security Awareness in the Overt Plot

The case for the Security Service is that from the time of his arrival in the United Kingdom in July 2006 until his arrest on 9 August 2006, AY demonstrated “security aware behaviour”, which included performing what was assessed to be anti-surveillance actions, such as looking over his shoulder when leaving his property and following anti-surveillance routes when attending meetings. It is assessed by the Security Service that AY demonstrated this behaviour also when arranging meetings with individuals assessed to have been involved in the Overt Plot in an isolated area such as Wanstead Flats.

In addition, AY admitted to storing the number for Sarwar in his mobile telephone in code under the name “Nabs”. AY explained that he stored Sarwar’s number in his phone in code as a result of Sarwar’s instructions. The encoded number required subtracting one from each of the last four digits to give the true number of Sarwar. In addition, AY stated that Sarwar told him not to use a mobile phone when phoning him, but instead to call him from a telephone kiosk.

The explanation given by AY for this behaviour was that he wanted to keep his attempts to procure false British ID hidden from the authorities, especially considering the fact that he was still a fugitive and that it was this status as a fugitive which made those associated with him (such as Sarwar and Al Ghabra) wary of open contact with him. The Security Service does not accept AY’s explanation that he was an ordinary man simply trying to avoid detection by the police.

The assessment of the Security Service was that neither AY nor Sarwar wanted to store their real names on their mobile phones, so that if any members of the conspiracy were arrested by the police, they could not compromise the true identity of other members. It is also the assessment of the Security Service that the use of encoding telephone numbers and telephone kiosks was a security measure aimed at ensuring the authorities did not find out information about the co-conspirators.

I would not have regarded the security awareness of AY as being of any real importance, if (which is not the case here) there were no other evidence of terrorism-related conduct against AY. But bearing in mind the strength of the case against him in relation to the Overt Plot and the other matters to which I have referred, this aspect of security awareness does become a factor supporting the case for showing that the Secretary of State reasonably believes that AY has been involved in terrorism-related activity.

Matters arising after the imposition of the Control Order

After AY was arrested in August 2006, he was remanded in custody until the conclusion of his trial when he was acquitted in September 2008, but he was then on 8 September 2008 served with a Control Order and was housed in Tottenham in London. The Control Order has been renewed on three occasions, and the TPIM has now been imposed. AY was relocated on two different occasions. He lives with his wife and two children.

The Security Service assess that AY remains a committed extremist who would be prepared to engage in extremist activities should he be not subjected to TPIMs. This belief is based on the facts that:-

I regard each of these matters as having potency in supporting the case of the Secretary of State that she reasonably believes that AY has been involved in terrorism-related activity.

Conclusions on Condition A

In deciding if Condition A can be satisfied, it is necessary to look at the matter in the round taking account of all relevant facts. I bear in mind that there was no direct evidence of AY being involved in terrorist training or actually producing IEDs, but there were e-mails which have been the subject of assessments by the Security Service and of evidence given at the criminal trials and in particular the second trial, which throw much light on those e-mails. Many of the e-mails are written in code and the Security Service’s assessments have been assisted by the evidence at the retrial, such as the evidence of Sarwar on the meaning of the e-mail of 25 July 2006 (which is set out in paragraph 73 above) and in particular that it refers to explosives or to ingredients for them.

In addition, the close association of AY with many of those convicted of conspiracies in relation to the transatlantic Plot at the time when they were actively involved in the conspiracies is a potent factor in support of the Security Service’s assessments. It is noteworthy that many of the participants in the transatlantic airlines bomb received sentences of life imprisonment, with lengthy minimum terms imposed, and this shows the gravity of the conspiracy.

Similarly, the evidence relating to the suicide videos is important and supportive of the Security Service’s assessments that AY was involved in terrorism-related activity.

I have considered with care all the assessments made by the Security Service. I have concluded that they are fair and reasonable when all the evidence is considered. In my view, there is an overwhelming case that the Secretary of State reasonably believed that AY had been involved in terrorism-related activity in the light of his involvement in the Overt bomb Plot and in the dealings with suicide videos, as well the extremist material found at his home after his arrest.

As I have indicated, I have reached this conclusion after testing my preliminary views against those of Owen J, and in particular those set out in paragraph 55 of the 2010 judgment and which I have set out in paragraph 38 above. I have found his conclusion to be consistent with my views although the test for imposing Control Orders was lower than that for TPIMs.

If, which is not the case here, I had been in any doubt about that conclusion that the Secretary of State reasonably believed that AY had been involved in terrorism-related activity, I would have reached that conclusion for two other reasons. First, there has been considerable disclosure of the detailed case against AY with some supporting evidence. Nevertheless AY has chosen to remain silent rather than to provide an explanation in these proceedings. This point becomes more potent when it is appreciated, as I have already explained, not merely that AY refused to comment on the allegations in the Control Order proceedings, but that not withstanding inferences drawn by Owen J in the Control Order proceedings, he has still chosen to remain silent when he realised how a court would react to his failure to comment on the allegations against him.

It is quite clear that the failure to deal with allegations in these circumstances is a matter which can be taken into account against the individual concerned. In the case of BM v Secretary of State [2012] EWHC 714 (Admin) Collins J stated at paragraph 22:-

“It is important to bear in mind that the need for disclosure is not avoided because the view is taken that there can be no answer to the undisclosed material. However cogent it may be, if the subject must know it to enable him to deal properly with the allegation, it must be disclosed. If he can, he will be able to refute it: if he cannot, he and others will at least know and understand why the order was imposed upon him. But a relevant consideration is the reaction of the subject to such information as has been disclosed to him. In para 86 of AF (No 3) Lord Hope said:

“86 What will be needed in the application of this principle will, of course, vary from case to case. The judge is entitled to take the view that a person who really does have a case to answer will make every effort to provide his special advocate with the information he needs to make the challenge. He will also note that the Strasbourg court was careful not to insist on disclosure of the evidence. It is a sufficient statement of the allegations against him, not the underlying material or the sources from which it comes, that the controlled person is entitled to ask for. The judge will be in the best position to strike the balance between what is needed to achieve this and what can properly be kept closed.”

Thus a failure to deal with allegations to the extent which is possible having regard to the disclosure given can be taken into account against a subject”.

In the present case, for the reasons which I have explained, the failure of AY to deal with the accusations against him in the evidence adduced by the Secretary of State constitutes potent and important evidence to support the conclusion that there is an overwhelming case that the Secretary of State reasonably believed that AY had been involved in terrorism-related activity in the light of his involvement in the Overt bomb Plot.

Second, there is the evidence that AY has been very security conscious as I explained in paragraphs 110 to 114 above. My starting point is that I do not regard contentions that evidence that a person, whether or not subject to a Control Order or a TPIM, is very security conscious in itself automatically entitles the Secretary of State to believe for that reason that this person is or has been involved in terrorism-related activity. The position is different, if, as in the present case, there is other evidence, which would lead the Secretary of State to believe that the person concerned was or has been involved in terrorism-related activity, but even then the use of this material will depend on how strange the security-conscious behaviour is.

In an appropriate case, the fact that the individual is very security conscious can and does amount to a building block, which entitles the Secretary of State to reasonably believe that the person concerned was or has been involved in terrorism-related activity. In this case, the extent and nature of the security- conscious behaviour of AY means that it can constitute an additional reason for concluding that the Secretary of State holds that reasonable belief.

I have no doubt in concluding that on the open evidence the Secretary of State has satisfied Condition A by a substantial margin. The closed evidence provides further support for this.

The Novel Issue

As I will explain in the following paragraphs, Mr. Ryder relies on what he describes as the “novel issue” in contending that Condition C is not satisfied (see paragraph 14 of AY’s closing written skeleton argument) but I have also considered if it could assist AY in the dispute on Condition A. I will explain why I reject this submission when I consider Condition C. Indeed the wording of the TPIMA (and in particular section 3(6)(a) and Schedule 8 paragraph 4 set out respectively in paragraphs 19 and 146 of this judgment) makes it clear that the Secretary of State is entitled in deciding, if AY had been involved in new TRA, to take into account the events which occurred before the first Control Order was imposed on AY.

AY’s “Novel Issue”

Mr. Ryder submits in his skeleton arguments in relation to Condition C what he describes as “a novel issue”, which is that:-

“… the background to the passing of the TPIMA and one of the mischiefs to which it is responding showed that Parliament intended that the measures imposed on terrorist suspects should be temporary and in particular that if a person had been subjected to restricted measures for two years, then in the absence of terrorism-related activity during that period it was not necessary and proportionate to continue to impose restrictive measures on that individual.”

The thrust of AY’s case is that in assessing the issue of “necessity”, there is no meaningful distinction between a person who has been subjected to restricted measures under a TPIMA notice for two years and a person who has been the subject of an equivalent provision under a Control Order for the same period of time. Thus the argument is that if section 5 of the TPIMA indicates that restricted measures are unnecessary in the former circumstances, the same position should apply equally to the latter, because if this was not the case, it would not only be contrary to Parliament’s intention, but such a situation would infringe the first principle of rational conduct, which is that cases must be treated alike as was explained by Lord Hoffman in Matadeen v Pointu [1999] 1 AC 99, 109.

Mr Ryder states in his skeleton arguments that this submission:-

“… does not mean that it would never be permissible to impose TPIMs on a person who has been subject to a Control Order for 2 years, but is not believed to have committed any terrorism-related activity during that time. The TPIMA potentially leaves open such a possibility: pursuant to the definition of ‘new terrorism related activity’ in section 3(6) of the TPIMA. An individual who is not believed to have engaged in terrorism-related activity for some years prior to the coming into force of the TPIMA may still be regarded as having committed ‘new terrorism-related activity’ if he has never previously been subject to a TPIMA notice. This is the case, irrespective of whether he was previously subject to a Control Order.

But the possibility that this can occur does not alter Parliament’s clear indication of when such measures are necessary. The only logical reason for allowing for such a possibility would be in exceptional and unusual circumstances where time spent subject to restrictive measures under a Control Order was substantively different to the equivalent time a person would have spent subject to restrictive measures under TPIMs. Furthermore, such a difference would have to be set out clearly and be sufficient to justify a departure from Parliament’s assessment of necessity in the context of TPIMs, under section 5. It is also axiomatic that the seriousness of the allegations against the person and the danger they may pose could not, of themselves, constitute grounds for distinguishing between time spent under a Control Order and time spent under TPIMs, given that the two year maximum for TPIMs applies irrespective of the gravity of the allegations.”

The power to make Control Orders did not put any specific limit on the type of restrictions or their duration, and the only criteria for determining whether restrictions should be imposed was whether they were “necessary” .As is widely known, there has been much litigation and a great deal of public debate over the proper limits of Control Orders. Although in a number of cases under the PTA, those subject to Control Orders have contended that extending a Control Order beyond two years was disproportionate and unnecessary, the courts have nevertheless emphasised that Parliament had not imposed time limits on the length of time during which Control Orders could be imposed. There were, however, some cases in which the courts accepted that the passage of time could make the position of a Control Order no longer necessary: Secretary of State v GG and NN [2009] EWHC 142.

Mr Ryder points out that Lord Carlile, who was the Independent Reviewer of the PTA, stated in his third report in 2008 and in his fourth report in 2009 that only in a few cases would there be exceptional circumstances, which would lead to Control Orders being necessary for more than two years. He did, however, state in his final report, dated 3 February 2011, that:-

“57.

I have reviewed the cases current as of 10 December 2010. For national security reasons I can give little detail in this report. However, the following can be published and may be of assistance.

58.

Two of the controlees have been the subject of orders for more than 2 years. Substantial and continuing risk assessments have been carried out on both, which conclude that they continue to present actual or potential and significant danger to national security and public safety. I agree with the assessment that the Control Order on each has substantially reduced the present danger that exceptionally they still present despite their having been subject to a Control Order for a significant period of time.”

AY had been on a Control Order for more than 2 years as at the date of Lord Carlile’s review as the first Control Order was imposed on him in September 2008. In fact, as Lord Carlile indicated, there were only two individuals as at the date of his review that had been subject to a Control Order for more than two years and they were AY and AM. It is clear therefore that Lord Carlile shared the Secretary of State’s assessment that AY and AM represented “a present danger”, even though they had been subject to a Control Order for a significant period of time.

Lord Carlile’s concern about Control Orders being in place for more than two years was supported by the Joint Committee on Human Rights (Counter Terrorism Policy and Human Rights 24 February 2009) and in paragraphs 29-32 of its report, but it was not accepted by the Government at the time. After the change of Government in 2010, there was a review of counter terrorism measures which led to an announcement of new measures which would be brought forward and which would make clearer what restrictions can and cannot be imposed.

In particular, the Secretary of State stated in Parliament when reporting the result of the Counter-Terrorism Review that:-

“these ‘terrorism prevention and investigation measures’ will have a two-year maximum time limit, which will clearly demonstrate that these are targeted, temporary measures and not to be used simply as a means of parking difficult cases indefinitely.” (Hansard 26 January 2011 –col 307)

It is important to note that this comment was not made during the course of the debate on the Bill which became the TPIMA.

The TPIMA was given Royal Assent on 14 December 2011 and the Explanatory Notes set out the ‘background’ to the TPIMA’s enactment. They set out the contrast between the old and new regimes at [21]-[22]:-

“Control Orders remained in force for 12 months unless renewed. The 2005 Act did not specify a limit to the number of times that a Control Order could be renewed, although the statutory test for renewing the Control Order had to be met in order for it to remain in force – and whether the test was met was considered by the High Court on appeal from the individual. A conclusion of the Control Orders review was that measures imposed under the replacement system should be subject to a two-year time limit, beyond which they could not remain in force without evidence of further engagement in terrorism related activity. This section gives effect to that time limit”

Section 5 is headed ‘Two year limit for TPIM notices’ and states that:-

“(1)

A TPIM notice –

(a)

Comes into force when the notice is served on the individual or, if later, at the time specified for this purpose in the notice; and

(b)

Is in force for the period of one year.

(2)

The Secretary of State may by notice extend a TPIM notice for a period of one year beginning when the TPIM notice would otherwise expire.

(3)

A TPIM notice –

(a)

may be extended under subsection (2) only if conditions A, C and D [of section 3] are met; and

(b)

may be extended only on one occasion.

(4)

…”

An additional reason why my provisional opinion was that I could not accept Mr Ryder’s contention that he can derive assistance from the comments of the Secretary of State is that in R v Secretary of State for the Environment ex parte Spath Holme Ltd (supra), a majority of the Appellate Committee rejected a submission that Parliamentary materials were admissible to show that powers conferred under section 11 of the Housing Rent and Subsidies Act 1975 should be limited.

Lord Bingham stated at 392 C-D that:-

“Here the issue turns not on the meaning of a statutory expression but on the scope of the statutory power. In this context a minister might describe the circumstances in which the government contemplated use of a power, and might be pressed about exercise of the power in other situations which might arise. No doubt the minister would seek to give helpful answers. But it is most unlikely that he would seek to define the legal effect of the draftsman’s language, or to predict all the circumstances in which the power might be used, or to bind any successor administration. Only if a minister were, improbably, to give a categorical assurance to Parliament that a power would not be used in a given situation, such that Parliament could be taken to have legislated on that basis, does it seem to me that a Parliamentary statement on the scope of a power would be properly admissible.”

Lord Hope said at page 407E -H that:-

“Then there is the question whether it is proper to examine the statements made by ministers during the passage of the 1975 Act through Parliament as reported in Hansard. Here again I think that it is, at best, highly doubtful whether in this case that this exercise is legitimate. My own view is that it is not. It is important to appreciate the purpose for which Your Lordships have been invited to undertake the exercise. It is not to construe words used in the legislation which are said to be ambiguous or obscure or which, having regard to their ordinary meaning, would lead to absurdity: see Pepper v. Hart [1993] AC 593 640C per Lord Browne-Wilkinson. Its purpose is to identify the reasons of policy for which the discretionary power to make orders restricting or preventing increases in rents was sought to be obtained from Parliament by the Executive. It is not the language used by the draftsman that is in issue here, but what was in the mind of the minister.

In my opinion there are sound reasons of principle for rejecting the argument that statement made by ministers in Parliament may be used to identify the policy and objects of an enactment for the purpose of identifying the scope of a discretionary power which Parliament has conferred on the Executive. As Lord Reid made clear in Padfield v. Minister of Agriculture Fisheries & Food [1968] AC 997 1030 B – C, the policy and objects of the Act must be determined by construing the Act. The underlying rule is that it is the intention of Parliament that defines the policy and objects of the Act, not the purpose or intention of the Executive. The law-making function belongsto Parliament, not the Executive.”

Is Condition C satisfied?

The issue of necessity has to be regarded again in the light of all the evidence, and I readily accept that many of AY’s terrorist contacts are either in custody (such as Sarwar) or are dead or presumed dead, such as Rauf. That factor has to be set off against other facts relevant to the need to impose a TPIM on AY.

First, I have already explained the exceedingly serious nature of the Overt Plot and the very serious terrorist-related activities of the participants in it. I have concluded that AY was deeply involved in it. Indeed I was struck by the level of responsibility of AY and his association with Rauf during his short visit to the United Kingdom, and this shows his seniority in the Overt network.

Second, AY’s determination to be involved in this Plot is shown by the fact that he returned to the United Kingdom to assist in this Plot, even though he knew that he was wanted for a serious crime, which was after all the reason why he had previously fled from this country. This shows the importance attached by him to being involved in terrorist-related activities.

Third, there is that failure of AY to provide any evidence of change of heart on his part, and this failure leads to an inference being drawn that given the opportunity, he would return to being involved in terrorist-related activities. Indeed both this court and SIAC regarded this as an issue which can properly be taken into account in a Control Order case. In AM v Secretary of State for the Home Department [2011] EWHC 2486 (Admin) I explained at paragraph 27:-

“Above all, he himself could provide evidence of a change of heart on his part and in particular that he has recanted from his former views and that he has renounced his previous activity (see as an example PP v Secretary of State for the Home Department (SC/54/2006 [28]))...”

For the reasons which I have sought to set out, the conditions in section 3 of the TPIMA are satisfied. As already indicated I will consider the reporting and exclusion zone measures at a later date. The other measures imposed under the TPIM notice I find to be necessary for purposes connected with preventing or restricting AY’s involvement in terrorism-related activity and are upheld. For the same reasons as I have set out to justify upholding the TPIM notice (subject to consideration of the reporting and exclusion zone measures), I dismiss the appeal against the renewal of the control order.