R Irfan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE OWEN |
| Judgment Date | 20 March 2012 |
| Neutral Citation | [2012] EWHC 840 (Admin) |
| Date | 20 March 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4638/2011 |
[2012] EWHC 840 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Owen
CO/4638/2011
Mr Timothy Otty QC and Mr John Jones (instructed by Arani's) appeared on behalf of the Claimant
Mr Jonathan Swift QC and Ms Melanie Cumberland (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This application for judicial review seeks to challenge the notification requirements under part 4 of the Counter-Terrorism Act (the 2008 Act) as being incompatible with Article 8 of the European Convention on Human Rights. Judicial review permission was granted by my Lord, Mr Justice Owen, on consideration of the papers on 27 September 2011.
Part 4 of the 2008 Act came into force on 1 October 2008. Sections 47 to 52 set out the notification requirements. They are well-described at paragraphs 17 to 23 of the claimant's grounds and I replicate that summary here:
"17.A person subject to the notification requirements must notify the police of the information specified in s. 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 7 days in any year (s. 48(3)).
"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 (s. 50(2)). On attending the station, the person is bound to accede to any requests by the police officer or other person to whom notification is made to take his fingerprints or photographs (s. 50(6)).
"19.Notification of the information made in s. 47(2) must be made in accordance with the following timeframe:
a. Initial notification (s. 47) - within the period of three days beginning with the day of sentence;
b. Periodic re-notification (s. 49) - within a year's time of each and every previous notification;
c. Notification of changes (s. 48) - if the person changes his name or home address he must notify the police of this. He must also notify the police upon being released from custody. On any such occasion he must re-notify the police of all the information stated in s. 47(2).
"20.By s. 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 ("the Regulations"). 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 (s. 52(2) of the 2008 Act). 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 seven days in advance of his trip, he must provide it seven 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 (Regulation 4). He must notify the police within three days of his return to the UK (Regulation 5). The method of notification is, again, by attendance in person at a police station (Regulation 6).
"21.It is an imprisonable offence, under s. 54(1) of the 2008 Act, to fail without reasonable excuse to comply with any of the notification requirements (including under the Regulations). The offence carries a maximum of 5 years' imprisonment on conviction upon indictment.
Duration of the requirements.
"22.The periods for which persons are subject to the notification requirements are set out in s. 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, s. 225;
"b. 15 years in the case of a person aged 18 on conviction and sentenced to five years' custody or more, but less than ten 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."
We are told there are presently 30 persons subject to the notification requirements under Part 4. A person is made subject to these requirements by force of the provisions contained in sections 41 to 46. Sections 41 to 43 specify the offences to which Part 4 of the 2008 Act applies, and sections 44 to 46 make provision as to the sentences or orders which trigger the notification requirements.
The offences are primarily terrorism offences, principally under the Terrorism Act 2000 and the Terrorism Act 2006: see s.41. These include engaging in conduct with the intention of assisting in the commission of acts of terrorism, contrary to s.5(1) of the 2006 Act: an offence to which the claimant pleaded guilty, as I shall shortly recount.
S.43 applies part 4 to a person dealt with for an offence before the commencement date (as I have said 1 October 2008) if, inter alia, the offence was on commencement a terrorist offence within s.41 and immediately before commencement the person was imprisoned or detained pursuant to the sentence or order passed or made in respect of the offence.
S.45 provides for the application of the notification requirements to a person dealt with for an offence after the commencement date, where the offence is within s.41 (or s.42) and the person has been sentenced for it to imprisonment or detention for 12 months or more: see s. 45(1)(a)(ii). There are additionally other cases where an indeterminate sentence has been made or certain other orders made.
It is convenient next to set out the familiar terms of Article 8 of the Human Rights Convention:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, protection of health or morals, or for the protection of the rights and freedoms of others."
On 17 January 2008 before Mr Justice Henriques at the Leicester Crown Court the claimant pleaded guilty, as I have said, to an offence of engaging in conduct with the intention of assisting in the commission of acts of terrorism, contrary to s. 5(1) of the Terrorism Act 2006. He was 32 years of age and had no previous convictions. On 18 February 2008 he was sentenced by Mr Justice Henriques to four years' imprisonment. He was released on licence on 4 February 2009. He met the conditions specified in Part 4 of the 2008 Act for the application of the notification requirements to him.
The claimant was a subordinate of a very evil criminal called Parviz Khan, who had plotted to murder a Muslim soldier in the British army. He also, and it is here that we find the claimant's assistance, exported goods from the United Kingdom to Pakistan for use by al-Qaeda against allied forces. As the learned judge passing sentence on 18 February 2008 said, "almost every type of equipment used in Guerrilla warfare" was being exported.
Passing sentence on the claimant, Mr Justice Henriques said this:
"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 traveled to Pakistan. I accept you would not act as you did again. You acted as assistant and confidant of Khan's.
"I accept that whilst you ran errands for him, at 32 years of age with a GVNQ 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."
Mr Justice Henriques proceeded to pass the four year sentence to which I have referred. By virtue of the length of the term, the period for which the notification requirements applied to the claimant is ten years from the date of his release on licence: see s.53(1)(c), 53(4) and 53(7)(b). His licence period expired on 1 February 2011, and the notification requirements will cease to apply on 4 February 2019.
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R (Irfan) v Secretary of State for the Home Department
...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). 3 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......