Secretary of State for the Home Department v LG & Ors

The Terrorism Prevention and Investigation Measures Act 2011 (‘TPMIA 2011’) introduced Terrorist Prevention and Investigation Measures (‘TPIMs’). These are various restrictions and requirements of a kind which are listed in Schedule 1 to TPIMA 2011. The Act has a ‘sunset clause’ so that the SSHD’s TPIM powers will come to an end automatically. Originally, the date was 5 years from Royal Assent (14^th December 2011) – s.21(1), but s.21(2) authorised the SSHD to extend their life for another 5 years and this power was exercised by the Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016 SI 2016 No.1166. Section 2 of the Act authorises the Secretary of State for the Home Department (‘SSHD’) to issue a notice setting out the particular measures which the SSHD imposes on the individual in question. Before a TPIM can be imposed, five conditions must be met – see TPIMA 2011 s.3. The last condition is that the SSHD obtains the permission of the Court before issuing a TPIM notice. A low threshold is set at that stage: the Court has only to be satisfied that the application is not ‘obviously flawed’ – see TPIMA 2011 s.6(3). Cranston J. concluded that the SSHD had satisfied this initial test for the three individuals with whom I am concerned and granted her permission to issue the TPIM notices for each of them. By orders of the same day, he required each of them to be anonymised. Hence, they are referred to in these proceedings as LG, IM and JM. They must not be identified in any report of these proceedings.

Although a low threshold is set at the permission stage, the Court is required to conduct a more stringent review subsequently - see TPIMA 2011 s.9. It is the reviews under s.9 which I have been conducting in respect of LG, IM and JM.

The five conditions which must be met before a TPIM can be imposed are referred to as ‘Conditions A – E’ and they are spelt out in s.6 of TPIMA 2011 which currently says,

Conditions A, B and D use the expression ‘terrorism-related activity’ (‘TRA’). This term is defined in TPIMA 2011 s.4 as follows,

TPIMA 2011 s.30(1) defines ‘terrorism’ by reference to the Terrorism Act 2000 (‘TA 2000’) s.1(1) – (4) which says,

Section 1 of TA 2000 has a fifth subsection which says,

I have said that I have been conducting ‘review hearings’ for each of the TPIM notices. Shortly after a TPIM notice is served, there must be a directions hearing at which arrangements are to be made for a further hearing in relation to the measures imposed by the notice – see TPIMA 2011 s.8. The function of the Court at such review hearings is dealt with in TPIMA 2011 s.9 which says,

I shall return to the issue of precisely what standard I should apply in carrying out this review since this was a matter of debate between the parties. At this stage, though, I observe that s.9(1) requires me to review the decisions of the Secretary of State that the specified conditions ‘were met and continue to be met’. This use of the past and present tense means, for instance in the context of Condition C, that I must review, not only the decision of the Secretary of State that, at the time of the TPIM notice, she reasonably considered that it was necessary for purposes connected with protecting members of the public from a risk of terrorism for a TPIM to be imposed, but also her decision that she reasonably considers that a TPIM continues to be necessary for that purpose at the time of my review. Likewise for the purpose of Condition D, I must review her decision that she reasonably considered each individual measure was necessary for preventing or restricting the individual’s involvement in TRA at the time of the TPIM notice and also her decision that she reasonably considers that particular measure for that particular individual, continues to be necessary for those purposes now. It seems to me that Condition D also required the SSHD to be satisfied that the package of measures as a whole was necessary.

In this regard, Condition A is rather different. I repeat, Condition A is ‘that the Secretary of State is satisfied on the balance of probabilities that the individual is, or has been, involved in terrorism-related activity’ [my emphasis].

I take from this and s.9(1):

These three review hearings have been held together for convenience because there is a common element to the factual background of each of them. Nonetheless, the exercise which I must perform is an individual one in each case. Thus, I must, in each individual case, review the decisions of the SSHD that each of the Conditions A, C and D was met when the TPIM was imposed and that it continues to be met. That will include a review of the proportionality of the measures as regards each of the individuals.

The common thread which runs through the three cases has to do with the SSHD’s case that each of LG, IM and JM are members of, and are or were senior leaders of, an organisation called Al Muhajiroun (‘ALM’). ALM was founded in the UK by Omar Bakri Mohammed (‘OBM’) in 1996. Its aim was the establishment of an Islamic Caliphate ruled by Sharia law. OBM publicly disbanded ALM in 2004. The position of IM and JM is that ALM then ceased to exist. The SSHD’s position is that it re-emerged under the names of Al Ghurabaa / The Saved Sect.

The TA 2000 s.3 allows the SSHD to ban or proscribe terrorist organisations which are judged to promote and encourage terrorism. In 2006 the SSHD proscribed Al Ghurabaa / The Saved Sect. Terrorist organisations can change their names (as the SSHD says had already happened with ALM by 2006). The TA 2000 s.3(6) allows the SSHD to give alternative names adopted by proscribed organisations. The SSHD has used this power to give the following as alternative names for ALM: Muslims Against Crusades, Need4Khilafah, the Shariah Project and the Islamic Dawah Foundation. In the case of the last three, these were added by The Proscribed Organisations (Name Changes) Order 2014 SI 2014 No. 1612 with effect from 27^th June 2014. Unless the context requires otherwise, I shall continue to refer to all of them as ‘ALM’.

Islamic State in the Levant, Islamic State in Sham and Daesh are all alternative names for the organisation which, as is notorious, has declared its control of various parts of Syria and Iraq. The different names are unimportant and I shall refer to it as ‘ISIL’.

Al-Qaeda was proscribed in 2001. It is the SSHD’s case that ISIL began as an affiliate of Al-Qaeda and so was effectively also proscribed. On 20^th June 2014 ISIL was proscribed by the SSHD in its own name as a terrorist organisation – see Terrorism Act 2000 (Proscribed Organisations) Amendment (No.2) Order 2014 SI 2014 No. 1624.

The leader of ISIL is Abu Bakr Al-Baghdadi (‘Al-Baghdadi’). On 29^th June 2014 Al-Baghdadi declared that the areas under ISIL’s control were the Caliphate whose emergence had been long foretold by, at least some, Muslims and that he was the Caliph.

ISIL has called for attacks on the West and disbelievers more generally. Thus for instance, the ISIL spokesman, Abu Mohammed Al-Adnani released a speech on 21^st September 2014 which called on Muslims to carry out individual attacks against disbelievers, whether civilian or military, whenever possible and with whatever weapons were available. There have been hundreds of incidents in response. In 2015, for instance, some 55 attacks were attributed to core ISIL actions and 454 to affiliated branches. The attack on the Tunisian beach resort in June 2015, the bombing of the Russian airliner over Sinai in October 2015 and the attacks in Paris in November 2015 are all assessed to be ISIL attacks.

Part of the concern with ALM is that its senior leaders have influenced, encouraged or given tacit approval to a number of UK attack plans. These include the following:

On 7^th July 2014 a document was posted to an Indonesian website. This purported to pledge the allegiance of ALM to the Islamic State declared by Al-Baghdadi. The document was posted by Mohammed Fachry, who is believed to be a senior leader of ALM in Indonesia. It purported to be signed by OBM among others. It called on Muslims living in non-Muslim lands to migrate to the Caliphate and stated that it was the obligation of every Muslim to pledge their allegiance to the Islamic Caliphate. The police believed that it remained on line for 48 hours.

In [redacted] individuals, including LG, IM and JM were arrested under TA 2000 ss.11 and 12 and Terrorism Act 2006 s.1 for offences linked to ALM. They were all bailed. In September 2015 the three Respondents were told that no further action would be taken against them. They were never charged.

[redacted] It is the SSHD’s case that Anjem Choudary (‘Anjem’ (Footnote: ¹)) and Mizanur Rahman (‘Mizanur’) were, and are, senior leaders of ALM. On 5^th August 2015 Anjem and Mizanur were charged with offences under TA 2000 s.12, of inviting support for a terrorist organisation, namely ISIL. They had been among the signatories of the ALM declaration on 7^th July 2014. Anjem and Mizanur were tried and convicted. They were each sentenced to 5 ½ years’ imprisonment.

Before applying for permission to issue a TPIM, the SSHD is required by TPIMA 2011 s.10 to consult with the police as to whether there was evidence which could lead to a realistic prospect of a successful prosecution. The SSHD did so in relation to each of these Respondents and was told that there was insufficient admissible evidence to provide a realistic prospect of charging them with terrorism related offences.

The SSHD applied for permission to impose TPIM notices on the three Respondents on 10^th June 2016. Permission was granted by Cranston J. on 14^th June 2016.

In Closed, the special advocates for LG (only) submitted that important material considerations were not drawn to the attention of the SSHD before she decided to impose the TPIM in his case. They also submitted that important material was not drawn to the attention of Cranston J. at the time that he was asked to give permission for service of the notices. LG’s Special Advocates submitted that, in consequence, the SSHD’s decision should be quashed because she had failed to take into account all relevant considerations. Likewise Cranston J’s decision was ineffective because it had been based on deficient disclosure. LG’s Special Advocates relied on the decision of Mitting J. in AT v SSHD [2009] EWHC 512 (Admin) and on the Court of Appeal in CF v SSHD [2014] EWCA Civ 559.

I rejected these submissions for reasons which cannot be put into open.

The TPIM notices were served on each of the Respondents on 20^th June 2016.

The review process is triggered automatically - see TPIMA 2011 s.8. It is for the SSHD to show that the necessary conditions for each TPIM notice were, and continue to be, met. The SSHD relies on three open statements dealing with ALM generally and, for each Respondent, two open statements specific to that Respondent. There is also closed evidence. The latter has been considered by Special Advocates appointed to represent the interests of the Respondents (Ms Helen Mountfield QC and Ms Shaheen Rahman QC in the case of LG; Mr Charles Cory-Wright QC and Mr Martin Goudie QC for IM and JM) as it concerns each of them. The process required by CPR r.80.24 for consideration of the SSHD’s objections to disclosing the closed material has been completed. From time to time gists of parts of the Closed hearing have been made available in Open.

In addition to the review hearings which I have been conducting, a TPIM respondent can appeal against the refusal of the SSHD to vary a particular measure – see TPIMA 2011 s.16. LG appealed against the SSHD’s refusal to vary the Overnight Residence Measure (‘ORM’) in his TPIM. His appeal was heard by Hickinbottom J. on 10-11^th November 2016. Hickinbottom J. dismissed the appeal on 21^st December 2016 see LG v SSHD [2016] EWHC 3217 (Admin). One of the grounds on which LG had relied was that his relocation and separation from his family had caused him to be depressed and to revert to an addiction to heroin. He argued that Hickinbottom J’s public judgment should be redacted to remove references to this. His application to this effect was heard on 13^th February 2017, but refused in a further judgment given on 17^th February 2017 – see LG v SSHD [2017] EWHC 271 (Admin).

The SSHD is obliged to keep under review whether Conditions C and D are met – see TPIMA 2011 s.11. The police and the Home Office have frequent contact with each of the Respondents and their solicitors. Contact Officers within the Home Office are identified with whom the Respondents and their solicitors can liaise. In addition a TPIM Review Group (‘TRG’) meets at least every three months to review the position of each Respondent. Additional ad hoc TRG meetings can be arranged and have been held for LG.

I have been shown what are called ‘minutes’ of these meetings. There is some force to the Respondents’ criticisms of the documenting of these meetings. First, although described as ‘minutes’ they are in reality a composite of summaries prepared in advance of the meeting and a record of discussions at the meeting. Next, not all the documents referred to may have been available at the time of the meeting. Thus, the minutes of the meeting of 20^th September 2016 referred to a statement by LG of the same date and Mr Daly (the SSHD’s Home Office witness) said that the statement might not have been received until after the meeting. It was possible that it was received that same morning. It was not possible to say how widely the statement had been circulated since it was not the practice to copy all the documentation to all the attendees. That said, it is not my task to review the practices of the Home Office or the TRG. I have to, and will, conduct the review which TPIMA 2011 s.9 requires. I am satisfied that I have all the material I need for that purpose. Furthermore, Mr Daly had seen all the relevant documents and reports. His views that the TPIMs were necessary and proportionate (reflecting for these purposes the views of the SSHD) were fully informed.

So far as LG is concerned, there were further developments in June 2017. On 8^th June LG was arrested for further alleged breaches of his TPIM. On 9^th June he was remanded in custody until 30^th June. On 10^th June the SSHD revoked LG’s TPIM. Nonetheless, both LG and the SSHD have urged me to continue with the review in his case as well as the reviews of IM and JM. I was informed of these developments on 13^th June. By then the process of drafting this judgment was far advanced. I agreed that the course which the parties advocated was sensible without the need to invite further detailed submissions.

Each of the TPIM notices included the following measures, although the precise details to some extent differed:

A TPIM comes into force when it is served on the individual. It lasts for a year in the first place. Thus the present TPIMs will expire on about 19^th June 2017. The notice may be extended by the SSHD for one further year – see TPIMA 2011 s.5 and the SSHD has said that it is her intention to renew them. Two years, however, is the maximum for the life of a TPIM. Another TPIM could only be imposed if there was evidence of ‘new’ TRA since the original TPIM was issued.

Ms McGahey submitted that, by the conclusion of the hearing, there was not a great deal between the parties as to this issue. Nonetheless, it is important that I should spell out what I see as my task.

The starting point has to be TPIMA 2011 s.9(1) which says that, on the review

Mr Hickman for LG argued that the position is not so straightforward. He refers me to the Court of Appeal’s decision in SSHD v MB [2007] QB 415. In that case, Sullivan J. had made a declaration of incompatibility regarding the power in the Prevention of Terrorism Act 2005 to make a non-derogating control order. He had found that the provisions in the 2005 Act were incompatible with Article 6 of the European Convention on Human Rights (‘ECHR’). The Court of Appeal reversed his decision. It held that the system of judicial review to which a control order was subject had sufficient flexibility to provide whatever standard of review Article 6 required. There was, therefore, no incompatibility and the court could, if Article 6 required it, substitute its own decision for that of the SSHD – see [48]. In those circumstances, the Court said, it was not strictly necessary to decide what standard of review Article 6 did require - see [49], but the matter had been argued and the Court did proceed to give its views on the issue. It said that there was a distinction between a finding of fact and a decision which turned on a question of policy or expediency. Where a finding of fact was involved, Article 6 might require the evaluation to be carried out by a judicial officer.

At the time, a control order could only be made if the Secretary of State had ‘reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity’ – see Prevention of Terrorism Act 2005 s.2(1)(a). As to this, the Court said at [60],

When the TPIMA 2011 first replaced control orders with TPIMs, Condition A was that the SSHD should have ‘reasonable grounds to believe’ that the individual was or had been involved in TRA. That set a higher test for the SSHD, but it could not diminish the standard of review exercised by the Court. Mr Hickman argues that, consistently with MB¸ it was then for the Court itself to decide as an objective fact, whether there were reasonable grounds to believe that the individual was or had been involved in TRA.

The CTSA 2015 amended Condition A. It now provides, as I have quoted above, that the SSHD must be satisfied on the balance of probabilities that the person concerned is, or has been, involved in TRA. Mr Hickman submits, that this remains an issue of objective fact. Accordingly, he argues, in line with the decision of the Court of Appeal in MB, Article 6 requires me to decide whether that objective fact exists. In other words, he submits, I must decide for myself whether I agree that on the balance of probabilities each of the Respondents is or has been involved in TRA.

Ms McGahey draws my attention to the decision of Mitting J. in SSHD v EB [2016] EWHC 1970 (Admin). This was one of the first reviews of a TPIM after the amendment to Condition A by the CTSA 2015. At [9] Mitting J. said,

Mr Hickman observes, that Mitting J. did not address the dicta in MB on which he relies (although MB is cited in [11] of the same judgment). Mr Hickman also notes what Mitting J. said in [10],

Pragmatically, Ms McGahey submits that, while strictly speaking, I could disagree with the SSHD’s conclusion as to Condition A, but nonetheless find that her conclusion was one to which she was entitled to come, she does not seek to rely on such an argument here. On that basis, I shall take the same course as Mitting J. and examine for myself whether, on the balance of probabilities, each of the Respondents is, or has been, involved in terrorism-related activity.

After the hearing in this case, Collins J. gave judgment in SSHD v EC and EG [2017] EWHC 795 (Admin) which was a review under TPIMA 2011 s.9 of the TPIMs imposed on EC and EG. At [9] Collins J. commented that he was required to conduct a Wednesbury review of the SSHD’s decisions. I was aware that this judgment was imminent and gave the parties an opportunity to make brief written submissions in relation to it. Mr Hickman and Mr Southey QC (who was leading counsel for JM) noted that Collins J. had not considered the passages in MB to which I have referred above. Significantly, he had also adopted the course favoured by Mitting J. Thus he expressed his conclusions that the SSHD was not only entitled to find Condition A satisfied in relation to EC and EG, but that she was right to do so. I propose to follow the same course as both Mitting J. and Collins J. in that I will also consider for myself whether Condition A is satisfied.

That said, it was not necessary for the SSHD, and it is not necessary for me, to make more specific findings of fact as to the precise nature of any terrorism-related activity in which a Respondent is or was involved. I accept the submissions of Ms McGahey to this effect.

Conditions C and D called for a different exercise by the SSHD. They required a judgment as to whether a TPIM was necessary for purposes connected with protecting the public from a risk of terrorism (Condition C) and a judgment as to whether the individual measures were necessary for purposes connected with preventing or restricting the individual’s involvement in TRA (Condition D). These are not judgments of objective fact, but matters of judgment and assessment of the kind referred to in [56] of MB.

In his judgment on LG’s s.16 appeal, Hickinbottom J. summarised the relevant legal principles which he applied at [17]. Because of the nature of the proceedings before him [17(i)] requires adaptation and I will say more about that. However, the other principles are applicable and I gratefully adopt them. He said,

Because Hickinbottom J. was dealing with an appeal under TPIMA 2011 s.16, LG was not then able to question the national security case. Hickinbottom J. therefore had to consider the challenge to the relocation measure on the basis that the national security case should be taken at its highest. I recognise that, in this respect, I am in a different position. If I were to take a different view of the national security risk posed by a Respondent, that could, in principle, affect the assessment of the necessity test in Conditions C and D. A second difference is that Hickinbottom J. was concerned only with the particular measures which resulted in LG’s relocation. He was not, therefore, required to consider Condition C – whether a TPIM at all was necessary. The importance of that latter distinction between our two roles is somewhat reduced, however, when it is appreciated (a) that, of all the individual measures, relocation has probably the greatest impact and (b) as Hickinbottom J. recognised in [17(i)] the particular measure which was the subject of LG’s appeal had to be seen in the context of the package of other measures as well.

I would add to the principles set out by Hickinbottom J. that, in judging necessity and proportionality it is right to take account of the resources available to the SSHD and the demands on those resources – see SSHD v MB in the Court of Appeal at [63] and the decision of Ouseley J. in SSHD v AF [2007] EWHC 651 (Admin) at [139]. The SSHD’s appeal was allowed by the House of Lords in MB and AF’s appeal was dismissed but none of the speeches appear to have touched on this matter – see SSHD v MB [2008] 1 AC 440. Those decisions concerned control orders, but in SSHD v CC and CF [2013] 1 WLR 2171 Lloyd Jones LJ, sitting as a judge of the High Court, held that the same approach should be followed on a review of the necessity for a TPIM under TPIMA 2011 s.9 – see [17]. His decision was subsequently reversed by the Court of Appeal, but on other grounds – see SSHD v Mohammed (formerly CC) and CF [2014] 1 WLR 4240.

In considering proportionality the Respondents reminded me of what Lord Sumption had said in Bank Mellat v HM Treasury (No.2) [2014] 2 AC 700 when he summarised the principles at [20] and said the question depended on an exacting analysis of the factual case advanced in defence of the measure in question to determine,

Mr Hickman referred me to the Government’s Review of Counter-Terrorism and Security Powers: Review Findings and Recommendations (Cmd. 8004) which proposed the abolition of control orders, but, at the same time accepted the need for a substitute and said at [9] ‘there are very likely to be a small number of people in this country who are assessed to pose an immediate and significant terrorist threat but who we can neither prosecute nor deport’. He accepted, however, that this was not intended to be the only situation where a TPIM would be appropriate. It would, in any case, not be right to supplement the test which Parliament has adopted, albeit applied in the manner that I have already discussed.

I have noted above, the comments by the parties as to the significance of the nature and timing of involvement in TRA for the purposes of Conditions C and D. I have borne these in mind. However, since those two Conditions are concerned with the necessity (and proportionality) of either a TPIM in principle, the whole package of measures or the individual measures, they are not questions of objective fact and, as I have said they are not decisions as to which, even on the basis of the comments in the Court of Appeal in MB, I am required to come to my own conclusion. So far as they are concerned, the issue is whether the SSHD was entitled (on familiar public law principles) to come to the conclusions she did.

I have also noted above the emphasis which the Respondents placed on the different purposes of Condition C (‘protecting the public from a risk of terrorism’) and Condition D (‘preventing or restricting the individual’s involvement in terrorism-related activity’). It is right, as the Respondents observe, that TRA can include action taken for the benefit of a proscribed organisation - Terrorism Act 2000 s.1(5), while ‘terrorism’ for the purposes of the TPIMA 2011 does not include this. However, the significance of this distinction is considerably diminished by the potential overlap between actions taken for the benefit of a proscribed organisation and the other activities in s.1(1)-(4) of Terrorism Act 2000 which do amount to terrorism for the purposes of TPIMA 2011. Furthermore, to satisfy Condition C it is not necessary that the terrorism from which the TPIM is intended to protect the public is terrorism by that same individual. Thus, in principle, Condition C may be satisfied if the TPIM is necessary to protect the public from a risk of terrorism by some third party. Of course, whether it is so necessary (and proportionate) will have to be considered against the facts of the individual case.

Each of the Respondents has filed witness statements made by him in opposition to the SSHD’s case. None of the Respondents was called to give oral evidence. There was some debate during the hearing as to the consequence of this omission. In the end, though, little dispute remained. I summarise my understanding of the position as follows:

As I shall explain, JM has previous convictions for soliciting murder and fundraising for terrorism. In his opening skeleton argument Mr Southey submitted that these matters could not constitute involvement in TRA for the purposes of Condition A because that would amount to an abuse of process. Ms McGahey said that, while his previous convictions were an inevitable part of the background, they were not in themselves relied upon as part of the SSHD’s national security case. In those circumstances, it is unnecessary for me to decide whether, if it had been otherwise, there would have been an abuse of process. It is sufficient for me to set down a marker that I am not to be taken as necessarily agreeing with Mr Southey’s proposition. However, as Ms McGahey recognised, even if such a previous conviction could satisfy Condition A, a TPIM could only be validly imposed if the other Conditions were also satisfied.

These aside, none of the Respondents has relevant convictions and none has been prosecuted under the terrorism legislation. At times in their submissions, it was suggested that I should infer from this that the activities in which they had openly engaged (and in particular distributing or transmitting videos or other social media) could not be regarded as criminal, unlawful or as TRA. Were it otherwise, they submitted, they would and should have been prosecuted under the criminal law.

I do not accept this reasoning. The opportunity for a closed material procedure, the different standard of proof and the different rules as to admissibility of evidence, all mark out these TPIM proceedings as distinct from prosecution in the criminal courts. Section 10 imposes a duty on the SSHD to consult with the police before issuing a TPIM notice. However, as the House of Lords said of the equivalent requirement in the control order regime, the duty to consult does not mean that compliance with the duty is a necessary further condition before the administrative measure can be taken, still less that is it a condition that there should be no realistic prospect of a successful prosecution – see SSHD v E [2008] 1 AC 499 at [15]-[16]. In those circumstances, I agree with Ms McGahey that I cannot infer from the absence of a prosecution that any of the actions alleged against the Respondents must be assumed to be non-criminal or even lawful.

One argument advanced by all of the Respondents is that one purpose of imposing the TPIMs (and the relocation obligations in particular) was to deter other individuals from taking over their roles as senior figures within ALM and thereby further weakening the organisation. This, it is argued, was an improper purpose which infects the legality of the TPIMs and they should be quashed in consequence.

In the 1^st national security statement on ALM, the strategy is explained. It is said that the use of TPIMs against senior leadership figures within ALM would

The statement then expands on each of these. Under the heading ‘Long term disruption of ALM as a whole’ it is said,

These comments are echoed in the national security statements for the individual Respondents. Thus, for instance the 1^st national security statement for LG said,

Near identical wording was included in the corresponding sections of the 1^st national security statements for IM and JM.

The Respondents argue that the purpose of TPIMs, like that of control orders before them, is to prevent the individual concerned from being involved in terrorism in the future. They recall that under TPIMA 2011 s.3(4) and Condition D an individual measure must be necessary ‘for purposes connected with preventing or restricting the individual’s involvement in terrorist related activity’. Thus, they submit, a purpose of imposing relocation in order to deter others from terrorism related activity would be, and is, ultra vires.

Furthermore, it is argued, general deterrence of the kind reflected in the Security Service statements is not one of the factors which the SSHD has listed in her published statements in accordance with TPIMA 2011 s.2(4) (see above).

The Respondents also submit that, if the purpose of a TPIM was to extend to deterrence of others, then they would be taking on the character and function of criminal offences. This would then attract the more demanding procedural protections accorded to the determination of criminal charges in Article 6 of the ECHR. In the House of Lords in SSHD v MB [2008] 1 AC 440 the SSHD accepted that the civil limb of Article 6 of the ECHR applied to control order proceedings. However, it was argued that the additional procedural guarantees in Article 6 for criminal trials were not engaged because control order proceedings did not involve the determination of a criminal charge. The House of Lords accepted the SSHD’s argument. As Lord Bingham said at [24],

Lord Hoffman agreed and said,

He recognised that the meaning of ‘criminal charge’ was an autonomous concept. However, he added at [49]

An argument on these lines was made to Hickinbottom J. in the course of the s.16 appeal. He rejected it at [117] by saying,

The Respondents submit that Hickinbottom J. was wrong in his conclusion. Mr Hickman notes that MB in the House of Lords was not cited to the Judge. Although that case concerned control orders, it is clear that TPIMs were intended to serve the same preventative, not deterrent, purposes. Nor, Mr Hickman says, was Hickinbottom J. referred to the SSHD’s policy with which a deterrent purpose would be inconsistent. Furthermore, in his oral evidence in the present case, Mr Daly conceded that a deterrence purpose would be improper, although it might be a welcome by-product. The Security Service statements showed that deterring others from stepping up to the mark and taking on leadership roles was not just a by-product, but a central purpose of the TPIMs in general and the relocation measures in particular.

The Respondents argue that I should find that deterrence was part of the reason for imposing the relocation measures. It would be for the SSHD, not the court, to decide whether, absent the improper purpose, relocation would still have been included – see SSHD v AT and AW [2009] EWHC 512 (Admin) at [17]-[20] and accordingly, I should quash that measure in each of the TPIMs.

In response, Ms McGahey argues that the three broad objectives set out in the first ALM statement represent permissible purposes for a TPIM measure. She accepts that I have heard evidence that was not before Hickinbottom J., but she nonetheless adopts his argument that the degradation of ALM will also reduce the risk of the Respondents’ own engagement in TRA. She accepts that it would be unjustifiable to impose a TPIM on person A in order to dissuade person B from engaging in TRA where there was no link between A’s engagement in TRA and B’s engagement in TRA, but that does not reflect the present cases. In these cases, she argues, disrupting the individual and disrupting the organisation are two sides of the same coin.

While I have heard oral evidence that Hickinbottom J. did not and while more arguments may have been deployed by the Respondents on this occasion, I nonetheless come to the same conclusion as he did. I agree with Ms McGahey that it would not be permissible to impose a TPIM pour encourager les autres where there is no connection between the risk of the individual respondent’s engagement with TRA and the engagement of les autres in TRA. As I understood it, the evidence of Mr Daly (which had been given in Closed, but was made Open) was to the same effect i.e. that the individual measures had to be justified for the particular subject of the TPIM. The general deterrent effect on other members of ALM from ‘stepping up the mark’ would not be sufficient taken on its own. But, I agree with Ms McGahey as well that this model does not represent the facts of any of the present cases. Here the risk of the Respondents engaging in TRA in the future is, in part at least, connected with the continued existence of ALM. If the organisation withers, that will have a bearing on the risk that the individual Respondents will engage in TRA in the future. I have referred to ‘TRA’ but exactly the same points can be made if, for the purpose of Condition C, the focus is on ‘terrorism’ as defined in the TPIMA 2011.

Nor do I believe that acceptance of Ms McGahey’s argument means that TPIMs have become criminal measures. In MB Lord Bingham at [23] recognised that there was no watertight distinction between prevention and punishment: prevention is one of the aims of punishment and the effect of a preventative measure may be described as severe or even ‘penal’. I would add, on the same lines, that a preventative measure may have a harsh and thereby a deterrent effect. As in many other contexts, drawing a line between a preventative measure on the one hand and an instrument of the criminal law on the other can be difficult, but I am not persuaded that the collection of objectives in the ALM and national security statements for the individual Respondents crosses the line into impermissible territory.

Ms McGahey argued that the SSHD’s published policy was irrelevant because it concerned the travel restriction measure (see TPIMA 2011 Schedule 1 paragraph 2) rather than the ORM (TPIMA 2011 Schedule 1 paragraph 1). I think she is right. Certainly, the whole focus of the policy relates to limitations on travel. But even if, as the Respondents argue and I accept, that it is the combination of the travel restriction measure and the ORM which constitutes mandatory relocation, Ms McGahey had an alternative argument, namely that the objectives set out in the national security statements were compatible with the published policy. The first of the factors which the SSHD said she would take into account was ‘the need to prevent or restrict a TPIM subject’s involvement in terrorism-related activity.’ At the end of the list of bullet points, the SSHD had also added that she would take into account ‘the need to minimise the risk that the individual posed to the public.’ I agree with Ms McGahey. It follows that I do not accept the Respondents’ submission that the TPIMs or the ORM were imposed for an improper purpose.

Each of the Respondents has children. To varying degrees they have been adversely affected by their fathers’ TPIMs. To what extent should that affect my decision as to whether the father’s TPIM was necessary and proportionate and the relocation measures in particular were necessary and proportionate? I will look at the individual circumstances of each Respondent and his children in due course, but it is helpful at this stage to consider the common applicable principles. While these were much debated in the course of the hearing, there was not in the end substantial difference between the parties.

The UK is party to the United Nations Convention on the Rights of the Child (‘UNCRC’). Article 3.1 of UNCRC says,

In some contexts, this obligation in international law has been matched by domestic legislation – see for instance Children Act 1989 s.1, Children Act 2004 s.11 and Borders, Citizenship and Immigration Act 2009 s.55.

The SSHD says that there has been no provision of domestic law incorporating the UNCRC to the TPIM or control order context. Certainly, the Respondents have not directed my attention to any such authority. But, the value of this observation is limited. Firstly, on the international plane Article 3.1 appears to be general in its character. More particularly, the European Court of Human Rights has recognised that the ECHR has to be interpreted in harmony with the general principles of international law – see Neulinger v Switzerland (2010) 28 BHRC 706 at [131] and so the UNCRC has a pervasive influence through the medium of Article 8 of the ECHR - see ZH (Tanzania) v SSHD [2011] 2 AC 166 at [21]-[28] and H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC 338 at [15]. In R v Petherick [2013] 1 WLR 1102 the Court of Appeal Criminal Division considered that it was unnecessary to decide whether Article 3.1 of UNCRC applied to sentencing decisions, because they were undoubtedly subject to Article 8 and the balancing which it required – see [25].

These authorities have also considered how the best interests of children should be taken into account. The learning was summed up by Laws LJ in SS (Nigeria) v SSHD [2014] 1 WLR 998 where he said at [43]-[44],

I did not understand any of the Respondents to take issue with Laws LJ’s comments with which I respectfully agree. In any event, they are binding on me.

The SSHD also draws attention to the comments of Lord Mance in H(H) at [100] that no particular order for considering the competing considerations is prescribed – see, too, the views of Lady Hale at [33], Lord Judge CJ at [125] and Lord Wilson at [153]. At [144] Lord Kerr took a different view, although it seems to me that the balance was in favour of the non-prescriptive approach of Lord Mance. As it happens, in the subsequent, and now leading authority on Article 8 in the extradition context, Celinski v Poland [2016] 1 WLR 551 at [17], Lord Thomas CJ speaking for the Divisional Court said that they hoped that District Judges would draw up a balance sheet and list the factors favouring extradition and then those factors (often including the adverse impact of extradition on children) which militated against extradition.

LG is a dual British and Pakistani national. He was born in the UK and is now 39. Until September 2015 he lived in West London. He then moved to Slough. He sometimes uses the kunya, or pseudonym, [redacted]. He is married and has four children: daughters aged 13, 12 and 8 and a son aged 4. The children are in school or pre-school in Slough and have remained there with their mother. At the time the TPIM notice was served he was receiving Job Seeker’s Allowance and had occasional work as a bus driver.

In her open case the SSHD, as I have said, relies on the three statements regarding ALM (ALM1, ALM2, and ALM3) and statements specific to LG (LG1 dated 8^th June 2016 and LG2, dated 6^th March 2017). I also had the statements which had been prepared for the section 16 appeal. The SSHD called JB to give oral evidence. He has been a member of the Security Service since 2012. Since 2015 he has specialised in ALM. He confirmed the truth of the ALM statements and the specific national security statements for LG, IM and JM. He gave oral evidence in Open and in Closed. He was able to speak with authority based on his own personal experience and the accumulated experience of the Security Service. He backed up his assessments and opinions with examples. I found his evidence to be honest, credible and reliable.

There are also three statements specific to LG from Paul Daly, the Head of the Passport Seizure and TPIM Team within the Home Office. Mr Daly’s statements concerning LG are dated 8^th June 2016, 7^th March 2017 and 20^th March 2017. Additionally, Mr Daly made statements dated 29^th September 2016 and 19^th October 2016 for the variation TPIMA 2011 s.16 appeal. Mr Daly also gave oral evidence in Open and Closed sessions. He, too, had considerable experience of dealing with TPIMs. As with JB, I found his evidence to be honest, credible and reliable.

LG relies on statements which he has made for this review hearing and also statements from him and his wife [redacted] which were adduced for the s.16 appeal, statements he made to the police in response to allegations of breaches of his TPIM, and a report from Dr Deeley, a consultant psychiatrist. The dates of LG’s statements are: 13^th September 2016 (police statement), 20^th September 2016, 30^th September 2016, 6^th October 2016, 4^th November 2016, 15^th February 2017, 17^th March 2017 and 23^rd March 2017. His wife’s statements are dated 27^th September 2016 and 16^th January 2017. Dr Deeley’s report is dated 8^th October 2016. LG also relies on the reports of Imam Chowdhury, the Intervention Provider with whom he was required to meet and a statement which Imam Chowdhury made on 20^th March 2017 for the purpose of this review in support of LG.

The SSHD’s national security case is important, in the first place, in support of her case that Condition A was (and continues to be) fulfilled, namely that she was (and is) entitled to be satisfied on the balance of probabilities that LG is or has been involved in TRA. The national security case is also highly material to Condition C (in effect, that a TPIM is necessary) and Condition D (that each of the individual measures is necessary).

In summary, the SSHD alleges that (i) LG is a member and senior leader of ALM; (ii) he encourages and (through radicalisation) facilitates the travel of others to join ISIL in ISIL controlled territory; and (iii) engages in conduct amounting to radicalisation. The SSHD emphasises that her national security case against LG (and indeed, as will be seen, her case against IM and JM) is grouped in this way for convenience, but that should not detract from her case that the evidence has to be considered as a whole for the purposes of determining whether each of the Conditions has been satisfied. The SSHD’s case is that LG has been involved in TRA as defined in s.4(1)(b) and (c) of TPIMA 2011.

It is the SSHD’s case that, in the summer of 2014, LG became the leader of the West London group of ALM.

As I have said, LG was one of those who were arrested in [redacted]. He was arrested on suspicion of three offences: (a) being a member of a proscribed organisation contrary to TA 2000 s.11; (b) supporting a proscribed organisation contrary to TA 2000 s.12; (c) encouraging terrorism contrary to TA 2000 s.1. He was released on bail subject to stringent conditions. He was informed in September 2015 that he was not to be charged and no further action would be taken in respect of the matters for which he had been arrested in [redacted].

The SSHD accepts that the imposition of bail conditions impacted on LG’s ability to play a role in ALM, as, since June 2016, have the TPIM measures. It is her case that ALM has no formal or rigid leadership structure. Nonetheless, it is her case that LG continues to fill a senior and leading role.

She accepts that there have been disagreements between LG and some members of ALM. But, she argues, that is because, in some part LG’s views were even more extreme than those of ALM. Despite these disagreements, it is her case that LG continues to fill a leading and senior role within ALM. She does not accept his case that his attendance at ALM events was just, or primarily, to socialise.

The SSHD’s case is that LG himself wished to travel to ISIL territory. His passport was cancelled in April 2014.

Her case is that he had advance knowledge of the travel plans of three individuals who, in January 2014, tried to travel to Syria: Luqman Abdullah Hersi Warsame (‘Warsame’), Nadir Ali Syed (‘Nadir’) and Yousaf Syed (‘Yousaf’). Nadir was prevented from travelling because of bail conditions at the time. Yousaf was persuaded by his parents to come back from Turkey. Warsame succeeded in reaching Syria. He died fighting for ISIL in November 2014.

The SSHD also assesses that LG remained in contact with some of those who have travelled to ISIL’s territory and passed messages to senior ALM members in the UK. The SSHD gives the examples of Abu Rahin Aziz (‘Aziz’), a British national who also fought for ISIL and who was killed in Syria in July 2015. The day after his death, LG re-tweeted a message from Aziz and indicated that he saw Aziz as a martyr. LG and another British national who died fighting for ISIL, Junaid Hussain, (‘Junaid’) were mutual followers on Twitter and able to exchange private messages. LG sent to Mizanur via the messaging service, WhatsApp, four audio clips from another ISIL fighter, Omar Ali Hussain (‘Hussain’) which encouraged hijrah (in effect, travel to ISIL controlled territory) by British Muslims.

In January 2016 LG is said to have been in contact with a woman called [redacted] [‘T’] and told her that,

LG is said to have been instrumental in the radicalisation of some young British Muslims. One of them was a 15 year old boy [redacted] who was sentenced to detention for life with a minimum term of 5 years. LG was re-arrested on 23^rd April 2015 in consequence of this incident though in June 2015 he was told that no charges would be brought against him in relation to this matter. On 23^rd February 2015 LG told the boy that it was not permissible to kill a madkhali [a strand of Islamist thought, notable for its support for secular forms of government] ‘unless you consider them kuffar [i.e. an unbeliever]’. On the same day, LG identified a particular individual as kuffar, saying, ‘yes he is mushrik [someone who commits the unpardonable sin of believing in polytheism], he works with the police.’ In March 2015 LG sent the boy a video in which there was reference to kafir [unbeliever] bombing a hospital and killing babies. The boy replied ‘Qisas [revenge] is near.’ LG sent the boy further videos. The case against the boy was that he committed his offence in March 2015.

After LG’s arrest in April 2015, [redacted], a young British Muslim, posted a YouTube video in support of LG and calling on people to take action if LG was not released from police custody. The SSHD’s case is that [redacted] was significantly influenced by LG. [redacted] was later convicted of offences under terrorism legislation and sentenced to 5 years’ imprisonment.

Nadir, whom I have already mentioned, was alleged to have close links with LG. In November 2014 Nadir together with others purchased a knife and a knife sharpener. The same evening Nadir was arrested for an offence under TA 2006 s.5 for planning an attack similar to that on Lee Rigby. Nadir was convicted of this offence on 15^th December 2015. One of the others with whom Nadir was arrested was Yousaf. He, too, was charged with an offence under TA 2006 s.5. He was tried at the same time as Nadir. The jury was unable to reach a verdict in his case. He was retried in May 2016 and acquitted. Both Nadir and Yousaf listed LG’s phone number as one they wished to call from prison. LG visited Nadir in prison in January 2015.

A Canadian extremist, Fahad Shaik, admitted to watching LG’s online videos. LG met Fahad Shaik when he transited through the UK in May 2015. On that occasion Fahad Shaik was stopped and interviewed. He said he had been attracted to LG’s style of preaching. An examination of Shaik’s phone showed about 20 photos of dead fighters and combatants carrying ISIL flags. The SSHD takes LG’s impact on Shaik as illustrative of the reach of LG’s radicalisation beyond the UK.

In [redacted] Channel 4 broadcast a documentary entitled [redacted] [‘documentary 1’] LG was referred to in the programme [redacted].

More generally, the SSHD relies on LG’s prolific use of on-line videos which has given him a considerable public profile. On [redacted] Channel 4 broadcast a documentary called [redacted] [‘documentary 2’] which featured extensive interviews with LG. In the course of these, LG said, [redacted]

I have said above that the SSHD’s case is that LG was involved in TRA as defined in TPIMA 2011 s.4(1)(b) and (c). She does not rely on s.4(1)(a). It is to be inferred from this that she is not alleging that LG’s TRA took the form of the commission, preparation or instigation of acts of terrorism. The same applies to her case against IM and her case against JM.

LG does not dispute that he has had some involvement with ALM in the past. He does dispute its extent.

LG says that, whatever may have been the position in the past, he is no longer a member of ALM or a senior leader of the organisation. Since 2015 he has had ideological differences with ALM. His views on takfir (excommunication) are at odds with those of ISIL. Indeed ISIL has murdered clerics in the territory it controls who subscribe to the same takfirist views as he does. As a result, he says, ALM regards him as deviant. He has, he says, no influence on the organisation. He does continue to meet with some of the individuals, but this is for social purposes and sometimes to express his views which ALM still regard as antithetical. In his statement of 15^th February 2017 he gives an example of a conference which he attended in Edmonton, just before his TPIM notice was served in June 2016. This occurred during Ramadan and LG says he went because he knew there would be food at the end of a day of fasting. When he arrived he sat at the back of the room.

LG draws attention to a Facebook posting [redacted] who said of LG that he ‘has no formal sitting in any study circle of any sheikh or his student to know what is right or wrong of Takfeer.’

LG says that he does not believe that ISIL has established a legitimate Caliphate. He says that this has been his position from at least the time the TPIM was imposed. He says he would not encourage anyone to travel to ISIL territory. He accepts that he had been open about his views on social media since around October 2014, but he believes that nothing he has published has broken the law. He says that whatever impression may have been created by [documentary 2] he would not now wish to go to Syria. He said that T was one of several women who contacted him as a result of his publications. She wanted a romantic relationship which LG says was not his wish. He made the remarks he did in an effort to put her off. They did not represent his true views.

LG spoke positively of his 15 meetings with the Intervention Provider, Imam Chowdhury.

In his statement Imam Chowdhury says that he has worked as a prison chaplain since 2008. He has worked as an Intervention Provider for the Home Office for 6 -7 years and has been engaged on this and one other TPIM case. The purpose of his work with LG has been to minimise ideological risks through dialogue and by exploring the religious basis for extremist views.

He reports a positive experience of his work with LG who, he says, wished to engage very soon. LG’s main theological view was takfirist i.e. that others who did not subscribe to the same strict and literal views were not true Muslims and ought to be excommunicated. Imam Chowdhury reports that when they first met LG considered that any Muslim who took part in the democratic process was an unbeliever and those who sought redress through the British court system were apostate. LG had believed that ISIL were insufficiently extreme or pure in their approach to secular authorities.

In Imam Chowdhury’s view LG has made significant progress towards becoming integrated into a more mainstream understanding of his faith. He thinks that shift in LG’s attitude is believable, although incomplete. He has expressed regret for some of the videos he produced. The TPIM has given LG distance from his previous associates and allowed him space to reflect on his previous views. In Imam Chowdhury’s view, continuation of the TPIM is not necessary to allow this progress to continue. As a sign of LG’s progress, Imam Chowdhury notes that LG had referred him to a woman who had been depressed and whom LG thought would benefit from a more moderate environment.

Imam Chowdhury based his views on his conversations with LG. He had not had access to any of the Closed material and he was not sure that he had even seen all of the open material.

As I have noted, the essence of LG’s response to the national security case is that, whatever may have been the position in the past, he is not now a member of ALM, there is not now a risk of him engaging in TRA or terrorism. These matters will be relevant and important in relation to my review of the SSHD’s decisions in relation to Conditions C and D. As I have already explained, for the purposes of Condition A, the SSHD had to decide whether, on the balance of probabilities, she was satisfied that LG is or has been involved in TRA. In her closing submissions, the SSHD submitted that LG had not disputed that he had at least (at some time in 2014) been the leader of ALM in West London. He has not challenged the evidence that he had (again, at least, in the past) been involved in radicalising activities by making videos, nor his communications with the 15 year old boy. In [documentary 2] he [redacted]. On the basis of all of the open evidence the SSHD was clearly entitled and right to conclude that Condition A was satisfied as far as LG was concerned. That conclusion is fortified by the Closed evidence.

I have said that the second question under Condition C is whether the TPIM continues (in the present tense) to be necessary. That was the question at the time of the hearing and it was still the question up to the point that the TPIM was revoked. It is likely (although I did not receive submissions on the subject) that, following the revocation of LG’s TPIM on 10^th June 2017, the question became whether the TPIM continued to be necessary up to the date of revocation. However, it has not been suggested that anything turns on this refinement and, for convenience, I shall still use the present tense. Exactly the same points can be made in connection with my review of Condition D in LG’s case.

As I have already said, undoubtedly the measure which has caused each of the Respondents the greatest anxiety and hardship has been the ORM which, coupled with the travel restriction measure, constitutes mandatory relocation. It seems to me, though, that those measures ought properly to be reviewed in the context of Condition D and, having reviewed the measures individually, I will return to consider whether the SSHD was entitled to decide that the overall package was necessary and proportionate.

Setting aside for the present, therefore, LG’s objections to relocation and the other individual measures, the essence of his case on Condition C is that a TPIM is not necessary for the purpose of protecting the public from terrorism because his views have changed. Moreover, his links with ALM are no more than historic. He is no longer a leader of the group. Such contact as he has with others whom the SSHD regards as still members of ALM are for social, or other non-terrorist purposes.

In a gist of part of the Closed evidence provided in open after the hearing, it was said that the SSHD accepted that there had been ‘fluctuation in [LG’s] relationship with ALM’. In his submissions dated 15^th May 2017 Mr Hickman argued that this rendered the SSHD’s assertion that LG was a senior leadership figure in ALM ‘infirm’. However, the SSHD does not accept that LG’s association with ALM is just historical. She points to the evidence that he attended an ALM event on 11^th June 2016, just before the TPIM notice was served. To the extent that he had adopted a somewhat lower profile, that could be explained by matters other than a change of heart. The programme [documentary 1] in which LG had featured had been broadcast in [redacted] and the [documentary 2]programme (which also featured LG prominently) had been broadcast in [redacted]. The trial of Anjem and Mizanur was originally due to take place in early 2016. There had been a police operation against ALM in Luton. All of these were reasons why LG might have chosen to take a less prominent role in the months immediately leading up to the service of the TPIM.

The ideological difference between LG and, at least some members of ALM, appeared to be because LG thought ALM and ISIL were insufficiently extreme in their views about takfir. That gives little comfort that his risk is reduced.

Imam Chowdhury considers that LG’s views were changing and in a positive direction. The SSHD does not accept this represents a genuine change of position on LG’s part, but is self-serving. As Imam Chowdhury acknowledged, he did not have access to the Closed material. He was dependent on what LG chose to tell him. The SSHD also observes that, as recently as January 2016, LG was telling [redacted] T that he supported the call for sharia, that he believed the khilafah had been established and, if he had a passport, he would try to get there. It was a curious means of trying to discourage a young woman bent on a romantic relationship, particularly one who had been attracted to LG in the first place because of his extreme publications. It is not, of course, an explanation that has been tested by cross examination. Some months later (and after the TPIM had been imposed) he applied to have T as an approved contact. Furthermore, his communication with T over social media had lasted three months, and was not the brief exchange which he had previously said in a witness statement for these proceedings. There was no evidence of radicalisation in these exchanges, but there was the beginning of a pattern, [redacted], of gradually leading vulnerable individuals into more extremist meetings. LG had been found by Hickinbottom J. to have ‘deliberately exaggerated the nature and extent of the abuse he has suffered [in Location A] and the effect it has had upon him’ - see [126]. It is fair to say that LG had not given oral evidence before Hickinbottom J. but the Judge was able to draw this conclusion from the contrast between what LG had said in his witness statements about the incidents in question and what could be seen on CCTV footage of one of them.

In my judgment, the SSHD was entitled to come to the reasonable conclusion that Condition C was satisfied at the time the TPIM was imposed and entitled to decide that Condition C continues to be satisfied. I accept that she was entitled, for the reasons already given, to be sceptical of LG’s professed change of heart and direction and to doubt whether it was both genuine and complete. It is also noteworthy that LG chose not to support this positive case by giving oral evidence. The account of the length of his dealings with T which he gave in an earlier witness statement and which he also gave in his meetings with Imam Chowdhury was inaccurate. That, added to the findings of Hickinbottom J., gives additional support to the SSHD’s conclusions regarding Condition C. In a note dated 15^th May 2017 Mr Hickman argued that the T incident did not assist the SSHD because there was no evidence that he tried to recruit her to ALM. I do not accept that the relevance of the incident is so limited and Mr Hickman’s submissions do not alter my conclusion. I have also reached the same view (that the SSHD was entitled to decide that Condition C was, and continues to be satisfied) on the basis of the Closed evidence.

I will consider separately those measures in relation to which LG or Mr Hickman raised specific objection. So far as the other measures are concerned, I consider that the SSHD was entitled to decide that they were necessary and proportionate and continue to be so. I reach the same conclusion in relation to the measures in the TPIMs for the other Respondents where no specific issue is taken with the measure in question.

I will take first the ORM and travel restriction measure which together amount to mandatory relocation.

The SSHD’s case is that ORM is necessary because it will prevent LG from engaging in TRA, in particular those involving ALM and its radicalising activities; it will help prevent him from organising ALM meetings and talks in London; it will help prevent him from attending da’wah stalls and other ALM activities; it will limit his ability to act in a leadership role; and will help manage his abscond risk.

As already noted, a further advantage that the Security Service saw in ORM was that it would further disrupt and degrade ALM as an organisation.

LG argues that relocation was not and does not satisfy the requirement of necessity or proportionality. He relies in particular on the following aspects:

At the time of the hearing before Hickinbottom J. there had been 7 incidents on which LG relied as showing that his safety was at risk, particularly from far right extremists. In his judgment Hickinbottom J. reviewed carefully the evidence as to each. He gave his conclusions as follows:

Before me Mr Hickman observed that ‘Netflix’ had recently made available [documentary 2] and that had increased LG’s concern since the hearing before Hickinbottom J. [redacted]

Furthermore, since the s.16 appeal there had been two further incidents:

After this judgment had been prepared in draft and while the procedure in CPR r.80.29 was taking place, I was informed that yet further and more serious incidents had occurred, namely:

The TRG minutes for the meeting on 9^th March 2017 noted that the first of these incidents (the fire in the rubbish bin or bag) had been investigated by the police. It had not been possible to establish the cause of the fire. There was no information or intelligence to suggest that the EDL had been responsible. The second incident took place after that TRG meeting. In his evidence, Mr Daly said that the police were still investigating it. The CCTV on which it had been captured had been installed on the Home Office’s instructions on 18^th January 2017.

Dr Deeley diagnosed LG as suffering from a depressive disorder of moderate severity, a generalised anxiety disorder with severe symptoms of anxiety and an opioid dependence syndrome. LG had a past history of opioid dependence but immediately prior to his relocation he did not appear to have been suffering from any mental health conditions. In Dr Deeley’s view his present conditions are a result of a predisposition to depression because of low self esteem and social isolation. The threats of violence which LG reported made him feel acutely anxious and worried about the safety of his wife and children when they visited him in Location A. He thought the prognosis was poor if LG stayed in Location A. Dr Deeley thought that LG’s relapse into drug use had been precipitated by the stress of relocation and resulting insomnia.

Dr Deeley’s report was before Hickinbottom J. who accepted that LG suffered loneliness, depression and symptoms of anxiety as a result of the relocation. He added (at [134])

The medical notes refer to LG’s use of a heroin substitute. There is no further report from Dr Deeley.

Mr Hickman argues in addition that relocation could not be required to prevent LG’s social media or online activities. These can be done anywhere and, in any case, are prevented by other measures in the TPIM. Nor is it necessary for LG to be relocated to prevent him attending da’wah stalls or giving public talks: both of these could be prevented by conditions akin to bail conditions. If these alternatives were tried and found to be wanting, then a relocation provision might be justified. The alleged risk of absconding is no more than an assertion. Even if, contrary to LG’s case, he was presently a leader of ALM, his role in that capacity could be prevented more proportionately by restricting his association with others or by restrictions on his means of communication.

I note that LG’s wife has said that the other restrictions in LG’s TPIM would make it too difficult for their children if he moved back into their home. She does, though, support his position that he should be able to live close to his family and not be required to live in Location A.

In my view the SSHD was reasonably entitled to conclude that the ORM was and continues to be necessary (and proportionate) for purposes connected with preventing or restricting LG’s involvement in TRA.

Recalling Lord Sumption’s proportionality principles, the protection of the public from terrorism and TRA was of prime importance and plainly sufficient to justify some limitation on the fundamental rights of LG and his family. There was a rational connection between relocation and the achievement of those objectives. In deciding whether less intrusive measures would have been sufficient without unacceptably compromising this objective, I bear in mind in particular:

The Closed evidence supports this conclusion. The SSHD was entitled to decide on the basis of the closed and open evidence that the lesser alternatives to an ORM would not have been adequate.

On 13^th March 2017 the SSHD added Kareem [redacted] to the list of people with whom LG was not allowed to associate or communicate. The Home Office’s letter of that date said that Kareem was ‘an associate of individuals linked to ALM and it was assessed that he was aware of LG’s senior leadership role in ALM’. LG says that Kareem was a close friend of his with whom he had spoken regularly and frequently. This relationship was important to him and helped to reduce his feeling of isolation in Location A. Furthermore, as he had mentioned to Imam Chowdhury, he challenged Kareem on some of his views and he deployed some of the arguments which had come out of his discussions with the Imam.

Ms McGahey did not object to the issue of the addition of Kareem being added to the prohibited contacts list being canvassed in this review. In those circumstances, I will consider the issue. However, if such matters of detail are to be raised, it is important that the SSHD has sufficient notice for them to be properly addressed in the evidence.

Having considered all of the evidence, I accept that the SSHD was entitled to make this addition to the list of in LG’s Association Measure. In his statement of 17^th March 2017 LG complains that the information he was given as to why Kareem had been added was sparse. That is not unusual given the context in which the SSHD has to take such decisions.

Mr Hickman adopted the arguments which were led by Mr Friedman on this issue. He, too, submitted that, in this connection the measure was unacceptably vague and over-broad.

As I explain when I turn to the issues in IM, I agree with Mr Friedman that, in this respect, the association measure needs to be varied. On this matter, the arguments are the same for all the Respondents. So far as LG’s association measure concerns religious advice, it, too, must be varied.

In the first national security statement, this requirement is justified as providing assurance of LG’s whereabouts and reducing the risk of him absconding.

LG argues that the police station is a 45 minute walk from his residence and requires him to go through a shopping centre where he feels threatened. He argues that the requirement is disproportionate since the tag he wears already provides a means of monitoring his movements and he is, anyway, allowed to report by telephone at the weekends.

I have considered this issue both in open and in closed. While there is a value in requiring LG to attend personally at the police station on some days, it would be a proportionate requirement for him to do so three days a week (Mondays, Wednesdays and Fridays). On the other days (Tuesdays and Thursdays) like Saturdays and Sundays under the present arrangements, he will be required to telephone in to the monitoring company within a prescribed time band.

This is justified in the first national security statement as a means of restricting LG’s ability to fund TRA or to procure funds to assist in any attempt to abscond. Mr Hickman argues that this is not necessary. There has been no accusation against LG that he has funded TRA, or that he has any significant assets which could be used for such a purpose. Furthermore, LG has not sought to travel abroad since his passport was cancelled, and he would need to accumulate a very substantial sum to do so now. Mr Hickman added that the measure restricted LG from withdrawing more than £75 in any one week, not simply from having more than £75 on his person at any one time. There was no necessity for that prohibition. £75 was also being treated as the standard limit, without any consideration of the individual’s personal circumstances.

I do not accept Mr Hickman’s arguments. The SSHD was entitled to decide that both reasons justified the measure and to decide that it was proportionate. It was not necessary for the SSHD to have evidence that LG had funded TRA in the past for her to believe that the measure was necessary to stop him from funding it while on a TPIM (particularly if the other measures inhibited his other activities), and the risk of absconding against which the measure was intended to protect, was not just travelling abroad. Mr Daly also emphasised in his evidence that the measure applied only to cash. It did not stop LG from using a debit card up to any amount. There was no reason why the SSHD should not adopt a standard limit, as long as there was sufficient flexibility to alter it if an individual’s circumstances meant that the standard amount would be a disproportionate restriction. There was nothing in the material which LG has put before the court to suggest that this is so in his case.

Mr Hickman (like Mr Friedman and Mr Southey) commented that the TPIMs imposed on the Respondents included each of the possible measures in TPIMA 2011. Taken as a whole, they submitted, this was an unreasonable, unnecessary and disproportionate burden to place on each of them and not justified by whatever limited risk to the public they might pose. They argue that bail type conditions would be sufficient. After all, it is submitted, the arrest of Mizanur and Anjem [redacted] was considered to be disruptive of ALM and the bail conditions which were then imposed inhibited Mizanur and Anjem from fully discharging their former roles as leaders of ALM.

For the reasons which I have given here (and in the Closed judgment) the SSHD was entitled to decide that this would not be an adequate solution to the risk which she considered LG posed. Taken as a whole the measures are burdensome, but the SSHD was entitled to regard them as nonetheless necessary and proportionate for purposes connected with protecting the public from a risk of TRA and a risk of terrorism.

The SSHD was and continues to be entitled and right to decide that Condition A is satisfied.

The SSHD was and continues to be entitled to decide that Condition C is satisfied.

The SSHD was and continues to be entitled to decide that Condition D is satisfied with the following exceptions:

IM is a 40 year old British national who was living in north west London at the time the TPIM notice was served. He was married to [redacted] but was divorced from her in 2013. They have four daughters aged 13, 11, 10 and 5 and a son aged 7. When the TPIM notice was served IM was living with his eldest daughter (the 13 year old). His ex-wife and the other children lived in East London. In September 2016 (and so about 3 months after the TPIM notice was served), IM’s eldest daughter joined him in Location B1. She then moved with him to Location B2. His wife and other children remain in East London. IM uses the kunya, [redacted].

In her open evidence, the SSHD relies on ALM1, ALM2 and ALM3, the two national security statements specific to IM viz IM1 and IM2 and Mr Daly’s two statements relating to IM.

IM relies on two statements of his own, dated 29^th September 2016 and 22^nd March 2017, a statement from [his wife] also dated 29^th September 2016, a report by a psychiatrist, Dr Meena Naguib, dated 15^th August 2016 and a report from an independent social worker, Christine Brown, dated 21^st October 2016. While all the other open evidence was cross-served on each of the Respondents, on 24^th February 2017 I gave permission for redacted versions only of IM’s evidence to be cross-served. Un-redacted versions were served on the SSHD and IM’s Special Advocates. What was redacted concerned sensitive personal information about a third party minor. The redacted parts were not publicly referred to during the course of the hearing. The SSHD, LG and JM did not object to this course. I directed that notice of my decision should be served on the Press Association and gave any media organisation a limited opportunity to apply for this part of my order to be set aside or varied – see SSHD v IM, JM and LG [2017] EWHC 376 (Admin). None did. During the open hearing, there was a short period when Mr Friedman QC, on IM’s behalf, made closing submissions which made some reference to this material. He did so in the absence of LG and JM and their legal teams.

The broad outline of the SSHD’s national security case against IM has the same three elements as with LG (and indeed JM – see below), namely (a) he is a senior leadership figure in ALM; (b) he encourages and (through radicalisation) facilitates the travel of others to join ISIL; and (c) he engages in conduct amounting to radicalisation. As with LG (and JM) the SSHD’s case is that IM has been involved in TRA as defined by TPIMA 2011 s.4(1)(b) and (c).

IM accepts that he was a member of ALM in the distant past, though not a leader. He maintains that ALM was dissolved in 2004, that the organisation no longer exists and he is not therefore a member or a leader of it. OBM is a person whom IM respects and OBM officiated at the wedding of IM and his wife. IM is not prepared to denounce OBM.

The SSHD does not accept that ALM has ceased to exist. She maintains that IM remains a senior leadership figure.

On 30^th June 2014 (and so a few days after Al-Baghdadi’s declaration of the Caliphate) IM engaged in an exchange of messages with Mizanur and Anjem. He is the first in that sequence to refer to ALM. He points out that it has been disbanded but a new emir needs to be appointed. He urges recognition of the Caliphate and calls for a meeting of the brothers. He was not one of those who attended the meeting which did take place (on [redacted]) but, the SSHD submits, this was because he was not trusted to be sufficiently security aware. IM himself speculated that he was not invited because he was known to be ‘abrupt and unconsidered’.

In September 2014 when Mizanur was arrested, his mobile phone was seized and investigated. It included a photograph of a handwritten organogram entitled ‘Cultural Committee’. This identified a ‘core team’ which included Anjem and Mizanur and also a name which the SSHD says is a shortened version of IM’s real name.

IM appeared in the documentary [redacted] [documentary 2]

The SSHD alleges that IM was active in organising and promoting the organisation Need4Khilifah as could be seen from messages on IM’s phone at the time of his arrest in [redacted]. The SSHD refers, for instance, to one such message of 15^th February 2014, although it is accepted that this preceded the designation of Need4Khilafah on 26^th June 2014 as an alternative name for the already proscribed organisation ALM.

IM is alleged to have taken part in a number of ALM-affiliated events including a protest outside Paddington Green Police Station on 31^st January 2014, a protest outside the Lebanese Embassy on 4^th April 2014 and a demonstration outside the Indian High Commission on 9^th May 2014.

IM was recorded speaking at an ALM event on 27^th June 2015 in which he spoke passionately against the kuffar.

On 30^th June 2014, and so a few days after Al-Baghdadi had declared a Caliphate and himself as the Caliph on 24^th June 2015, IM is alleged to have declared his own allegiance to Al-Baghdadi. He said,

IM’s case is that he was speaking of the abstract concept of a leader governing according to Sharia law in an abstract conceptual Caliphate. The SSHD does not accept his explanation and argues that it was simply a declaration of support for Al-Baghdadi.

In IM’s view there was a short (3 day) window in which Muslims should pledge their allegiance to a declared Caliphate. On 29^th June 2014 IM sent Mizanur excerpts from an English translation of an ISIL speech which called on Muslims to recognise the Khalifah. The following day, 30^th June 2014 (and the same day that he made his own declaration of allegiance), he said to Mizanur, that ‘We have until Wednesday evening to appoint an Amir. That would be three days. The Shura needs to gather …’ On 2^nd July 2014 he again said to Mizanur that they had to move quickly and declare bayah [i.e. allegiance].

As already noted, it is the SSHD’s case that ALM did indeed declare allegiance to Al-Baghdadi in the message that was posted on the Indonesian website on 7^th July 2014.

In further support of her case that IM supported ISIL, the SSHD relied on pro-ISIL extremist material found on IM’s laptop when he was arrested in [redacted], numerous internet searches regarding jihad, exceptions to the jihad obligations (the SSHD assesses that IM himself seems to have believed that he was himself exempt from a duty to travel to ISIL territory because of his ill-health), and to ISIL material found on IM’s phone when he was arrested and [redacted]

As to the SSHD’s case that IM encouraged others to travel to ISIL territory, she also relies on an exchange on WhatsApp with Siddartha Dhar (‘Dhar’) [redacted]. Dhar is alleged by the media to be an ISIL-fighter who is shown (masked) in a propaganda film murdering 5 individuals. [redacted]

In addition to matters already referred to, the SSHD relies on [redacted].

IM disputes that ALM continued to exist after its disbandment in 2004. He says that there is, at most, a group of like-minded associates who share a common ideology which, if provocative, is within the law. He was not a signatory of the declaration which purported to be made on behalf of ALM. He was excited at the announcement of a Caliphate by Al-Baghdadi because this was an event for which many Muslims had been waiting, but he remained uncertain as to its legitimacy. His personal declaration of allegiance was for the abstract concept of a Caliphate. It was also a product of his mood disorder which Dr Naguib has diagnosed.

IM denies that he has ever had a leadership role within ALM. He was not identified as a ‘team leader’ on the organogram. Although his name featured on the list seized from [redacted, another ALM member]’s home, it appeared only with a question mark by its side, and not in the top section of the list that was assessed to denote leadership figures. He was not one of those who took part in the meeting on [redacted]. His messages which preceded this meeting support his case that he thought the organisation no longer existed – that was why a Shura and a new emir were needed.

[redacted]. His comments at the meeting in Luton in June 2015 about throwing gay men from high buildings were in line with some Muslim thinking. They were not encouragement for terrorist acts.

IM’s case is that he observes the covenant of security. As such he considers that he must not attack the country in which he is living. Indeed, the SSHD does not allege that he has participated in any attack planning in the UK.

I have summarised the SSHD’s national security case. In my view she was entitled and right to decide that IM had been involved in TRA for the reasons which she has given. She was entitled and right to find that ALM continued to exist and that IM was a senior leading figure within it. She was entitled and right to find that he had, through radicalisation facilitated or encouraged others to join ISIL to whose Caliphate he had personally declared allegiance and also that his conduct amounted to radicalisation. The 1^st March 2017 statement on ALM explained why the Security Service took no comfort from the Covenant of Security. Individuals could (and had) come to the view that the Covenant had been broken by the UK authorities and so relieved them of any obligation to observe its restrictions. ISIL itself had called for attacks on the West and ALM as an organisation had pledged allegiance to ISIL. My conclusions are reinforced by the Closed evidence.

In my view the SSHD was and continues to be entitled reasonably to conclude that a TPIM on IM was necessary for the purposes connected with protecting members of the public from a risk of terrorism. Once again this conclusion is supported by the Closed evidence.