Re Au
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 20 January 2009 |
| Neutral Citation | [2009] EWHC 49 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/20/2008 & PTA/47/2008 |
| Date | 20 January 2009 |
[2009] EWHC 49 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION1
MINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION PURSUANT
TO THE PREVENTION OF TERRORISM ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mitting
Case No: PTA/20/2008 & PTA/47/2008
MR ANDREW O'CONNOR and MR RUPERT JONES instructed by THE TREASURY SOLICITOR) for the Appellant
MR MATTHEW RYDER (instructed by BIRNBERG PEIRCE & PARTNERS ) for the Respondent
MR MARTIN CHAMBERLAIN and MISS CATHRYN McGAHEY
(instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE ) as Special Advocates
Hearing dates: 10 th, 11 th,12 th, 15 th and 16 th December 2008
MR JUSTICE MITTING :
Background
AU is a Libyan national who arrived in the United Kingdom on 5 th November 1994, from Saudi Arabia, and immediately claimed asylum. The basis of his claim was that he belonged to an unnamed group whose object was to topple the Libyan regime and replace it with a free Islamic regime. He claimed to have left Libya in 1991, for Egypt, and then Saudi Arabia. He said that he had been to Pakistan in 1992, to take part in the jihad against the Communists in Afghanistan. He had fought with the Mujahadin in Jalalabad: 1/3/145, 160 and 161. He was eventually recognised as a refugee and granted leave to remain on the 3 rd November 1999. In 1995 he married a Libyan born British citizen, who has lived in the United Kingdom since the age of three. They have three children, aged eleven, nine and seven. She is pregnant with their fourth child and due to give birth in early January 2009. On 21 st November 2002 AU was arrested under Section 41 of the Terrorism Act 2000 at Heathrow, while attempting to travel to Iran. On 23 rd November 2002 he was detained under Section 21 of the Anti-Terrorism Crime and Security Act 2001 and recommended for deportation. He appealed to SIAC, who allowed his appeal on 8 th March 2004. The ground upon which the appeal was allowed was that the Commission was not satisfied that there were reasonable grounds to suspect that AU had links to Al-Qaeda (AQ) or had knowingly provided support to extremists who belonged to loosely affiliated AQ networks. The Secretary of State applied for permission to appeal to the Court of Appeal, which was refused on 18 th March 2004. AU was released on that date. On 3 rd October 2005, he was detained under section 3(5) of the Immigration Act 1971, pending deportation to Libya. On 12 th December 2005 he was charged with three terrorism-related offences: (1) conspiracy to provide property for the purposes of terrorism, (2) entering or being concerned in an arrangement to make property available to another, with two other men, contrary to Section 17 of the Terrorism Act 2000 and (3) providing property for the purposes of terrorism contrary to section 15(3) of the same Act. He was detained pending trial. On 11 th June 2007, having sought, and obtained a Goodyear indication from McKay J, he pleaded guilty to the second of the three charges, admitting that he had become concerned in an arrangement as a result of which property was made available and was to be made available to others, knowing or having reasonable grounds to suspect that it would or might be used for the purposes of terrorism between 19 th February (the date when the Terrorism Act 2000 came into force) and the date of his detention, 21 st November 2002. He was sentenced to three years nine months imprisonment. On 27 th October 2007, he was transferred into immigration detention and on 13 th November 2007 released by SIAC on conditional bail. On 3 rd April 2008 the Secretary of State applied for and was granted (by Collins J) permission to make a non-derogating Control Order against AU. It was served on 4 th April 2008 and remains in force. It required him to reside at a flat in Hackney and not at the home of his family in Edgware and to be subject to a sixteen hour curfew and to a boundary which confined him to Hackney. He appealed against the Secretary of State's refusal to modify five obligations imposed by the Control Order under section 10(3) of the Prevention of Terrorism Act 2005. I dismissed his appeal on 31 st July 2008: [2008] EWHC 1895(Admin). On 29 th August 2008 a significant variation to the Control Order was made, requiring him to live at an address in West London and to be subject to a boundary which encompassed much of Ealing. The sixteen hour curfew remains. In these proceedings, AU challenges the Secretary of State's decision to make the Control Order and to maintain it, and in particular four of its obligations, in force, by way of review under section 3(10) of the 2005 Act.
The principal issues
The principal issues arise under five heads:
i) The decision making process: did the Secretary of State properly take into account the criminal proceedings, including the facts upon which they were brought and determined, in making her decision to impose a Control Order on AU?
ii) Procedural: has AU been afforded at least the minimum requirements of procedural fairness to which he is entitled in these proceedings?
iii) Substantive: is the Secretary of State's decision that AU has been involved in terrorism-related activity other than that admitted by him in the criminal proceedings flawed?
iv) Lawfulness: do the obligations imposed by the control order deprive AU of liberty and so fall foul of Article 5 ECHR?
v) Necessity: is the Secretary of State's decision that the making and continuance in force of (i) the control order and (ii) four of its particular obligations, are necessary for purposes connected with protecting members of the public from a risk of terrorism, flawed?
There are subsidiary questions which I will deal with under the appropriate head.
The Secretary of State's case on the substantive issue
The Secretary of State relies on four open grounds of suspicion:
i) AU is, and for many years has been, a senior member of the Libyan Islamic Fighting Group (LIFG)
ii) AU has engaged in fundraising, the transfer of funds and the supply of false documents for terrorism-related purposes
iii) AU has been involved in the travel of individuals overseas to take part in terrorism-related activity
iv) AU re-engaged in extremist and terrorism-related activity between his release from detention in March 2004 until his re-arrest on 3 rd October 2005.
The decision making process
In paragraphs 24 – 64 of his written closing submissions, supplemented by oral submissions, Mr Ryder submits that the Secretary of State's decision making process was so flawed that the Control Order must be quashed under section 3(12)(a) of the 2005 Act. His submissions are superficially complex, but can, I believe, be broken down into two basic propositions: if the Secretary of State relied only on matters which had occurred and were known to state authorities (the police, the prosecuting authorities and the Security Service) when the criminal proceedings against AU concluded on 11 th June 2007, the imposition of a Control Order was, and is, not justifiable; alternatively, if she has taken into account material not then known, its gist has not been disclosed to AU, so that these proceedings are fundamentally unfair. His alternative proposition is, in fact, the, by now, customary Article 6 challenge and I will deal with it under the heading of procedure. The first proposition, advanced, as far as I know, for the first time, raises a question of some importance.
Section 8 of the 2005 Act provides:
“8 Criminal investigations after making of control order
i) This section applies where it appears to the Secretary of State –
(a) that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism; and
(b) that the commission of that offence is being or would fall to be investigated by a police force
ii) Before making, or applying for the making of, a Control Order against the individual, the Secretary of State must consult the Chief Officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism
iii) If a Control Order is made against the individual the Secretary of State must inform the Chief Officer of the police force that the Control Order has been made and that sub-section (4) applies
iv) It shall then be the duty of the Chief Officer to secure that the investigation of the individual's conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the Control Order has effect
v) In carrying out his functions by virtue of this section the Chief Officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under sub-section (4), to the extent that he considers it appropriate to do so.…”
The purpose and importance of these requirements was expounded by Lord Bingham and Baroness Hale in Secretary of State for the Home Department v E [2008] 1AC 499, at paras 14 and 26:
per Lord Bingham
“14 In the submission of E, it is a fundamental premise of the 2005 Act in general, and section 8 in particular, that where there are realistic prospects of prosecuting an individual against whom it is proposed to make a control order, he will indeed be prosecuted. There is strong support for this contention. In Secretary of State for the Home Department v MB [2007] QB 415 para 53, the Court of Appeal (Lord Phill...
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