Re AL Saadi
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WILKIE |
| Judgment Date | 21 December 2009 |
| Neutral Citation | [2009] EWHC 3390 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/18/2008 |
| Date | 21 December 2009 |
[2009] EWHC 3390 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005
Before: Mr Justice Wilkie
Case No: PTA/18/2008
Tim Eicke and Paul Greatorex (Instructed by Treasury Solicitor)for the Claimant
Tim Otty QC and John Jones (instructed by Arani & Co) for the Defendant
Charles Cory-Wright QC and Shaheen Rahman as Special Advocates for the Defendant
Hearing dates: 23 Nov – 1 Dec 2009
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
………………………..
MR JUSTICE WILKIE:
This is the section 3(10) hearing in respect of Faraj Faraj Hassan Al Saadi (AS) pursuant to the Prevention of Terrorism Act 2005 (“PTA”). He has been subject to a non derogating control order made, initially, on 3 rd April 2008 and renewed on 31 st March 2009.
The Law
The Legislative Scheme
Section 1(1) of the PTA defines a control order as:
“an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism”
Section 15(1) of the PTA provides that “terrorism” has the same meaning as in the Terrorism Act 2000 (TACT). Section 15(1) of the PTA also defines “the public” as “the public in the whole or part of the United Kingdom or the public in another country or territory or any section of the public”.
The power to make a non derogating control order against an individual is exercisable, pursuant to section 1(2) of the PTA, by the Secretary of State.
Section 2(1) of the PTA provides that the Secretary of State:
“may make a control order against an individual if he
a. has reasonable grounds for suspecting that the individual is or has been involved in terrorism related activity and
b. considers that it is necessary for the purposes connected with protecting members of the public from a risk of terrorism to make a control order imposing obligations on that individual.”
A control order has effect for a 12 month period and may be renewed for successive periods of 12 months. The grounds for renewal are set out in section 2(6) of the PTA and are as follows:
“That the Secretary of State
a. considers that it is necessary for the purposes connected with protecting members of the public from a risk of terrorism for an order imposing obligations on the controlled person to continue in force.
b. considers that the obligations to be imposed by the renewed order are necessary for the purposes connected with preventing or restricting involvement by that person in terrorism related activity.”
Section 1(3) of the PTA empowers the Secretary of State to impose under a control order “any obligations that the Secretary of State…considers necessary for purposes connected with preventing or restricting involvement by that individual in terrorism related activity.”
Section 3 of the PTA sets out the functions of the court in considering the substance of the control order made. Sub-sections (10) and (11) provide:
“…the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed –
a. his decision that the requirements of section 2(1)(a)(b) were satisfied for the making of the order and
b. his decisions on each of the obligations imposed by the order.
(11) in determining –
…b. the matters mentioned in sub-section (10)
The court must apply the principles applicable on an application for judicial review.”
The Court of Appeal has held that a purposive approach to section 3(10) should be applied, requiring the court to consider not merely the initial decision to impose the control order but also whether the continuing decision of the Secretary of State to keep the order in force is flawed (see Home Secretary v MB (2006) EWCA Civ 1140 at paras 41 to 46).
In MB the Court of Appeal distinguished between two elements of the Secretary of State's decision namely:
a. whether there are reasonable grounds for suspecting that the controlled person is or has been involved in terrorism related activity and
b. whether it is necessary for purposes connected with protecting members of the public from a risk of terrorism to make the order.
The court held that the first question was one of objective fact and that the court could not review that aspect of the decision “…without itself deciding whether the facts relied upon by the Secretary of State amounted to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism related activity” (para 60).
However the court also made clear that “the issue that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may involve considering a matrix of alleged facts some of which are clear beyond reasonable doubt, some of which can be established on the balance of probability and some of which are based on no more than circumstances giving rise to suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise differs from that of deciding whether a fact has been established according to a specified standard of proof. (Para 67).
In relation to “necessity” the Court of Appeal recognised that the Secretary of State was better placed than the court to decide the measures necessary to protect the public from the activities of a terrorist suspect and deference should, therefore, be accorded to his views on the second aspect of the decision (see para 64 to 65).
Mr Otty QC, for AS, submits that the relevant principles governing the question of reasonable suspicion may be summarised as follows:
a. Mere suspicion will not suffice. Reasonable suspicion requires something more. It requires that a genuine suspicion be formed and that a reasonable man, having regard to all the circumstances, would regard the grounds as reasonable grounds for suspicion ( M v SSHD 2004 2 AER 863 at 28 and 30, Fox Campbell and Hartley v UK 1990 13 EHRR 157 at 29–36, O'Hara v Chief Constable of RUC at 298A).
b. Reasonable suspicion entails a clear conclusion of suspicion which properly remains only after:
(1) the best available evidence has been considered by the court;
(2) all relevant enquiries have been pursued ( MK v SSHD: SIAC Number 29/2004 (Newman J. at para 6) ;
(3) all innocent explanations have been properly considered (see MK above);
(4) account has been taken of the time under which an individual has been under investigation and the extent and quality of evidence that it has been possible to obtain in that period, the greater the period and the more sparse the evidence the less easy it will be to characterise suspicion as reasonable;
(5) consideration has been given to what facts can be proved: to the criminal standard; on the balance of probabilities; and what are merely suspicions. ( SSHD v MB 2007 QB 415 at para 67). Suspicion layered upon suspicion should not suffice.
c. The ability of the court to make a finding of reasonable suspicion must take into account the inherent probability, or otherwise, of an allegation being well founded. The more grave the allegation the greater the burden on the parties seeking to establish reasonable suspicion.
d. The court must take into account the gravity of the consequence for an individual because the greater the inroad into his freedom the greater the care with which the justification for it must be examined ( SSHD v A 2005 2AC 68 per Lord Rodger at 178).
Background and Chronology
AS was born on 28 November 1980. In his seventh witness statement he says that he left Libya in about October 1997. He went overland to Jordan, having passed through Egypt for a couple of days. He stayed in Jordan for a couple of months with some Libyans whom he met in a mosque. He understood some of those were subsequently deported to Libya, accused of being members of the Libyan Islamic Fighting Group (LIFG), though he did not know that at the time. He found it difficult to settle in Jordan. He wanted to go to Qatar to join his older brother but there was a problem obtaining a visa. He went to Syria for about a week and then to Turkey at the beginning of 1998, travelling with one of the Libyans already mentioned. He stayed with members of the Libyan community in Istanbul until August 1998. His visa had still not come through for Qatar so he was advised by the Libyans to go to Pakistan to study. He arrived in Karachi in August 1998 and went straight to Islamabad. He then went by bus to Peshawar. At that stage he realised that the people he had been with must have been connected with the LIFG. People in Peshawar talked openly about the Gaddafi regime and their opposition to it and about going back and forth to Afghanistan and attending training camps. He says he was never interested in doing this, he wanted to study and his brother always told him never to get mixed up in anything like that.
He lived in Peshawar with Libyans connected to the LIFG for nearly a year, he studied at the mosque and learnt the whole of the Koran. After about a year, the people with whom he had been living started to put pressure on him. He had to join the LIFG or leave. He did not want to joint the LIFG so he left, around the end of 1999.
He stayed in Peshawar and lived with other Libyans who were living there who were ordinary refugees and...
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