Secretary of State for the Home Department v BM

On 6 April 2011 BM was served with a Control Order which was made under the Prevention of Terrorism Act 2005 (the 2005 Act). A hearing pursuant to s.3(10) of the 2005 Act was fixed for 20 February 2012. In the meantime, the 2005 Act was repealed by the Terrorism Prevention and Investigation Measures Act 2011 (the 2011 Act). This Act abolished control orders but substituted for them a power to impose Terrorism Prevention and Investigation Measures (TPIM). Schedule 8 to the 2011 Act provides by Paragraph 1 that a control order which is in force immediately before commencement (namely 14 December 2011) shall remain in force for 42 days. A TPIM was imposed on BM on 13 January 2012.

There are accordingly two applications before me. The first relates to the control order and the second to the TPIM. Paragraph 3(2) of Schedule 8 to the 2011 Act provides that proceedings in relation to the control order “may not have a purpose other than determining whether” the order or any of the obligations contained in it should be quashed. The procedural requirements in relation to court proceedings following the imposition of a TPIM are in all material aspects similar to those which applied in relation to a control order. There is a new CPR 80 which deals with those procedural requirements. It includes in 80.25 provisions which were in relation to control orders found in CPR 79.29 dealing with the need for a hearing where the applicant wished to rely on closed material in which the special advocate would argue that further disclosure (whether in detail or by gisting) was needed in order to enable the individual upon whom the TPIM was imposed (I shall refer to such an individual as ‘the subject’ in this judgment) to have a fair hearing which complied with Article 6 of the ECHR. In addition, it could be argued that disclosure of particular evidence could occur because there would be no danger to national security if it was. A hearing under CPR 79.29 was held before Silber J in November 2011. This resulted in some further disclosure. A further Rule 79.29 hearing (which would have been transposed into a joint Rule 79.29 and 80.25 hearing) was, if required, fixed for 12 February 2012, but was not pursued.

The need to quash the pre-existing control order would obviously exist if any breaches had occurred and prosecution had been or might be instituted. That is not the case here. While if I were to accept the respondent’s case it would follow that the control order would be likely to be quashed, the important issue for the respondent is to have the existing TPIM quashed. The court’s powers in relation to the TPIM are set out in s.9(5) of the 2011 Act as follows:-

“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 in the TPIM notice;

(c)

power to quash directions to the Secretary of State for or in relation to;-

(a)

the revocation of the TPIM notice; or

(b)

the variation of measures specified in the TPIM notice. ”

So far as I am aware, this is the first review hearing that has been carried out under s.9 of the 2011 Act. The hearing before Silber J has sensibly been treated as compliance with CPR 80.25. One relevant distinction between the powers to impose control orders and the powers to impose TPIMs lies in the different standard required to be met. Control orders could be imposed if the Secretary of State had reasonable grounds for suspecting involvement in terrorism related activity (TRA). For TPIMs the Secretary of State must reasonably believe that the individual has been involved in TRA. Reasonable belief is a higher standard than having reasonable grounds for suspicion. However, that difference does not in my view affect the basis for disclosure to provide fairness and compliance with Article 6. Silber J had regard to the need for compliance with Article 6 and decided that the disclosure which, following the hearing before him, was required would be sufficient for the respondent to be able to give instructions to the special advocate to enable a proper case to be put forward on his behalf. But I had, following decisions of the higher courts which although decided in relation to control orders are equally binding in relation to TPIMs, to consider for myself as the hearing progressed whether further disclosure of any sort was needed to enable the respondent to have a fair hearing. Silber J’s decisions are not binding on me but, as was accepted by Mr Otty, Q.C., I am entitled to attach weight to them.

TRA has a very wide meaning. It is defined in Section 4 of the 2011 Act as follows:-

“(1)

For the purposes of this Act, involvement in TRA 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 assistances to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a) to (c);

and for the purposes of this Act is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism in general.

(2)

For the purposes of this Act, it is immaterial whether an individual’s involvement in TRA occurs before or after the coming into force of this Act.”

‘Terrorism’ has the same meaning as in sections 1(1) to (4) of the Terrorism Act 2000 (s.30(1) of the 2011 Act). The provisions of section 4(1) of the 2011 Act are identical to those of s.1(9) of the 2005 Act, which defines terrorism in the same way. It is to be noted that terrorism is not limited to activity which takes place in or directly affects the United Kingdom. Activity which is aimed at the lawful governments of and takes place in overseas countries is within the definition. Furthermore, once an individual has involved himself in activities, whether in the United Kingdom or abroad, which establish that he is a terrorist, he remains a terrorist within the meaning of the Terrorism Act 2000 whether or not he has renounced his past activities.

Before dealing with the legal arguments which have been ventilated before me, I should give further details of the history of BM. An anonymity order has been made to protect him and his family. That order was continued and remains in force since I am satisfied that it is needed and neither party submitted that it was not. Thus I will not name some individuals, in particular the respondent’s brothers whose activities play an important part in the circumstances of this case.

The respondent is a British national now 39 years old. He is married and has 5 children. He is separated from his wife (they are now divorced) but maintains a good relationship with her. Before being relocated to Bristol in March 2010, he had lived in premises in East London which were divided into separate flats, one being occupied by him, another by his ex-wife and children. He has or had, since two may be dead, three brothers whom I will identify as A, B & C. He is the eldest of the four.

Evidence against the respondent which dealt with his activities before 2007 was given by one known as MJB, an American who was arrested in New York on 4 April 2004 in connection with an investigation into inter alia a terrorist cell based in Crawley known as Operation Crevice which culminated in a trial at the Central Criminal Court presided over by Sir Michael Astill in 2006 and 2007. After his arrest, MJB was interviewed at length by the FBI and eventually admitted his involvement in terrorist activity. He then made a statement in which he identified a number of persons including the respondent who had been involved in TRA with him. It was clear that he hoped by giving the names of other terrorists to gain a reduction in the sentence that would be imposed on him. Thus his statement had to be approached with caution since the more alleged terrorists he could name the more he would be thought to have co-operated so that he could expect greater leniency when a court eventually dealt with him.

On 2 August 2007, the respondent and two of his brothers (A and B) were made the subjects of freezing orders over their assets in accordance with the Terrorism (United Nations Measures) Order 2006. That was at the time believed to provide sufficient control over him and a control order was not considered necessary. Ms A.P., the witness called from the Security Services on behalf of the applicant, did not assert that resource considerations played a part in that decision. The respondent and the others subjected to the same freezing orders applied to the court to set them aside and on 28 April 2008 I quashed the orders. On 20 October 2009 the Court of Appeal reversed my decision but on 27 January 2010 the Supreme Court restored my order.

In April 2009 the respondent’s brothers A and B left the United Kingdom and travelled to Pakistan. They went there, it was asserted, to engage in TRA and the respondent was involved in assisting them to leave for that purpose. It was said by their representative in the hearing before the Supreme Court in October 2009 that A had left his family home on 4 March 2009 and B on 4 April 2009, but their current whereabouts were unknown. Their disappearance was attributed by their solicitor to the damaging effects upon them and their families of the regimes which placed an intolerable burden on their wives and created significant mental health difficulties. The same difficulties affected the respondent and, it was said, resulted in the breakdown of his and his brothers’ marriages: see paragraph 31 of Lord Hope’s speech in A v HM Treasury [2010] 4 All ER 764. The real difficulties and pressures resulting from the freezing orders can be identified from paragraph 42 of my judgment at [2008] 3 All ER at p.378.

Having regard to the reasonable grounds to suspect his continuing TRA, it was decided to impose a control order on the respondent and on 1 May 2009 an order was served on him. One of the matters relied on against him was the assertion that he attempted to abscond, planning to go to Pakistan. This led to a decision that was served on him on 8 May 2009 that he was to be relocated to Leicester. He appealed against this and on 10 July 2009 Mitting J allowed his appeal and he was returned to London. However, in January 2010 he was served with a decision that he should be relocated to Bristol where he was sent on 12 March 2010 and where he remained until the control order expired. He is now required to reside in a property in East London which is rented on behalf of the Home Office.

It was not until 26 January 2010 that a review of his control order was heard before Saunders J. He upheld the order on 16 February 2010. The respondent appealed against this decision and on 5 April 2011, following an unacceptable and unexplained delay, the Court of Appeal allowed his appeal and quashed the order. The court declined to remit the matter for reconsideration having particular regard to the length of time which had elapsed since the order was made.

On 7 April 2011 the control order under review in these proceedings was served on the respondent. It will be necessary to consider the judgment of the Court of Appeal having regard to submissions made by Mr Otty, Q.C., based on it, but the court made the point that it was in any event unnecessary to remit the order since even if it were to be quashed it would be open to the applicant, if persuaded that the grounds for making it were established, to impose a fresh order. That is what was done.

Saunders J was led into error by an apparent agreement of counsel then appearing that he should only consider whether the grounds for making the order existed at the time of the hearing before him. Section 3(10)(a) of the 2005 Act required the court to determine whether the applicant’s decision that the relevant requirements for the making of the order were satisfied was flawed. This looks to the time the order was made and, if the court decided that either of the relevant requirements was not satisfied, it should quash the order. It would then be regarded as void ab initio. But the court had power to direct the Secretary of State to revoke the order and it would either quash or exercise that power if it decided that, while the order was properly made, it was no longer appropriate for it to remain in existence having regard to any developments since it was made. Section 9(1) of the 2011 Act makes the position clear. It provides:-

“On a review hearing … 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.”

Section 9(5) contains the same provisions as section 3(12) of the 2005 Act, namely a power to quash or to direct revocation. On the facts of this case since the review hearing has taken place a month or so after the TPIM was imposed there is no distinction to be drawn between the situation at the time the order was made and now.

I must now consider Mr Otty’s submissions as to the approach I am required to adopt having regard to the provisions of the 2011 Act. The Act in Section 3 lays down 5 conditions which have to be met if a TPIM is to be imposed. It reads:-

“(1)

Condition A is that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity (the “relevant activity”).

(2)

Condition B is that some or all of the relevant activity is new terrorism-related activity.

(3)

Condition C is that the Secretary of State reasonably considers that it is necessary, for the 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.

(4)

Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with 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.

(5)

Condition E is that –

(a)

the court gives the Secretary of State permission under section 6, or

(b)

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);

(b)

if only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force; or

(c)

if two or more TPIM notices relating to the individual have been in force, terrorism-related activity occurring after such a notice came into force most recently.”

The definition of new TRA in s.3(6) is to be noted since, as is clear from s.3(6)(a), ‘new’ is a somewhat odd adjective to use where there has been no previous TPIM. That is the position here and so the applicant in considering whether Condition B is satisfied can take account of the respondent’s activities prior to August 2007 and so of the evidence of MJB. Condition A can be satisfied by a reasonable belief in past TRA. It is in considering Condition C that a reasonable belief in recent TRA or a subject’s intention to involve himself in further TRA if a TPIM is not made is material, since an order will not be necessary unless there is a need to protect the public whether in the United Kingdom or abroad from a risk of terrorism. Condition D concerns the need for whatever measures are included in a TPIM.

Section 5 of the Act is headed ‘Two year limit for TPIM notices’. The section provides as far as material:-

“(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 are met; and

(b)

may be so extended on only one occasion.

(4)

This section is subject, in particular, to sections 13 (revocation and revival of TPIM notices) and 14 (replacement of TPIM notice that is quashed etc).”

The heading is somewhat misleading since the two year limit applies only to extension of an existing order. It does not prevent the making of a fresh order following the extension of an order. So much is clear from s.3(6)(c). S.3(6)(b) and (c) require any TRA relied on to enable a subsequent TPIM to be imposed to have occurred since the most recent previous TPIM came into force. Thus if a fresh order is to be imposed immediately after the expiry of an extended TPIM, the TRA relied on must have occurred within the previous two years. In essence, if a TPIM has achieved its purpose and the Secretary of State has no reason to believe that any TRA has occurred, there will be no power to impose a fresh TPIM whether or not, absent any new TRA, the Secretary of State has reason to believe the subject will involve himself in TRA.

Mr Otty submitted that one of the core questions that I would have to determine was whether there was sufficient material in open to show a reasonable belief in some TRA since August 2007. Furthermore, having regard to the policy behind the 2011 Act that TPIMs should only last for 2 years unless some new TRA was shown to have existed within that period, where, as here, there had been control orders in existence for at least that time, it would be impossible to assert that a TPIM was necessary unless some TRA within the previous 2 years could be shown. There is no doubt that, since there has been no previous TPIM, the definition of new TRA means that it is not necessary to show any such recent TRA. But I accept that its absence will carry weight and will mean that it is more difficult for the applicant to establish that a TPIM is necessary. However, if there is material which persuades the applicant and me that unless a TPIM is imposed BM will be likely to reengage in TRA, the order can and should be upheld. It is necessary in the circumstances to consider in some detail the more recent allegations of TRA.

There is as is usual in these cases material which cannot be disclosed to BM. Consideration of all that material together with what has been disclosed persuades me that a TPIM is indeed necessary. I have taken into account in reaching this conclusion the statements he has made to deal with such material as has been disclosed to him in support of the allegations relied on against him. Thus the crucial question is whether there has been sufficient disclosure to him to enable him to have a fair hearing because he knows enough to enable him to give meaningful instructions upon which the Special Advocates can act.

The test which must be applied in deciding whether the requirements of Article 6 and fairness are met is set out in Secretary of State for the Home Department v AF (No 3)[2010] 1 AC269. Nine members of the House of Lords sat in that case. Lord Phillips gave the leading speech. Lords Rodger and Walker agreed with him and added nothing. Lords Hope, Scott and Brown and Lady Hale agreed but each added observations of their own. Lords Carswell and Hoffman also agreed because they took the view, as did the others, that the decision of the ECHR in A v United Kingdom (2009) 49 EHRR 625 obliged them to do so. The key sentence in A v United Kingdom is to be found in Paragraph 220 of the judgment of the court where this is said:-

“Where, however, the open material consisted purely of general assertions and SIAC’s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5(4) would not be satisfied.”

It is to be noted that A v United Kingdom was concerned with detention not the imposition of control measures which fell short of detention. Further, it is, I think, worth citing the whole of Paragraph 220 of the Court’s judgment. This is said:-

“220.

The court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in that determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State ’s belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegations. ”

Thus it was recognised that there could be a fair hearing even where most of or even all the underlying evidence remained undisclosed provided that the open allegations were sufficiently specific to enable the subject to provide information with which to refute them if such information existed. As Lord Phillips said in Paragraph 59 of his speech, if the open material consisted purely of general assertions and the case against the subject was based solely or to a decisive degree on closed material the requirements of a fair trial would not be satisfied.

While it may be that the restrictions which can be imposed by TPIMs are slightly less severe than those which could be imposed by control orders, the approach to be adopted is that set out in AF(No 3). There is no material difference and the contrary has not been argued before me. But in deciding whether there has been sufficient disclosure to enable any particular allegation to be relied on against a subject, the court has to recognise that there is a need to balance the protection against terrorism, which is obviously of great importance, against the rights of the subject in question. That balance is to be applied in accordance with the principles set out in AF(No 3), but how it should be applied in a particular case will depend on the facts of that case. The nature of any allegation must be considered. The ECtHR referred to the alibi example in Paragraph 220. That was only an example, but it makes the point that the court must ask itself what details must be provided to enable sensible instructions to be given which are capable if true of showing that the allegation cannot properly be relied on.

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 Paragraph 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 this case, BM has made a number of statements in relation to the control order and the TPIM. He has chosen not to give evidence which could have been tested in cross-examination but to rely on those statements. His failure to give evidence cannot be used against him to strengthen the applicant’s case. There is no burden on him to establish that the allegations are untrue. But I am entitled to attach less weight to an untested statement, particularly if I am satisfied that explanations could but have not been given to deal with any material which has been disclosed.

Mr Otty accepted that for the purposes of these proceedings he would not seek to reopen the findings made by Saunders J relating to BM’s activities prior to August 2007. Those findings were not criticised by the Court of Appeal. Mr Otty made the point that Saunders J decided that MJB’s evidence coupled with evidence of an attempt by his aunt Shasheen in July 2007 to take some £21,000 to Pakistan showed at least to the requisite standard of reasonable grounds to suspect involvement in TRA that the allegations against BM were established. Saunders J accepted that MJB could be regarded as reliable save only in respect of his evidence that BM had trained to fight in Afghanistan. He considered that this led him to have no doubt that the contents of MJB’s statement provided reasonable grounds for suspecting that BM had been involved in TRA. MJB had given evidence and been cross-examined in the Crevice trial in this country and in trials in Canada and USA. His evidence was of considerable importance in all those trials and it had clearly been to a considerable extent accepted by the juries. I am satisfied that it supports a reasonable belief. Indeed, as I have said, I am satisfied in reliance on his evidence and material not disclosed that BM’s involvement in TRA has been established on the balance of probabilities.

I do not propose to repeat Saunders J’s reasoning. I am content to record that I agree with him. While now in the past, his conduct then is relevant in that it shows that he was actively engaged in supporting TRA mainly in Pakistan, but also in this country. He was in sympathy with those who held extremist views and had been in contact with a senior leadership associated with Al Qaida. It was clear that he had not told the truth in his statements since there were discrepancies and differing explanations given for his presence in a particular town in Pakistan and in respect of substantial sums of money found in the possession of his aunt, one Amar Ali and one Arooj in 2006 and 2007 which were said to be intended for export to Pakistan to fund terrorist activities there.

Despite all the matters relied on against BM from MJB’s statement and his attempts to have money exported to Pakistan for terrorist purposes, no control order was made in August 2007. This was because the view of those responsible was that the freezing order would suffice to control his activities. Mr Otty has relied on this since he has submitted that nothing asserted against him since then is of sufficient substance to contradict that assessment and, as Ms A.P. confirmed, resource considerations did not lead to that decision. It will be necessary to consider any TRA alleged against BM after August 2007, but I do not think that Mr Otty’s submission has substance. All that can properly be read into the decision not to impose a control order in August 2007 is that the view was then taken that the asset freezing order would suffice to control BM’s activities. Similar asset freezing orders were made against his brothers A and B. In April 2009 his brothers left this country and went to Pakistan where they engaged in TRA. It was believed that BM was involved with other named extremists in facilitating their travel to Pakistan for TRA there and so that BM was despite the freezing order continuing his TRA. In particular, once his brothers were in Pakistan there was obvious concern that he might decide to follow them or to assist them with funding to pursue their activities in Pakistan. It is accordingly not surprising that it was at this time, namely April 2009, that the decision was made that a control order was necessary. If Saunders J had considered as he should have done whether the control order was properly made in April 2009, I am sure that he would, having regard to all the material available, have concluded that it was.

The Court of Appeal in Paragraph 18 of the judgment of Thomas LJ, with which Sedley and Hooper LJJ agreed, set out the open matters relied on to support the making of the order. It was not then openly asserted that BM’s brothers had gone to Pakistan, but, having regard to the strong relations between BM and them, it was asserted that he was likely to be aware of there whereabouts and activities. With this assessment Saunders J agreed albeit in a confidential annex to his open judgment, a course which he should not have adopted. Thomas LJ in Paragraph 19 considered that on the material before him, which was only that disclosed – the court did not because it was not invited to look at any closed material nor had Saunders J said that it had in any way assisted his conclusion – there was insufficient to justify the imposition of a control order. But, as Thomas LJ said in Paragraph 19(iii):-

“… I emphasise that this is a judgment I reach solely on the basis of the material before me, as there is no other, and in the full knowledge that it is contended on Home secretary’s belief that there may be other material in the closed evidence.”

While I understand why Thomas LJ and his fellow judges decided as they did, the material in open is somewhat more positive in asserting that BM was involved in assisting his brothers to go to Pakistan for TRA purposes. This assertion is supported by undisclosed material which I of course have seen. However, I am not directly concerned with the validity of the 2009 control order. My only direct concern is with that imposed in April 2011.

Mr Otty attacked the use of a security service officer (in this case Ms A.P.) who had not necessarily had direct prior involvement with a subject but who relied on an aide memoire and assimilation of the files on the subject in giving evidence. Ms A.P. said she had used an aide memoire. A copy was provided to the Special Advocates. Mr Otty argued that this breached the best evidence rule and that in those cases the court should be provided with evidence from the Security Service Officer with lead responsibility for the case against a subject. He submitted further that now that the standard was one of reasonable belief informants upon whose evidence reliance was placed should be produced at least in closed.

I do not accept those submissions. The higher standard does not affect the position which has hitherto existed in control order reviews. The weight to be attached to any material is a matter to be considered, but there is no requirement to apply the best evidence rule. The passage relied on by Mr Otty in National Association of Health Stores v Department of Health [2008] EWCA Civ 154 at paragraphs 47 to 49 involved a situation where no question of public interest immunity arose and so Sedley LJ said that the defendant in that case should be in no better position than an ordinary litigant. These cases are very different since it is inevitable that reliance is placed on material derived from a number of different sources. Assessments have to be made on all such material and so the court can act on the record of such material and assess the validity of the assessment made. Furthermore, the court is reviewing the applicant’s decision. Albeit the review must be particularly intense, I am not substituting my view for that of the applicant, although if I do not agree with her I would be likely to decide that there was insufficient to support a reasonable belief. The applicant’s decision will have been based on what she was told in the brief submitted to her. I must consider that together with any evidence produced by or on behalf of the respondent and in my consideration I will have regard to all material put before me recognising that the absence of first hand evidence goes to weight but not to admissibility.

Reliance has been placed on Secretary of State for the Home Department v MB [2007] QB 418. That was a case in which nothing specific was given to MB to explain to him why a control order was considered necessary. It was simply stated that he was an Islamic terrorist involved in TRA and, it seems from paragraph 27 of the judgment of the court, a subsequent open statement added little to the case against him. That case depended on the closed material and so it would almost certainly have been regarded as unfair following AF (No 3). The court did not look at the closed material, but in paragraph 60 this was said:-

“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 Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in TRA …”

In paragraph 67, the court made the point that in considering whether there were reasonable grounds for suspicion, the court might have to “consider a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can be established on balance of probability and some of which are based on no more than circumstances giving rise to suspicion”.

The reality in most cases in which control orders have been made, and the same will apply to TPIMs, is that it is rare for specific facts to have to be found (beyond the obvious ones such as, for example, that something said or done by a subject was said or done by him or that he was in a particular place at a particular time). The case will usually turn on whether the information collected from whatever sources when looked at as a whole justifies a reasonable belief that the subject has been or is involved in TRA and a TPIM is necessary. But it is not necessary for underlying facts to be found to exist to any particular standard since, as I have said, all will be added together to see whether a TPIM is needed.

I would add this proviso. If specific acts of TRA have to be established, as will be the case in deciding whether a TPIM continues to be needed against any particular subject, it may be necessary for facts to be established. But often the question is whether conclusions can properly be drawn from matters, whether words or actions which are clearly established. The alibi given as an example by the ECtHR is likely to be a rarity.

Mr Otty has submitted that if facts have to be established to found a reasonable belief, they must be established at least on the balance of probabilities. He submitted that ‘belief involves a judgment that a state of affairs actually exists’, citing words of Kerr LCJ in paragraph 14 of his judgment in Northern Ireland in Re Alexander [2009] NIQB 20. But that observation does not mean that the existence of the state of affairs must be established to any particular standard. It is entirely consistent with the view that for the belief to be reasonable it must be shown that the material provided justified the belief that the state of affairs did exist whether or not subsequent investigations or testing in court shows that it did not. The reality is, as I have said, that to found a reasonable belief that a subject is or has been involved in TRA and that a TPIM is necessary does not involve the requirement to establish involvement in specific TRA to any higher standard than that which can properly give rise to such a belief. No doubt some facts which go to forming the belief will be clearly established, others may be based on an assessment of the various pieces of evidence available. But there is certainly no requirement that particular TRA needs to be established to the standard of at least more probable than not.

There are nine allegations relied on of TRA or intended TRA since April 2009. There has in most of them been a degree of specificity albeit in some that specificity is somewhat exiguous. Nonetheless this is not a case such as was MB where nothing beyond general allegations was disclosed to the controlee. But Mr Otty submits that none of the allegations provide enough detail to enable BM to be able to deal with them effectively. There must, he submits, be more than an opportunity by guessing at what might lie behind the allegations; he must have an effective opportunity to reply to them. It is here that the court has to strike the balance between protection of the public from TRA and the need for a subject to be treated fairly.

BM like any subject knows what he has or has not done. He will know that the allegations are based on some information available to the Security Service. He will not know the source or sources of any information nor the extent of it. But he can give instructions which deal with what he may have said or done to show that it was nothing to do with TRA – that information will not of course be disclosed by those representing him or the Special Advocates, but can be used for cross-examination or submissions by the Special Advocates in closed or his representatives in open. Equally, he knows the identities of those with whom he must have no contact and can explain (as he has to an extent) what his relationships (if any) with them are. In particular, he can explain that such relationships have nothing to do with terrorism. This is not a situation such as applies in a criminal case where a defendant is entitled to say nothing and play his cards close to his chest. While he does not have to explain himself, BM’s failure to do so when he could can properly be used to form the view that an adverse conclusion is justified. This approach echoes what Lord Hope said in paragraph 86 of AF(No 3) supra. It does not shift the burden to BM to show that an allegation is not to be relied on but reflects the reality that an adverse view has been formed by the applicant based on all material available to her and BM has the opportunity to explain if he can why that view is not appropriate. A failure to take steps reasonably open to him to deal with any of the allegations can therefore mean that the adverse view will be maintained.

The first allegation that he was involved in facilitating his brothers A & B travel to Pakistan for TRA I have already referred to. Mr Otty submits that what he has now been told adds nothing of substance to what the Court of Appeal regarded as being inadequate. He said in a statement made on 4 May 2009 that his brothers had not been around and he had not spoken to them since mid April but he was “100% since they would never do this. It is not like them and not in their nature”. Later, having explained how the pressures of the freezing orders had destroyed their relationships with their wives, he said that he was sure that they remained in the United Kingdom as their passports had been seized and they were ‘not the sort of people who would either have the resources or the inclination to try to obtain false documentation’.

The improbability of his not having had any contact with his brothers, particularly A with whom he had a close relationship, satisfies me that this absolute denial is not credible. An acceptance of contact but that he had no idea they were intending to go to Pakistan might have been more credible but for the knowledge that they had been involved in TRA in the past and so to suggest that it was not in their nature to involve themselves in TRA is equally incredible. I have no doubt that this allegation is established.

The second allegation is that between 9 and 18 May 2009 he planned with others including one Raja to abscond from his control order and go to Pakistan for TRA. He has said that any actions by him which may appear to support this allegation (he admits none) must be regarded in context. He had just been informed that he was to be relocated to Leicester. This, coupled with the previous difficulties created by the freezing order, had had a profound effect on his mental state. There is medical evidence which gives general support to his state of mind. He had, he said, no intention of absconding, let alone going to Pakistan.

While the details given of this allegation are sparse, the conjunction with the previous allegation is of some importance. His brothers had left their families and gone, as I am satisfied he knew, to Pakistan. His extremist views were the same as theirs and it is a pattern with extremists that families come second to the perceived need to support TRA against Western powers. There was an obvious concern that he would follow his brothers. He could have dealt with anything he had said or done which supported this allegation but indicated that it was all because of his reaction to the move to Leicester and, as events showed, he did nothing at the time to put any absconding into effect. Regard can be had to his past lack of candour as found by Saunders J. An admission that he had been involved in the past but an assertion that he had put that behind him whatever his brothers may have chosen to do would have carried somewhat more weight.

The next allegation concerns co-ordination of attempts to transfer funds to his brothers in Pakistan. This has given me the most concern whether sufficient detail has been given. Complaint is made that it has changed over time since initially it referred only to the last quarter of 2009. It must be obvious that an allegation will depend upon the information available to the Security Service and so can vary. It should I think be apparent that what has to be dealt with by a subject is an allegation in its final form. There is here a degree of specificity in that he knows the period within which and the means by which he is alleged to have co-ordinated attempts to get money in sums of £5000 or more to his brothers. He would know what if anything he had done. He would have to admit that by the last quarter of 2009 he knew that his brothers were in Pakistan, but that knowledge would not be surprising. Even if he did not wish to admit direct contact with them, their families would be likely to have been told of their whereabouts. Furthermore, he could admit such attempts based on their need for funds to enable them to live rather than for any TRA by them. His latest statement relies on his stated inability to deal with the unparticularised allegation coupled with a denial of any alleged activity and of any access to sums of money to the amounts alleged.

I recognise his difficulties and bear them in mind in assessing this allegation. But I think that there has been sufficient information given to enable him to respond to the allegation, albeit it is close to the line. I would only add that even if this particular allegation were removed, there would from the others be sufficient to establish the necessary reasonable belief.

The next allegation is of considerable importance. It alleges an attempt to abscond from his control order on 1 February 2010 with a view to going to Pakistan to engage in TRA there. He had succeeded in having the relocation to Leicester revoked in July 2009, but on 29 January 2010 he was informed that he was to be relocated to Bristol. He sought an injunction to prevent that relocation but on 1 February 2010 Saunders J refused his application. He returned to his home in East London and at about 4.30 pm was arrested because he had left his home and it was erroneously believed by the arresting officer that he was outside the area in which he had to remain. But when searched he was found to have on him two pairs of scissors and a sheet of paper with three telephone numbers on it together with the name ‘Afzal’. When his home was searched in the pocket of the jacket he had been wearing when at court earlier in the day to hear the outcome of his application for an injunction was found an unauthorised mobile phone in working order. In addition, eleven other mobile phones were found in the premises, five of which were in working order.

He was interviewed in relation to the breaches of the control order in having unauthorised mobile phones. He was then facing possible criminal charges which carried maximum sentences of five years imprisonment and was attended by his solicitor. Accordingly it may be that a refusal to answer questions was then justified and certainly should not be held against him. In due course he faced six charges, one for each of the active mobile phones. The Crown Prosecution Service decided that there was insufficient to anticipate convictions in relation to the five phones found in the premises but the charge in relation to the one found in his jacket pocket was to proceed. In due course when the control order was quashed that had to be dropped.

He has since chosen to give no explanations for those phones or the possession of the scissors. He had denied any intention to abscond and much is made by Mr Otty of the fact that when arrested he was walking not away from but in the general direction of his home. He has criticised Ms A.P. for her apparent ignorance of this and the failure to draw it to the applicant’s attention since, he argues, it does not support the allegation that he was intending to abscond. Mr Otty further submits that regard should only be had to the single phone found in his jacket. It was not hidden as alleged. I do not think more can be read into the use of the word ‘hidden’ than that it had not been disclosed and was held clandestinely. The fact that the Crown Prosecution Service believed that the other five active phones could not be proved to the criminal standard to have been in BM’s possession rather than that of his family cannot prevent them being material for the purposes of this allegation.

The conclusions drawn and properly in the absence of credible explanations drawn from the scissors, the piece of paper and the phones are all too apparent. He had a tag and two pairs of scissors are hardly usual things to have in one’s possession when out for a walk. He knows the identity of those whose numbers were on the piece of paper and has chosen not to explain why he had them with him or why he was to or had spoken with them. Mr Otty said that he had the unauthorised phones because he thought the one he was permitted to have might be bugged and he wanted to have private conversations, but the absence of any explanation of that one and the eleven others leads to the reasonable belief that the conclusion drawn is indeed correct.

BM relies again on the circumstances of his imminent relocation to Bristol and the adverse effect on him of that. Absconding on its own is not TRA, but absconding with a view to leaving the country for TRA is. But he could but has not given any explanation which might rebut the inferences which have been drawn and in my judgment properly drawn. It may be that the attempt to abscond was not preplanned in sufficient detail and the relocation to Bristol triggered the decision to try to leave on 1 February, but BM had second thoughts and so might not have gone through with it. This could explain why he was going in the general direction of his home. I only make the point that the direction of his travel is not in the circumstances in the least inconsistent with what he is alleged to have intended to do. Far from being insufficient to support the applicant’s case, the circumstances and what was found gave in my view very strong support to that case.

The next allegation is that he met with his brother C in Bristol in March 2010 and they discussed what is called operational activity in a discussion held during what is called a walk and talk. No doubt BM believed that his house was likely to have been bugged and the allegation is that if he wished to discuss matters he did not want to be overheard he would go on a walk with whomever he was discussing those matters. This would ensure that nothing was overheard. I recognise that there is little that can be said in answer to this save for a denial, but there is equally little of value that could be disclosed. However, the background of involvement with his brothers including C in TRA is of importance and the timing of this shortly after the events of 1 February 2010 is relevant. In the light of the findings against him including C’s involvement in 2007 he could have given a more detailed explanation of all that he could recall of the reason for C’s visit and the walk and talk.

Following reports of A’s death in November 2011, it is said that he glorified him and their actions. The belief is that he wants to and will if not subjected to a TPIM go to Pakistan and involve himself as they did in TRA there. He seeks the same path since he holds the same extremist views as they held and wishes to put them into action. It is accepted that he genuinely believes that they are indeed dead albeit Ms A.P. when asked said that she would neither confirm nor deny that they were. He has made a statement which is somewhat equivocal as to whether he has said things which do indeed glorify his brothers’ deaths. He was understandably upset, but says anything he said, for example, to his mother should not be regarded as more than a reaction to the deaths without really thinking clearly. He said he needed to stay here to look after their families, but he now says that he would want to leave the country with them and go perhaps to Egypt, certainly not to Pakistan. He would know if he has said anything which would support the conclusion that he was intending to go to Pakistan for TRA and could give the necessary instructions to deal with any such activities if there was any innocent explanation.

So far as access to a network of extremists is concerned, many of these have been named and some are included as those he cannot contact under the terms of the TPIM. There is ample material to justify the conclusion that he held extremist views and has in the past engaged in financing TRA and travelling to Pakistan for that purpose. That he is likely to pursue TRA if not subjected to a TPIM is in all the circumstances in my view substantiated certainly at least to the standard of reasonable belief. There has been sufficient disclosure of the specific allegations made and his ongoing intentions are supported by those allegations and by his reaction to his brothers’ deaths. Thus I am satisfied that there is reason to believe he has been, is and will continue to be involved in TRA and that a TPIM is necessary.

Mr Otty has challenged the need for the extent of the curfew which requires BM not to leave his residence between 9 pm and 7 am. Schedule 1 Paragraph 1 is headed ‘Overnight residence measure’. It provides so far as material by Paragraph 1(2):-

“The Secretary of State may, in particular, impose any of the following:-

(a)

a requirement to reside at a specified residence …

(b)

a requirement, applicable overnight between such hours as are specified, to remain at, or within, the specified residence.”

Thus the limit for any curfew is that it is imposed in what can properly be regarded as overnight hours. This is a singularly unhelpful provision and it is surprising that Parliament did not avoid any problems by indicating the hours between which a curfew could be imposed. It has not and so it is necessary to consider what “overnight” in context means.

The dictionary meaning of ‘night’ is the period between sunset and sunrise. That however cannot apply in these circumstances since the hours vary according to the time of year. It is necessary to consider the purpose of the provision and to determine what would be considered in common parlance as overnight. This sort of approach was adopted in different circumstances by the Divisional Court in R v National Insurance Commissioners ex p Secretary of State for Social Services [1974] 3 All ER 522. It seems to me that it should bear some relationship to the hours between which most people would regard it as reasonable to think that people might be at home, the evening having come to an end. I think 9pm is the earliest. So far as the end of the night is concerned, the hour when many would regard it is reasonable to begin the day is the relevant time. In my view, overnight does not reasonably stretch beyond 9 pm until 7 am.

I think in the circumstances these hours would be reasonable. Mr Otty submits that a curfew should be for as shorta period as reasonably required. There is, however, a concern having regard to his past behaviour and his present intentions that BM may try to abscond and so a curfew for as long as ‘overnight’ allows is permissible.

Accordingly I would uphold the TPIM and the validity of the control order.