EB v The Secretary of State for the Home Department

EB is subject to a TPIM notice imposed under the Terrorism Prevention and Investigation Measures Act 2011 (“the 2011 Act”). Under section 9 of the 2011 Act, there must be a review of the Secretary of State’s imposition of the notice. As well, EB has appealed under section 16 of the 2011 Act against the Secretary of State’s refusal to vary measures set out in that notice. The issues before me concern (1) EB’s application that his section 16 appeal should be heard now, rather than coupled with his section 9 review to be heard later this year; (2) EB’s invitation pursuant to section 16 to direct the Secretary of State to grant the variations sought (the parties making short submissions for and against variation); and (3) EB’s application for the disclosure of material for the hearing, the section 9 review; and (4) directions for that hearing.

On 13 October 2013, EB was arrested for terrorism-related offences. On 7 October 2014 he pleaded guilty to an offence under section 58 of the Terrorism Act 2000. His accomplice, EF, pleaded not guilty and was tried at the Central Criminal Court before Nicol J and a jury. The jury failed to agree on one of the charges and EF was retried and acquitted of it. Both EB and EF were then sentenced, EB being sentenced to three years’ imprisonment, less six days.

EB was released from prison on 21 April 2015 and the Secretary of State served a TPIM notice on him that same day. (Ouseley J had already granted permission for the Secretary of State to impose a contingency TPIM on EB on 3 November 2014.) Under the TPIM notice, EB had to relocate immediately from London. Under the TPIM there are also restrictions on EB’s association with other persons and limitations on his financial dealings.

Section 9 of the 2011 Act provides for a review hearing in which the court, applying the principles applicable on an application for judicial review, may quash, continue or vary the TPIM notice. Preparatory measures for the conduct of the section 9 review in EB’s case have been under discussion between the parties and before the court on a number of occasions (PTA/2/2015). Ouseley J made a directions order in relation to it on 9 May 2015, at which point a five day substantive hearing was anticipated taking place in April 2016. On 16 December 2015, Nicol J ordered that EF’s section 9 review (PTA/4/2015) be consolidated with EB’s section 9 review. There have also been a number of consent orders in relation to EB’s section 9 review.

Under section 12(2) of the 2011 Act, the individual to whom a TPIM notice relates may make an application to the Secretary of State for the variation of measures specified in it. Section 16(3) of the Act provides:

“(3)

If the individual to whom a TPIM notice relates makes an application to the Secretary of State for the variation of measures specified in the TPIM notice (see section 12(2)) –

(a)

the individual may appeal to the court against any decision by the Secretary of State on the application; and

(b)

the function of the court on such an appeal is to review the Secretary of State’s decisions that the measures to which the application relates were necessary, and continue to be necessary, for purposes connected with preventing or restricting involvement by the individual in terrorism-related activity.”

EB’s section 16 appeal was lodged as PTA/10/2015 on 9 December 2015. It arose after EB’s solicitor had written to the Secretary of State on 22 October 2015 to vary aspects of EB’s TPIM notice. It sought his relocation closer to London as well as changes to the association and financial measures, to the restrictions on his movements, and to his reporting requirements. On 13 November 2015, the Secretary of State refused the request. Consequently, EB lodged his appeal, albeit on the wrong form. The appeal challenges the Secretary of State’s refusal to relocate EB back to London; to vary part of the association measures imposed on him; and to change the limits set under the financial service measure on the cash he can have. In the course of the hearing the Secretary of State explained that it was reconsidering the financial measure in the light of new information as to EB’s inability to obtain a debit card.

The question whether EB’s section 16 appeal and his section 9 review should be heard together was considered by Collins J on the papers, and an order issued on 15 January 2016. Collins J said:

“I am inclined to agree with the suggestion made by [the Secretary of State] that it is not sensible to have a hearing of the application relating to the refusal to vary terms independently and in advance of the s.9 review. But it seems that a CMC [case management conference] is needed probably next week since there has been no agreement between all concerned on what directions are needed. At the hearing, consideration can be given to any action that may be needed, if EB can show any excessive hardship resulting from the terms of the TPIM.”

Before me, Mr Deakin for the Secretary of State submitted that the section 9 review and section 16 appeal should be joined so both can be properly and justly determined. The section 9 appeal would consider the appropriateness of all the measures under appeal and the imposition of the TPIM itself. EB’s section 16 appeal adds nothing to the issues to be addressed in his section 9 review. Both matters turn on the same issues and the same evidence. In fact, the section 16 appeal cannot properly be heard before the section 9 review is ready to proceed. In Mr. Deakin’s submission, EB’s case raises a number of highly complicated case management issues which explains why the hearing of the section 9 review had been delayed.

For EB, Mr. Mian rejected the proposal to join the section 9 review and section 16 appeal. He contended that EB had a statutory right to appeal the Secretary of State’s refusal to vary the measures set out in the TPIM notice. That right is not time specific. Nor is it subject to the Secretary of State’s convenience or what she had described as highly complicated case management issues. The fact is that EB has exercised his statutory right to appeal and that right is not curtailed because the same issues and same evidence are to be addressed in the section 9 review. As to the delay in the section 9 review, Mr. Mian contended that it was as a result of the Secretary of State’s wholesale failure to progress the disclosure exercise. Consequently, it was unconscionable that she be allowed to profit from her delay.

Neither side addressed the question before me as a matter of principle. To my mind the court, when faced with this type of issue, must bear in mind three factors. First, what the law labels as a right can be rendered illusory by practical considerations. If a right cannot be claimed or insisted upon it is not simply an imperfect right but one no longer worthy of that description. Secondly, the court’s vigilance in reviewing any interference with a right is calibrated to its nature and the degree of interference. A direct interference with a right of personal liberty will be subject to more intense scrutiny than a somewhat indirect interference with a procedural right. Thirdly, rights may be qualified or the court may need to balance different rights or set them off against each other. The task is a familiar one in human rights litigation. The Overriding Objective of the Civil Procedure Rules is that courts must deal with cases justly and at proportionate cost, which involves having regard to the interests of all the parties and the public interest.

Whether EB’s section 16 appeal is heard now or along with his section 9 review is clearly an important issue for him. The legislation confers on him a right to appeal against the Secretary of State’s refusal to vary the TPIM notice. If successful in his appeal, the restrictions on his liberty will be reduced or removed. Under the control order regime the court applied intense scrutiny to the Secretary of State’s decisions on the details of an order: e.g., Secretary of State for the Home Department v. MB [2006] EWCA Civ 1140; [2007] Q.B. 415, [65]. The same standard of intense scrutiny applies with a TPIM notice: CF v. The Secretary of State for the Home Department [2013] EWHC 843 (Admin), [23].

However, it is critical that the court undertake the task with care, and when fully informed. That is underlined by the legislation, which provides that in making rules of court for TPIM proceedings, regard must be had to the need to secure that the decisions being considered are properly reviewed: Schedule 4, para.2(1). Part 80 of the Civil Procedure Rules govern the hearing of TPIM proceedings. CPR 80.2(1)-(2) apply the Overriding Objective and other relevant rules, but these must be read and given effect to in a way to ensure that information is not disclosed contrary to the public interest. CPR 80.2(3) continues that, subject to this,

“the court must satisfy itself that the material available to it enables it properly to determine proceedings.”

Finally, the court must do justice to both sides, on the one hand EB, whose liberty is severely restricted by the TPIM notice, on the other, the Secretary of State, who under the legislation acts to protect the public interest.

The basal fact is that EB’s life is severely impacted by the TPIM notice. As to the section 9 review, without having been taken through the procedural history in detail it is difficult for me to judge whose fault, if any, there is for the delay in hearing it. It seems that EB’s section 9 review being heard back to back with EF’s has not helped. What can be said is that the sooner the section 9 review is held the better, although both sides accept that it cannot be heard for several months. The reality is that there is a mass of material to be considered at the section 9 review, to which I am not privy.

As the section 16 appeal, there is a significant overlap (to put it no higher) with the issues to be considered in the section 9 review. Thus I am not convinced that the appeal can properly be heard straight away. EB seems to accept that. Mr. Mian fairly accepted that if he were correct that the issues of EB’s association and financial restrictions were relatively straightforward, reflecting the licence conditions imposed following his release from prison, the relocation issue was, as he put it, complicated. Further, EB’s grounds of appeal accept that he has not had the opportunity of meaningful dialogue with the Secretary of State or to make representations through special advocates.

Doing the best I can, I have reached the conclusion that in the circumstances of this case if EB’s section 16 appeal is to be decided fairly, justly and properly, it must be heard along with his section 9 review. Not to do so creates the risk of the court, not fully sighted, doing an injustice to EB by taking too precautionary an approach in his appeal. Alternatively, there is the risk of doing an injustice to the Secretary of State’s case, not having scrutinised the closed material which might justify her refusal to vary the measures in the TPIM notice. Notwithstanding joinder with the section 9 review, in my view EB’s right of appeal still has a reality, even if the consequent delay means that it is less perfect than it might otherwise be.

On 3 November 2015, EB requested disclosure of a number of items in relation to the section 9 review: transcripts of both the 2014 and 2015 criminal trials of EF and Nicol J’s sentencing remarks; the audio probes and related transcripts; three images found on a laptop; and reports on EB by a de-radicalisation consultant.

On 5 January 2016, the Secretary of State wrote that she intended to serve, in a few days, the transcripts of EF’s open evidence in the 2015 trial and would also serve all the transcripts of his evidence during that trial on EB’s special advocates. As to the audio recordings, the Secretary of State was unable to provide them. She had provided the specific audio probe transcripts on which she relied and was prepared to provide the remaining transcripts contained in the jury bundle used for the 2015 trial. Any further relevant material would be served following completion of the exculpatory review. The exculpatory review could not commence until EB’s response to the First National Security Statement was received. The Secretary of State added that she understood from the CPS that the transcripts in the jury bundle were the most up-to-date versions, but would be grateful for further clarification in relation to the concerns regarding their accuracy. She did not have the laptop images and the CPS and Metropolitan Police Service had confirmed that they do not hold them either. A police witness statement, which was prepared for the criminal proceedings and which explained the context of the images, would be made available.

At the hearing, Mr. Deakin reiterated the Secretary of State’s views in the letter of 5 January 2016, although he accepted that the Secretary of State might have to verify the accuracy of the probe transcripts. In my view the Secretary of State is obliged to do this. Mr. Deakin stated that the Secretary of State had now decided that it would not disclose in open proceedings the reports of the de-radicalisation consultant.

For EB, Ms Tafadar submitted that there was no reason that EB should not have all the transcripts of EF’s trial: stage 1, open, stage 2, open to lawyers and press; and stage 3, open to lawyers only. If EB had not pleaded guilty he would have been at EF’s trial. In any event, he had in-depth knowledge of EF, those he worked for and the methods used. Further, leading up to the 2014 trial, EB and EF shared a cell at HMP Belmarsh and they were on the same prison wing during the 2015 retrial. Ms Tafadar reiterated her concern about the accuracy of the probe transcripts, asserted that the laptop images were crucial when they were said to go to EB’s mindset, and invoked what she said was Collins J’s view that the reports of the de-radicalisation expert were disclosable.

The procedure for disclosure in the context of TPIM proceedings differ from what ordinarily applies. Pursuant to paragraphs 3 and 4 of Schedule 4 of the 2011 Act, CPR 80.22 expressly excludes the general rules about disclosure in CPR Part 31. Under CPR 80.23 the Secretary of State has a continuing duty to make a reasonable search for relevant material and to file and serve it in accordance with Part 80. Part 80.24(2) then provides as follows:

“Closed material

(1)

The Secretary of State –

(a)

must apply to the court for permission to withhold closed material from a relevant party or the relevant party’s legal representative in accordance with this rule…

(2)

The Secretary of State must file with the court and, at such time as the court directs, serve on the special advocate –

(a)

the closed material;

(b)

a statement of the Secretary of State’s reasons for withholding that material from the relevant party; and

(c)

if the Secretary of State considers it possible to provide a summary of that material without disclosing information contrary to the public interest, a summary of that material in a form which can be served on the relevant party... ”

CPR 80.25 governs how the court must handle the Secretary of State’s application for permission to withhold closed material. Essentially with the assistance of the Secretary of State and the special advocates it must consider whether disclosure of the material would be contrary to the public interest. CPR 80.25 (5) states expressly that any hearing to consider the issue should take place in the absence of the relevant party and the relevant party’s legal representatives.

In this case, the Secretary of State has refused to disclose in open proceedings all the transcripts from EF’s trial, the oral probes and transcripts, and the reports of the de-radicalisation consultant. The procedure laid down in CPR Part 80 is for the Secretary of State to file this material with the court and serve it on the special advocates. In light of the Secretary of State’s reasons and the special advocates’ submissions, the court will then decide in closed proceedings whether it should be disclosed.

At the very close of the hearing, Ms Tafadar applied for an order for the disclosure of a report from EB’s probation officer about EB’s progress. The National Offender Management Service had written to EB’s legal representative that it will only provide a report if there was a formal request in writing via the court. Mr Deakin did not have instructions on the matter. Once he has, I can deal with the matter on the papers.

The parties have now agreed a detailed and somewhat complex set of directions leading up to a hearing in June this year, for which I am grateful.