R (Sher) v Chief Constable of Greater Manchester
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson,Lord Justice Laws |
| Judgment Date | 21 July 2010 |
| Neutral Citation | [2010] EWHC 1859 (Admin) |
| Docket Number | Case No: CO/6623/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 July 2010 |
[2010] EWHC 1859 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Laws
and
Mr Justice Coulson
Case No: CO/6623/2009
Mr Alun Jones QC and Mr Rupert Bowers (instructed by Chambers, Solicitors) for the Claimants
Mr Andrew Edis QC and Ms Anne Whyte QC (instructed by The Solicitors Depts of Greater Manchester and West Yorkshire Police) for the 1 st and 2 nd Defendants
Mr David Perry QC (instructed by The Treasury Solicitor) for the 5 th Defendant
Hearing Date: 20 th May 2010
Mr Justice Coulson:
A. INTRODUCTION
The three claimants are all nationals of Pakistan who came to the UK on student visas. On 8 th April 2009, along with nine others, they were arrested under section 41 of the Terrorism Act 2000 (“the TA 2000”) in various locations in the North West of England. The arrests were authorised by the first defendant (“GMP”). The claimants were then detained without charge by the second defendant (“WYP”). On the same day, search warrants were granted by the fourth defendant (“MMC”) in respect of a number of addresses connected with the claimants. On 10 th April 2009, an application for further detention was granted by the third defendant (“WMC”) and an application to extend that detention was granted by WMC on 15 th April 2009. The claimants were released without charge on 21 st April 2009, and were served with deportation orders. In September 2009, all three claimants voluntarily returned to Pakistan.
Prior to their departure, on 26 th June 2009, the claimants instigated two separate sets of judicial review proceedings. The first, concerned with their challenge to the validity of the deportation orders, forms no part of the present dispute. Here, the claimants seek to challenge the legality of every aspect of their treatment between 8 th and 21 st April last year, from their original arrest and detention, through to the width of the search warrants and the conduct of the searches, and on to the decisions to extend their warrants of detention. The essential complaint that runs through their claims is the same: that they were never told the basis on which they were being detained in sufficient detail in order to allow them properly to challenge their continuing detention without charge. In addition, in connection with the decisions of WMC to extend the warrants on 10 th and 15 th April, the claimants seek relief against the fifth defendant (“SSHD”) on the ground that the relevant parts of the TA 2000 are incompatible with the European Convention on Human Rights.
The remedies sought by the claimants are extensive. They are set out in section 6 of the Claim Form in these terms:
“(1) A declaration that the arrest of all three claimants by the first defendant was unlawful.
(2) A declaration that the detention of all three claimants authorised by the second defendant was unlawful.
(3) A declaration that the detention of all three claimants authorised by the warrants of further detention, and the extension of those warrants, issued by the third defendant was unlawful.
(4) A declaration that the procedure under Schedule 8 of the Terrorism Act 2000 for the hearing of applications for warrants of further detention is incompatible with Article 5(4) of the European Convention on Human Rights.
(5) An order quashing the search warrants at the home addresses of the claimants.
(6) A declaration that the application by the first defendant for the search warrants for the home addresses of the claimants was unlawful and that the issuing of those warrants by the fourth defendant was similarly unlawful.
(7) A declaration that the entry search and seizures at home addresses of the claimants was unlawful.
(8) A mandatory order requiring the return of all items seized in execution of the search warrants forthwith together with any copies howsoever made or held by the defendants and their agents, and that no use be made of any knowledge obtained as a result of any examination or material unlawfully seized.
(9) Any other relief the court considers appropriate.
(10) Damages.
(11) Costs”.
It should be noted that the first declaration sought in sub-paragraph (6) above, namely the declaration in connection with GMP's original application for the search warrants, is no longer pursued.
On 4 th November 2009, Sir Michael Harrison adjourned the application for permission to bring judicial review proceedings to an oral hearing on notice to the defendants. He said that “an oral hearing is necessary, amongst other things, to determine whether judicial review is the appropriate remedy for any, and if so which, of the various issues raised in the claim form”. Accordingly, this court is concerned with a debate about the appropriate forum for the claimants’ claims, as well as whether or not the claimants have an arguable case for judicial review.
I have found it convenient to divide up and deal with the various elements of the claimants’ case in this way:
Original Arrest and Detention
(a) The principal claim against GMP is that the arrest on the 8 th April was unlawful, and the principal claim against WYP is that the decisions to detain them from 8 th April onwards were also unlawful, because the claimants were not told the basis on which they were being arrested and/or detained.
Search Warrants and Seizures
(b) The claim against MMC is that the decision to issue search warrants on 8 th April was unlawful, because the terms of the warrants were too wide.
(c) There is also a claim against GMP that the entry search and seizures at the home addresses of the claimants were unlawful, together with a claim for a mandatory order requiring the return of all retained property.
Further Detention
(d) The only claim against SSHD is that the procedure for hearing applications for warrants of further detention under Schedule 8 of the Act is unfair and incompatible with Article 5 (4) of the European Convention on Human Rights.
(e) The related claim against WMC is that the specific decisions to grant warrants for further detention, made on 10 th and 15 th April 2009 were unlawful, again because of the alleged absence of sufficient information as to why the claimants were being detained.
The structure of this Judgment will be as follows. In Section B below, I outline the statutory framework under the TA 2000 (as amended by the Terrorism Act 2006), and summarise the recent decision of the House of Lords in which those provisions were considered. In Section C, I set out the relevant facts. Thereafter, at Section D, I deal with the claims arising out of the initial arrest and detention of the claimants and, at Section E, I consider the claims arising out of the search warrants and seizures. Then at Section F, I analyse the claim against SSHD in relation to the legality of the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act, and the related claims against WMC concerning the legality of the decisions that were made on 10 th and 15 th April 2009 to extend the claimants’ detention. There is a short summary of my conclusions at Section G below.
B. THE STATUTORY FRAMEWORK
B1. Arrest
The claimants were arrested because they were suspected of being terrorists. Section 40(1) of the TA 2000 defines a terrorist, either as someone who has committed an offence under certain sections of the Act (s.40(1)(a)), or someone who “is or has been concerned in the commission, preparation or instigation of acts of terrorism” (s.40(1)(b)). S.40(1)(b) was the stated ground of arrest and detention in this case. Terrorism itself is defined in section 1of the TA 2000 (amended by the Counter-Terrorism Act 2008) in these terms:
“(1) In this Act ‘terrorism’ means the use or threat of action where—
(a) The action falls within sub-section (2),
(b) The use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) The use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
(2) Action falls within this sub-section if it-
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within sub-section (2) which involves the use of firearms or explosives is terrorism whether or not sub-section (1) (b) is satisfied.”
Section 41sets out the provisions relating to arrest without warrant. The provisions relevant to this case are as follows:
“(1) A constable may arrest without a warrant a person who he reasonably suspects to be a terrorist.
(2) Where a person is arrested under this section the provisions of Schedule 8 (detention: treatment, review and extension) shall apply.
(3) Subject to sub-sections (4) to (7) a person detained under this section shall (unless detained under any other power) be released not later than a period of 48 hours beginning-
(a) with the time of his arrest under...
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