R (Irfan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Munby,Lord Justice Tomlinson |
| Judgment Date | 14 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1471 |
| Date | 14 November 2012 |
| Docket Number | Case No: T3/2012/0818 |
| Court | Court of Appeal (Civil Division) |
[2012] EWCA Civ 1471
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
DIVISIONAL COURT, Laws LJ and Owen J
Ref: CO/4638/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Munby
and
Lord Justice Tomlinson
Case No: T3/2012/0818
Mr Tim Otty QC and Mr John Jones (instructed by Arani Solicitors) for the Appellant
Mr Jonathan Swift QC and Ms Melanie Cumberland (instructed by Treasury Solicitors) for the Respondent
Hearing date : 23 October 2012
On 17 January 2008 Mohamed Irfan (the appellant) pleaded guilty in the Crown Court at Leicester to an offence of engaging in conduct with the intention of assisting in the commission of acts of terrorism, contrary to section 5(1) of the Terrorism Act 2006. He was sentenced to four years' imprisonment. He had spent a significant amount of time on remand which led to his being released on licence on 4 February 2009. The offence to which he had pleaded guilty was a relevant terrorism offence for the purposes of Part 4 of the Counter-Terrorism Act 2008 (the 2008 Act). As a result, upon release he became subject to the notification requirements set out in sections 47–52 of that Act. For a person sentenced to less than five years' imprisonment, such notification requirements endure for 10 years following release. During the 10 year period, a person in the position of the appellant has no right to apply for a review of the need for the notification requirements.
In F and Thompson v Secretary of State for Justice [2011] 1 AC 331 the Supreme Court held that similar notification requirements in relation to convicted sex offenders pursuant to the Sexual Offences Act 2003 which would endure for the rest of a person's life without a right to apply for a review were incompatible with Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The issue on the present appeal is whether such incompatibility also infects the 10 year notification requirement under the 2008 Act. On 20 March 2012 the Divisional Court found no such incompatibility or breach of the appellant's Article 8 rights: [2012] EWHC 840 (Admin).
As nothing turns on the precise wording of sections 47–52 of the 2008 Act, I shall adopt the summary used by Laws LJ in the Divisional Court which was in turn derived from the appellant's grounds for judicial review:
"17. A person subject to the notification requirements must notify the police of the information specified in section 47(2), including his date of birth, national insurance number, home address and any other address where he regularly stays, and any information prescribed by regulations made by the Secretary of State. The person must also notify the police of any other address not previously notified where he stays for a total of seven days in any year…
18. The Act requires that notification be made by attendance in person at a local police station and orally notifying a police officer or other person authorised to take notifications…On attending the station, the person is bound to accede to any request by the police officer or other person to whom notification is made to take his fingerprints or photographs…
19. Notification of the information made in section 47(2) must be made in accordance with the following time frame:
(a) initial notification—with the period of three days beginning with the day on which the person is dealt with in respect of the offence in question [but disregarding time spent serving his sentence];
(b) periodic renotification—within a year's time of each and every previous notification;
(c) notification of changes—if the person changes his name or home address he must notify the police of this. He must also notify the police on being released from custody. On any such occasion he must renotify the police of all the information stated in section 47(2).
20. By section 52, the Secretary of State is empowered to make regulations requiring a person subject to the notification requirements who leaves the United Kingdom to notify the police of their departure, and of any subsequent return. The relevant regulations are the Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009…They apply in respect of any proposed absence from the country lasting three or more days. The person must disclose the intended date of departure, destination and point of arrival…Further, regulation 3 requires him to disclose, so far as he holds it, the following information: point of arrival in each successive country he intends to travel to; name of carriers he intends to use to leave the UK and to travel between countries; address for first night outside the UK; and intended date and point of arrival of return to the UK. Where the person knows the information more than 7 days in advance of his trip, he must provide it 7 days in advance unless he has a reasonable excuse for not doing so. Otherwise it must be provided no later than 24 hours prior to departure…He must notify the police within three days of his return to the UK. The method of notification is, again, by attendance in person at a police station.…
21. It is an imprisonable offence…to fail without reasonable excuse to comply with any of the notification requirements, (including under the Regulations). The offence carries a maximum of five years' imprisonment on conviction upon indictment.
22. The period for which persons are subject to the notification requirements are set out in section 53 and are as follows:
(a) 30 years in the case of a person aged 18 on conviction and sentenced to 10 years custody or more, or imprisonment/detention for public protection under the Criminal Justice Act 2003, section 225;
(b) 15 years in the case of a person aged 18 on conviction and sentenced to 5 years custody or more, but less than 10 years;
(c) 10 years in any other case.
There is no provision for review of the continuing necessity for the notification requirements, or for them to be discontinued early. They apply automatically to any applicable offender and continue in all cases until the end of the prescribed period."
Sections 41–43 certify the offences to which Part 4 of the 2008 Act applies. They are mainly offences under the Terrorism Act 2000 and the Terrorism Act 2006. They include engaging in conduct with the intention of assisting in the commission of acts of terrorism, contrary to section 5(1) of the 2006 Act. This is the offence to which the appellant pleaded guilty.
The appellant's offence
At the time of his appearance in the Crown Court, the appellant was 32 years of age and had no previous convictions. His conviction arose out of his association with a major terrorist, Parviz Khan. Khan had plotted to murder a Muslim soldier in the British Army, although it is not suggested that the appellant was involved in that. The appellant assisted Khan in the export of goods from the United Kingdom to Pakistan for use by Al-Qaeda against allied forces. According to Henriques J, the sentencing judge, the goods comprised "almost every type of equipment used in guerrilla warfare". In passing sentence, Henriques J said:
"In April of 2006 you were heard on the probe describing electrical goods. You were seen to be carrying goods. You assisted Khan in his shopping. You accompanied Khan to the airport. It is clear to me that you and Khan had few, if any, secrets from one another. He confided in you. You gave him advice on goods. You went shopping together. You are described by your own counsel as the camp follower of a fanatic. You did, however, approve of his views. Extremist literature was found at your house. I conclude that…you would not have become involved in terrorist activity but for Khan's drive and overbearance…I accept you never travelled to Pakistan. I accept that you would not act as you did again. You acted as assistant and confidante of Khan.
I accept that whilst you ran errands for him, at 32 years of age with a GNVQ to your credit, it is difficult to describe you merely as an errand boy. But Khan's personality was clearly stronger than your own. You were doubtless led into criminality by him as were all your co-defendants."
I infer that the four year sentence embraced a discount of two years in relation to the guilty plea.
Discussion
As I have related, the notification provisions of Part 4 of the 2008 Act closely resemble those of the Sex Offenders Act. The principal differences concern the subject-matter (terrorism as opposed to sexual offences) and the duration of the requirements (the periods prescribed by the 2008 Act are all of fixed duration whereas, for persons sentenced to imprisonment or detention for 30 months or more in respect of prescribed sexual offences, the requirements imposed by the Sex Offenders Act were for an indefinite period, with no right to a review). The first issue in the present case is whether the ECHR...
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