Case No: PTA/42/2006
Neutral Citation Number: [2016] EWHC 1845 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/07/2016

Before :

MR JUSTICE COLLINS

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Between :

	SECRETARY OF STATE FOR THE
HOME DEPARTMENT	Applicant	
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	AL	Respondent	

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Mr Tim Eicke, QC and Mr Steven Gray (instructed by the Government Legal Department) for the Applicant
Mr Hugh Southey, QC and Mr Barnabas Lams (instructed by Arani & Co) for the Respondent
Mr Jeremy Johnson, QC and Mr Zubair Ahmad (instructed by the Special Advocates’ Support Office) as Special Advocates

Hearing dates: 17th – 19th May 2016

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Judgment
Mr Justice Collins: 
1.	This case concerns a control order which was imposed on AL on 28 December 2006. It was renewed on 5 December 2007. It was revoked on 20 February 2008 because AL was then serving a sentence of 4 years imprisonment for offences of aggravated burglary, criminal damage and robbery for which he had been arrested on 6 July 2007 and been in custody ever since. The order was imposed pursuant to the Prevention of Terrorism Act 2005. Section 3 of the Act required permission to be obtained from the court before a control order could be put into effect and that permission was granted by me. Section 3(2)(c) required that directions be given for a hearing in relation to the order ‘as soon as reasonably practicable after it is made’. Section 3(10) required the court in such a hearing to determine whether the making of the order or any obligation contained in it was flawed. The order could only be made if, as section 2(1) of the Act provided, the applicant:-
“(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual”.
2.	The 2008 Act was repealed by the Terrorism Prevention and Investigation Measures Act 2011 (the TPIM Act) on 15 December 2011. Thus not only is this application to be dealt with long after the order was revoked but equally many years after the 2005 Act was repealed. Schedule 8 of the TPIM Act provides by paragraph 3(1) that the repeal of the 2005 Act does not ‘prevent or otherwise affect’ the holding of any hearing in relation to the imposition of a control order. But the power of the court is limited by paragraph 3(2) to determining whether the control order or any renewal of it or any obligation in it should be quashed. It is obvious that the power to direct revocation cannot be available when no order continues to exist.
3.	The respondent did not appeal against the renewal of the order and so I am only concerned to decide whether the order should be quashed because the making of it was flawed. A hearing pursuant to section 3 of the 2005 Act came before Ouseley J in July 2007. On 17 August 2007 he gave judgment upholding the lawfulness of the order. His judgment was reached before the House of Lords decided in SSHD v. AF (No 3) [2010] 2 AC 269 the extent of disclosure that had to be given to a controlee to ensure that he had a hearing which complied with the requirements of Article 6 of the ECHR. The House of Lords decided that further disclosure beyond that which the Court of Appeal had regarded as sufficient was needed. The respondent had lodged a notice of appeal against Ouseley J’s judgment on 12 December 2007. This was based on the contention that the hearing had breached Article 6. It was not until 11 May 2010 that Maurice Kay LJ granted leave to appeal. On 8 July 2010 the appeal was allowed by consent without consideration of the merits and the case was remitted to this court to redetermine the issue. It is to say the least unfortunate that it has taken nearly 6 years for this redetermination to take place.
4.	As it happens, I had to deal with a similar case SSHD v. GG [2016] EWHC 1130 (QB) in which attacks on a control order which had been revoked in 2010 were being pursued. That case had been remitted by the Court of Appeal on the same basis as this case, namely because the original decision upholding the order had been made before the disclosure requirements imposed by AF (No 3) had been established. I thus had to consider how I should approach the previous judgment. I dealt with this in paragraphs 12 and 13 of GG. Since the respondent has not had knowledge of all relevant material, the guidelines set out in Devaseelan v. SSHD [2008] Imm AR 241 do not apply. Thus what I must do is to reconsider the findings made by Ouseley J in the light of any further evidence resulting from the additional disclosure which has now been made and which is accepted to have been compliant with the law as set out in AF (No 3). The respondent has served three additional statements and has given evidence in support of them. He did not give evidence before Ouseley J. I should only add that, as Mr Eicke accepted, I should not vary any findings made by Ouseley J which were favourable to the respondent.
5.	The 2005 Act followed in this respect by the TPIM Act requires the court to ‘apply the principles applicable on an application for judicial review’ in determining whether a decision was flawed (s.3(11)). How this should be applied was considered by a strong court of appeal in SSHD v. MB [2007] QB 415. Since convention rights were involved, it was necessary for the court to have regard to facts as they were at the time the court made its order. As Lord Phillips CJ, giving the court’s judgment said at paragraph 40:-
“Section 3(10) of the [2005 Act] cannot be read so as to restrict the court, when addressing a human rights issue, to a consideration of whether, when he made his initial decision, the Secretary of State had reasonable grounds for doing so”.
In paragraphs 43 to 46 Lord Phillips continued:-
“43. It would be manifestly unsatisfactory that the court should have to apply a different approach to reviewing a control order depending upon whether or not it interfered with a Convention right. Furthermore if section 3(10) only permits the court to consider whether the Secretary of State's decision to make the control order was properly reached at the time that he made it, it will not, as Article 6 requires, enable the controlled person to have a fair review of his civil rights as they are at the time that the review is carried out.
44. It is implicit from the provisions of section 7 and would, we think be implicit even without those provisions, that it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary. A purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed.
45. Such an approach accords with the approach of this court under ordinary principles of judicial review, see R v Secretary of State for the Home Department ex p Turgut [2001] 1 All ER 719 where Schiemann LJ said:
"If an applicant for permission to move for judicial review claims that the Secretary of State's decision is vitiated by some form of illegality he will file evidence to that effect. The Court will not shut out evidence which is relevant to the issues. Indeed, it may order disclosure of evidence necessary for disposing fairly of the application. The evidence is not strictly limited to evidence which was or should have been before the Secretary of State at the time of the decision."
46. For these reasons we consider that section 3(10) can and should be 'read down' so as to require the court to consider whether the decisions of the Secretary of State in relation to the control order are flawed as at the time of the court's determination.”
6.	Paragraph 46 must be read in context. The court must consider evidence which may or may not have been available to or considered by the applicant when it was decided to impose the control order if that evidence shows that material relied on to raise the necessary reasonable suspicion could not have justified that suspicion. Parliament had assumed that s.3(10) hearings would take place as soon as possible after the control order was imposed. So much is clear from the requirement in s.3(2)(c) of the 2005 Act that directions for a s.3(10) hearing ‘as soon as reasonably practicable after it is made’ must be given. The applicant must keep under review the need for a control order and so in paragraph 44 of MB Lord Phillips requires that the court must be enabled to consider whether the continuing decision to keep the order in force is flawed. If the system is working as it should and the relevant hearing takes place while the order is still in being, that can lead to revocation.
7.	This does not and cannot mean that the original decision to impose a control order is flawed simply because at the time the court hears the s.3(10) application the order is shown to be unnecessary. The respondent in this case was released from custody in 2011 having served his sentence for the criminal offences he had committed. It has not been suggested that since then he is suspected of involvement in any terrorism related activity. But it would be absurd if, as one reading of paragraph 46 of MB might indicate, that meant that I had to quash the order. With the greatest of respect to Lord Phillips and the court, I think paragraph 46 is not entirely happily phrased. What in my view in context it must mean is that the court will consider all relevant evidence whether or not available to or known by the applicant. If that evidence shows that the making of the order was flawed because, for example, of reliance on material which is shown to have been unjustified, the court will quash the order. If the evidence shows that at the time the hearing takes place, the order is no longer justified, it should be revoked. In my view, such revocation could have been directed to be back dated, thus preserving for a controlee any rights he might have and, in particular, removing any possibility of prosecution for a breach of the order when it ought no longer to have been in force.
8.	Mr Southey in his skeleton argument sought to rely on what he alleged to have been a breach of duty of the applicant under Section 8 of the 2005 Act. Section 8(2) required the applicant to consult the chief officer of the relevant police force before making a control order about whether there was ‘evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism’. This duty was complied with by consultation with the National Coordinator of Terrorist Investigations who would seek the views of the Chief Officer of Police. But section 8(4) and (5) imposed a continuing obligation on the Chief Officer to keep under review whether there could be such a prosecution and to consult the CPS but only to the extent he considered it appropriate to do so. Albeit the duty under s.8(4) and (5) rested on the Chief Officer of Police not the applicant, as is obvious, the applicant was obliged to pass on any relevant information to enable the Chief Officer to make a meaningful decision whether to consult the CPS. That was made clear by the Court of Appeal in SSHD v. E [2007] 3 WLR 1. In E there was highly relevant material which the Secretary of State failed to pass on to the Chief Officer and which could have meant that a prosecution was possible. That does not apply in this case since there was never any possibility of a successful prosecution other than, as will become apparent when I deal with the facts, when it was suggested that AL had been involved in assisting a friend known as AK to abscond from this country and travel to Pakistan and Afghanistan for terrorism related purposes. AL was arrested but released because there was insufficient evidence to prosecute him. It follows that even if there were a breach by the Chief Officer of his s.8(4) and (5) duty, it could have made no difference in this claim. And the police were involved in the CORG meetings which maintained a review of the need for the order and any obligations in it. Since any remedy in judicial review is discretionary, when it is clear, as it is in this case, that there could never have been any question of prosecuting the respondent (other than in relation to the absconding of AK when the question was considered) any failure to comply with section 8(4) and (5) could not, even if established, lead to any quashing of the order.
9.	Mr Southey argued that the failure to comply with Section 8(4) and (5) meant that material which could have been exculpatory was not provided. There is no evidence to support that submission. There is, while a control order subsists, an obligation on the applicant to keep it under review which involves the identification and consideration of any material which might be exculpatory. That obligation does not extend beyond the existence of the order so as to require ongoing monitoring. But, since the s.3(10) application remains in being, there is an obligation to identify and to have regard to any fresh evidence or material which could be exculpatory. That obligation has, Mr Eicke submitted, been observed in that consideration has been given to whether there is at this late stage anything which ought to be taken into account because it might be favourable to the respondent. The applicant’s approach has been to see whether there are any documents or other material which existed during the subsistence of the control order, having particular regard to the case now put forward by AL. In addition, it is recognised that there is in any event an obligation to disclose any material which could assist AL. I have no reason to doubt that proper regard has been had to the need to seek to identify and so to produce any possibly exculpatory material.
10.	In GG it was argued on his behalf that, since at no time during the currency of the control order was he able to challenge it in a manner which was compatible with Article 6, the order should be quashed. Reliance was placed on the decision of the Court of Appeal in AN, AE and AF v. SSHD [2010] EWCA Civ 869. Since Mr Southey did not pursue this argument, I need say no more than that I dealt with it in paragraph 18 of GG. For the reasons there given, it does not require that the order be quashed because unlawful.
11.	Mr Southey argued that the order engaged EU law because of the obligation in it not to leave the UK. He relied on Article 27 of Council Directive 2004/38/EC which permits the restriction of freedom of movement on grounds of public policy, public security or public health. He underlines the requirement that such restriction must be based exclusively on the personal conduct of the individual concerned and that conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. AL has said that he had no intention of leaving the UK but, apart from that, it is clear that engagement in terrorism related activity falls clearly within the definition in the Directive. These proceedings provide the necessary redress required by Article 31 of the Directive. There is accordingly no merit in this argument.
12.	AL is a UK national now some 42 years old. When the order was made, he and his wife had separated, but his three children were living with him. That changed in January 2007 when the children went to live with his wife. By then there was a fourth child. Since his release from prison he has had two further marriages but two of his children are looked after by his ex wife and two by his sister. He has said in his fourth statement that the control order and the restrictions on his movement because of the daily reporting instructions led to inability to keep in touch with his children. I do not doubt that it caused problems but his imprisonment caused the major difficulties. When asked why he was pursuing these proceedings, he said that his major concern was to clear his name. Mr Southey said that there was a possibility of compensation but recognised that in the circumstances having particular regard to the comparative lightness of the obligations in the order and his imprisonment for criminal offences such compensation, if obtainable, was not likely to be at all high.
13.	The basis for the decision to make the control order was the belief by the applicant that the respondent had been involved in the radicalisation of one I shall continue to refer to as AK since an anonymity order was granted and has not I gather been discharged and that he wished to travel abroad to take part in terrorism related activities. In the first statement in support of the making of the order, it was assessed that he had been heavily involved in the radicalisation of AK. By the time of the hearing before Ouseley J, that had been reduced to an assessment that AL had not been the main influence on AK but had encouraged him and had exercised significant control over him to distance him from his family’s control over him and so assist him to go to Pakistan to engage in terrorism related activities. AK was made subject to a control order at the same time as AL. It was served on him on 3 January 2007 whereupon he left the country and probably went to Pakistan to engage in terrorism related activities.
14.	Considerable weight was attached to allegations made by AK’s mother in two interviews with the police. She alleged that AK had changed since meeting with AL and had cut himself off from his parents. He had said that he was intending to go on a Jamaat with AL. This AL confirmed in his second statement produced during the hearing before Ouseley J. It was to commence in Dewsbury and would he said have been limited to travel within the UK. AL denied that he had ever discussed extremist views with AK or that he had shared such views let alone sought in any way to radicalise him. 
15.	In the two statements which were before Ouseley J, AL had simply denied that he was a jihadist or had ever had any intention of travelling abroad for terrorism related purposes. In the three statements he has made for these proceedings, he has maintained this. He is not and has never been a supporter of extremist Islamist ideologies. He has been a practising Muslim, but has not always followed the tenets such as abstaining from alcohol and now, he said, he has lost his religious beliefs.
16.	It has now been disclosed that two of his associates, Aslam Awan and Abdul Rahman, were, the security services assessed, sent to the UK in order to radicalise and recruit British Muslims to travel to join with Al Qaida in terrorism related activity, possibly ultimately in Afghanistan. Awan has left the UK and there is evidence that he was indeed fighting with extremists. Rahman was involved in assisting AK to leave the country for terrorism related purposes. He was prosecuted, convicted and sentenced to 6 years imprisonment. A fourth man, Murad Iqbal, who had travelled to Saudi Arabia in December 2006 and been served with an exclusion order on 12 January 2007, was said to have been a supporter of Awan and Rahman’s plans to send radicalised individuals abroad for terrorism related purposes and to have been a conduit between this country and Pakistan or Afghanistan. There can be no doubt that Awan and Rahman were extremists and that AK had been radicalised before he left this country.
17.	In his third statement, produced when the above disclosure was made, AL has dealt with his relationship with Rahman and Awan. He says he met Rahman at the local mosque in mid 2005. A statement from Rahman made on 1 February 2007 following his arrest has been produced. It seeks to deny his involvement in terrorism related activity in general and in assisting AK to abscond in particular. He said that AK was only known to him through AL. That is accepted by AL. AL says he met Awan (whom he knew as Aslam) through Rahman when both had shown an interest in getting involved in trading second hand cars, this being AL’s business. He visited Rahman’s address on occasions and, in particular, he accepted that he was there in October 2006 when AK was also there since he was having issues with his parents. It is clear, for reasons that will become apparent, that Awan had left the UK in the autumn of 2006, but AL says he was not aware of this until the police told him in January 2007.
18.	As must be obvious having regard to his conviction, Rahman’s denial of extremist views or assistance in any terrorism related activity was untrue. AL was addicted to drugs and, Mr Southey submitted, a most unreliable recruit. That I doubt. But if, as seems to me to be clearly established, Awan and Rahman were sent to recruit, it would be surprising if they did not at least sound AL out in order to assess whether he did have the necessary extremist views. In his evidence, AL said that he was never aware that Awan, Rahman or AK held extremist views. He had never discussed that issue. That I find incredible in all the circumstances and it obviously taints AL’s evidence. I am afraid I do not accept that Rahman and Awan might not have discussed the issue since they would want to be sure that they could trust AL, particularly having regard to his lifestyle.
19.	That AL was a target of their recruiting drive was supported by a letter found at Rahman’s address when it was searched by the police. This letter was written in Urdu by, as Rahman’s statement confirmed, Awan from Pakistan. He used a code name, which is likely to relate to the area of Pakistan where Awan was at the time, and it is apparent that Urdu is not his first language. It is addressed to “Murad”, likely to be Iqbal. It praises the extremist approach to Islam as practised where the author is and refers to the expectation that, with Allah’s aid, the enemy will be vanquished. There are two passages in the letter which are said by the security services to refer to AL. The first reads:-
“…..the brother Murad was mentioned as well and in the morning at the time of exercise I remember the things brother [said to be AL] said. Once I forgot and mentioned Kung Fu in front of Sheikh, after that he was asking me to do exercise the most”
The second reads:-
“First of all to all the friends [they are then named, each called ‘brother’, five named persons including AK and, one said to be AL] all friends a lot of greetings please give it to them, and if you could would you present them a summary of this letter”.
20.	AL has denied that the person named is him. The name is common and he is not usually known by his friends in that way. Further, he is not a morning person so that references to exercise are not consistent with the person being him. He has some martial arts expertise, but not Kung Fu, which is different. The letter was not found until after the order was made, but the applicant was entitled to rely on it in support of reasonable suspicion. Reliance has been placed on the use of the word ‘brother’ which is said to show that those named were already recruited to the cause. I do not think that ‘brother’ necessarily conveys more than someone who is a fellow Muslim, but the letter does suggest that at the least those named were targeted to be recruited and some may already have been recruited. The applicant was entitled to regard the letter as confirmatory of the case that there was reasonable suspicion that AL was a willing participant in terrorism related activity.
21.	When AL’s former residence was searched by the police in January 2007, the police found two DVDs, one a propaganda video lauding one Ibn Khalteb, leader of the Chechnya Mujahedeen, who was killed some years before 2007. The other was a holiday video taken when AL was in Pakistan in, he thought, 2002 or 2003. There was footage of him with others with a shotgun. There is nothing sinister in the holiday video: possession of arms for security reasons in Pakistan is not uncommon. The other he says he never saw and in any event he did not have a video. Whether or not that is true, I do not place any weight on the possession of either video.
22.	The assertion that AL had been involved in the radicalisation of AK was, as I have said, to a considerable extent based on what AK’s mother had said in two police interviews in October 2006. There was no love lost between AK’s parents and AL since a violent altercation between AK’s father and AL in relation to testing a car. AL says that AK was fed up with the control his parents exercised over him and admits that he assisted AK when he wanted to stay away from home and had arranged with him a Jamaat for some 4 months. He denied that he had been involved in any way in radicalising AK. AK had clearly been targeted by Rahman. He was likely to have been radicalised without any help from AL, but it is not surprising that his parents thought that AL was the bad influence who had in their view changed his approach to his family. While I do not doubt that AL was at the very least sympathetic to AK’s intention to travel for terrorism related activities, I am prepared to accept that the full picture now painted does not support the view that he was involved in radicalisation of AK. To that extent I can apply the somewhat artificial approach following MB.  
23.	I am however, as was Ouseley J, satisfied that AL was not only aware of AK’s extremist views but also of his intention to travel to Pakistan in furtherance of those views. His evidence that he had never been aware of AK’s views nor discussed them I have already rejected. I have no doubt that the applicant was entitled reasonably to suspect that AL had actively encouraged AK in his intention to travel for terrorism related purposes.
24.	The Urdu letter to which I have already referred was supportive of the assessment that AL himself was intending to travel to Pakistan as alleged, if AL was the person referred to in it. That the applicant was entitled so to conclude I have already indicated. Mr Southey has made the point that a mere intention is not sufficient to justify a belief that the individual will engage in terrorism related activity. While that may be so if nothing more than intent is shown, the material available both in open and closed satisfies me that AL was with AK taking steps to further that intent. Certainly the applicant properly had reasonable suspicion that that was the case and the encouragement of AK could also be terrorism related activity. None of the further disclosure and the respondent’s answers to it and evidence given puts in doubt Ouseley J’s decision accepting that the control order was properly imposed at least on the grounds I have specified.
25.	Before Ouseley J, the question of possible revocation due to the respondent’s arrest in July 2007 was an issue. Ouseley J thought that the possibility of bail meant that the order should continue. The respondent told me that he had made full admissions and in due course pleaded guilty to the charges against him. But the evidence before Ouseley J was that he was intending to apply for bail. He has since in a note from his representatives accepted that he made two applications for bail and made no admissions of criminality until he pleaded guilty on 10 December 2007. It is alleged that the allegation, which he did not accept, was originally one of conspiracy to commit aggravated burglary. But his evidence to me was clearly inaccurate.  I doubt that bail was on any view a reasonable prospect and conditions equivalent to those in the order could have been imposed. But apart from that for reasons I have fully dealt with in closed I am satisfied that revocation should have been directed. It follows that the order should not have been renewed in December 2007. But this does not affect the lawfulness of the original imposition of the order and, since there was no appeal against the renewal of the order, I cannot quash that renewal. In any event it makes little difference since the obligations under the order were obviously not in force while AL was in custody. I would only add that it was and remains unfortunate that further information was not obtained about the criminal charges.
26.	There is no doubt that AL complied with the terms of the order and disclosed that AK had contacted him, that being contrary to an obligation in the order. AL’s fifth statement has raised issues which I shall deal with in closed. Suffice to say that the issues raised by AL do not show that the imposition of the order was unlawful. But I do think that, as AL says, the imposition of the order had a profound effect on him. It did not inhibit him from committing serious crimes, but it may well have turned him away from engaging in any terrorism related activity. For reasons fully set out in my closed judgment, I am satisfied that the order should have been revoked and if there had been an appeal against its renewal, I would have quashed that renewal. But, since AL was in prison for his criminal activities, the continued existence of the control order had no effect on him. 
27.	What I have to decide is whether the applicant’s view that there was reasonable suspicion that AL was or had been and would unless subject to control continue to engage in terrorism related activities was flawed. I emphasise that by upholding that view I am not finding that AL was necessarily guilty of any such activity. But for the reasons I have given, which to a considerable extent follow those given by Ouseley J, I am satisfied that the order should not be quashed.