B v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 12 October 2018 |
| Neutral Citation | [2018] EWHC 2651 (Admin) |
| Date | 12 October 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3916/2017 & CO/3906/2017 |
[2018] EWHC 2651 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: CO/3916/2017 & CO/3906/2017
and
Dan Squires QC and Ayesha Christie (instructed by Birnberg Peirce) for the Claimants
Nathalie Lieven QC and David Blundell (instructed by Government Legal Department) for the Defendant
Helen Mountfield QC and Paul Mertens (instructed by Special Advocates Support Office) Special Advocates for B
Angus McCullough QC and Jennifer Carter Manning (instructed by Special Advocates Support Office) Special Advocates for ND
Hearing dates: 17 th, 18 th, 21 st & 24 th May 2018
Judgment Approved
B and ND, the Claimants in this matter, are British Citizens and they were both the holders of British passports. On 24 th May 2017 the Security Minister, acting on behalf of the Secretary of State for the Home Department 1 (‘the SSHD’), exercised the Royal Prerogative to cancel each of their passports. By these proceedings, the Claimants challenge the legality of those decisions. They have permission, granted by Ouseley J. to rely on two of their grounds. Their Claim Forms have been amended with the permission of Supperstone J. to add in each case a third and fourth ground. The Claimants need further permission to advance those additional grounds, but
Supperstone J. also directed that, as far as those grounds were concerned, the present hearing should be treated as a ‘rolled up hearing’ to consider on the same occasion whether permission should be granted and, if it should, whether those additional challenges to the cancellation of the passports assisted the Claimants to establish that the SSHD's decisions were wrong in law. Other grounds, originally advanced, were refused permission by Ouseley J. and have not been renewed. An anonymity order was made by Lang J. in relation to B on 27 th October 2017 and by Ouseley J. on 19 th January 2018 in relation to ND. The two cases have not been consolidated but on 30 th January 2018 Supperstone J. directed that that they be heard togetherIn these proceedings the SSHD wished to rely on closed material and the necessary directions have been given under Justice and Security Act 2013 (‘ JSA 2013’) s.6. That allowed the SSHD to rely, in principle, on closed material. As is required, Special Advocates have been appointed to represent the Claimants' interests in relation to the closed material (Helen Mountfield QC and Paul Mertens for B; Angus McCullough QC and Jennifer Carter Manning for ND). Following the usual practice, the SSHD set out in closed submissions her objections to disclosure of the closed material. These were considered by the Special Advocates. I conducted a closed hearing to deal with the matters which remained in dispute pursuant to JSA 2013s.8. Such hearings have to consider first whether the SSHD had made goodher objection that disclosure of the material in question and any summary or gist of the material would be contrary to the interests of national security. But the SSHD accepts that even if this is established, there is a second issue, namely whether EU law nonetheless requires disclosure of the material or a summary of it – see ZZ (France) v Secretary of State for the Home Department (No. 2) [2014] QB 820. The Claimants argued that this obligation had to be interpreted by reference to (with the consequence that it was enlarged by) AF (No. 3) v Secretary of State for the Home Department [2010] 2 AC 269. The SSHD disputed that AF (No. 3) had this effect, but, without prejudice to that submission, was willing for me to conduct the section 8 review on the interpretation of the disclosure obligation most favourable to the Claimants.
Following this exercise, the SSHD made further disclosures on 20 th April 2018. That in turn led to the service of further evidence by the Claimants and the amendment of the Claim Form to add what in each case are now the 3 rd and 4 th grounds of challenge.
The Factual Background
In April 2017 both B and ND were due to take part in a humanitarian convoy which was destined to provide assistance to those in need in Syria. It comprised about 80–100 vehicles including ambulances containing medical equipment and other humanitarian aid. About 200 people were also in the Convoy. The plan was for those from the U.K. to drive the vehicles to the border of Bulgaria and Turkey. After that, the intentions of the convoy's organisers was that local volunteers would then take over the vehicles and drive them to Syria.
The convoy overall was known as ‘the Unity Convoy’. B and ND were involved through their connections with Anaya Aid, which was one of the charities that had organised the Unity Convoy. ND was the West London organiser for Anaya Aid and in charge of its West London warehouse. He was due to be the leader of a group of 10 vehicles. Bhad provided voluntary assistance for Anaya Aid since the end of 2016 / beginning of 2017 and was to be one of the other drivers on the Unity Convoy.
B was originally from Algeria and (in addition to his British passport) held an Algerian passport. He was married and in April 2017 he and his wife had two children. ND's parents were Moroccan. He himself was born in the UK. In April 2017 he was married and had 6 children aged from a few months to 16 years old.
The convoy reached Dover on 24 th April 2017. A few of those involved in the convoy were there questioned by the Kent police, exercising their powers under the Terrorism Act 2000 (‘TA 2000’) Schedule 7 paragraph 2. Those questioned included B and ND and also the Chief Executive Officer of Anaya Aid, Mohammed Tahir Malik. The Counter-Terrorism and Security Act 2015 (‘CTSA 2015’) Schedule 1 paragraph 2(1) and 2(5) authorises a police officer who has reasonable grounds to suspect that a person intends to leave the UK for the purpose of involvement with terrorist related activity outside the UK to require the person concerned to hand over all travel documents in his or her possession. A ‘travel document’ is defined in paragraph 1(6) &(7) to include a passport, whether issued by the UK or another country.
At the beginning of their interviews by police officers ND was required to hand over his British passport and B was required to hand over his British and Algerian passports. B was then interviewed between 4.09am – 10.04am (5 minutes short of the maximum 6 hour period that he could have been detained for such questioning – see TA 2000 Schedule 7 paragraph 6A). ND was questioned between 2.57am – 6.27am. I will return later to the notes of those interviews which were made by the officers.
CTSA 2015 Schedule 1 paragraph 4(1) requires an officer who has seized a travel document as soon as possible either to return the document or to seek the authorisation for its retention from a senior officer (viz an officer of at least the rank of Superintendent) – see CTSA 2015 Schedule 1 paragraph 4(1). In this case the retention of B's and ND's travel documents was approved by Detective Superintendent Kathryn Barnes on 24 th April 2017. Det. Supt. Barnes is from the Thames Valley Police which, I understand, operates a joint counter-terrorism unit with the Kent Police
Because their passports had been seized, the Claimants could not be part of the Unity Convoy when it (including Anaya Aid's CEO, Mr Tahir) left Dover.
The retentionauthorised by Superintendent Barneshad to be reviewed within 72 hours (see CTSA 2015 Schedule 1 paragraph 6(1)(b)) by an officer of at least Chief Superintendent rank. In the present case that review was carried out by Detective Chief Superintendent Alexis Boon of the Metropolitan Police. The police powers of retention could then continue for 14 days — CTSA 2015 Schedule 1 paragraph 5(2). One of the grounds for retention is that the SSHD is considering whether to cancel the person's passport – CTSA 2015 Schedule 1 paragraph 5(1)(a).
There is power for an officer of at least Superintendent rank to apply for the 14 day retention period to be extended. In these cases such applications were made by Detective Superintendent Crossley of the Metropolitan Police Counter-Terrorism command who swore undated informations in relation to each of the Claimants. The applications were heard at Westminster Magistrates' Court before the Chief Magistrate, Ms Emma Arbuthnott. The Claimants were on notice and were represented at the hearing which took place on 3 rd May 2017. However, part of the hearing took place in their absence. The applications were successful and the Chief Magistrate granted the police a 30 day extension period, which was the maximum allowed under CTSA 2015 Schedule 1 paragraph 8(6).
The Claimants instructed Birnberg Peirce, solicitors (‘Birnbergs’). Birnbergs wrote to the Metropolitan Police on behalf of B on 11 th May 2017 and on behalf of ND on 16 th May 2017. At that stage they had only limited information as to the reasons that the passports had been seized.
i) The standard form notices of travel document retention had said that ‘a summary of reasons for retaining your travel documents’ was enclosed, but, it seems, no such summary was provided.
ii) The Claimants had not been provided with the officers' notes of the interviews, although to some extent the Claimants were able to recall the questions they had been asked and their answers.
iii) They had Detective Superintendent Crossley's statements in support of his applications for an extension of the retention periods. In B's case it was said that his short and non-committal answers coupled with his lack of return tickets that had led to the belief that he was travelling to Syria for the purpose of terrorism related...
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The Queen (on the application of Leonard Gjini) v Secretary of State for the Home Department
...required for such interference. 22 In the subsequent decision of Nicol J in B and ND v. Secretary of State for the Home Department [2018] EWHC 2651 (Admin), the Secretary of State cancelled the passports of the two claimants who were due to take part in a humanitarian convoy destined to pr......