Secretary of State for the Home Department v Mahmoud Abu Rideh
| Jurisdiction | England & Wales |
| Judgment Date | 04 April 2007 |
| Neutral Citation | [2007] EWHC 804 (Admin) |
| Docket Number | Case No: PTA 1/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 April 2007 |
[2007] EWHC 804 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Beatson
Case No: PTA 1/2005
Mr Robin Tam Q.C. and Mr Andrew O'Connor ( instructed by Treasury Solicitor ) for the Applicant
Mr Raza Husain and Mr Danny Friedman ( instructed by Messrs. Birnberg Peirce ) for the Respondent Mahmoud Abu Rideh
Mr Nicholas Blake Q.C. and Mr Keiron Beal (instructed by the Special Advocates Support Office) appeared as Special Advocates
Mr Rabinder Singh Q.C. and Mr Hugh Southey (instructed by Messrs. Birnberg Peirce) for the Interested Party J
Hearing dates: 8th to 11th January 2007
BEATSON J :
1-Introduction:
1. The terrorist threat to the United Kingdom since 2001 has led the government and Parliament to conclude that a preventive regime is needed for those suspected of involvement in terrorism but who cannot be prosecuted in the criminal courts. These proceedings concern a control order made by the Applicant, the Home Secretary, pursuant to powers in the Prevention of Terrorism Act 2005 (the “PTA”). It was made on 11 March 2005, served on the following day, and renewed on 12 March 2006. It subjects the Respondent, Mahmoud Abu Rideh, to residence restrictions, a twelve hour curfew, prohibitions on unauthorised visitors to his house or prearranged meetings elsewhere, and other restrictions.
2. The PTA and its provision for control orders that place obligations and restrictions on those suspected of involvement in terrorism replaced the provisions in the Anti-Terrorist Crime and Security Act 2001 (the “2001 Act”) enabling the detention of non-British nationals certified under it. On 17 December 2001 the Respondent was detained under the 2001 Act. His case was one of those considered in A and others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 when the House of Lords held that the provisions of the 2001Act authorising such detention were incompatible with Articles 5 and 14 of the European Convention on Human Rights (“the Convention”). Control orders were also made against nine other persons detained under the 2001 Act. The control orders of eight of them were revoked in August 2005 and they are now either detained pending deportation, on bail pending deportation or have left the country. The orders in respect of the Respondent and E, the other former detainee, were renewed in March 2006. The two cases were originally to be heard sequentially in November 2006. However, the Respondent's case was adjourned to January 2007 1 because of a partial failure by him to comply with an order for the disclosure of his medical notes made by his doctors.
3. E's case, in which the restrictions were, with one exception, identical to those to which the Respondent is subject, was heard first, and judgment has been given: see Secretary of State for the Home Department v E [2007] EWHC 233 (Admin). It was held that, in the light of the Strasbourg jurisprudence and the decision of the Court of Appeal in Secretary of State for the Home Department v JJ and others [2006] 3 WLR 866 (under appeal to the House of Lords), the cumulative effect of the restrictions in E's control order deprived him of his liberty under Article 5 of the Convention. E's control order was quashed under the power contained in section 3(12)(a) of the PTA. Leave to appeal to the Court of Appeal has been granted. The legal issues in this case are very similar to those in E's case. For this reason it is unnecessary fully to repeat here
matters set out in the judgment in that case, in particular the legislative scheme of the PTA ( [2007] EWHC 233 (Admin) at [14] to [48]), the evidence concerning the making of control orders in general and the consideration given in January and March 2005 to the possibility of prosecuting those detained under the 2001 Act who were to have control orders made against them (ibid., at [97] to [124]), and the Strasbourg and domestic authorities on Article 5 of the Convention (ibid., at [193] to [242]).
4. As far as the legislative scheme is concerned it suffices to say that the PTA distinguishes between “derogating” and “non-derogating” control orders. The former impose obligations which are incompatible with the right to liberty under Article 5 of the Convention. They may only be made by the Court, and only if the specified conditions, one of which is that there is a public emergency in respect of which the United Kingdom has made a designated derogation from the whole or a part of Article 5, are satisfied. As there is no such designated derogation from Article 5 at present there is no power to make a derogating order. Non-derogating orders are made by the Home Secretary with the permission of the court (except in cases of urgency) and are subject to the supervision by the court pursuant to section 3 of the PTA. Section 10 of the PTA makes provision for appeals by a controlled person against the renewal, modification, refusal to revoke, and refusal to modify a control order.
5. The control order imposed on the Respondent purports to be a non-derogating order. Section 3(2)(c) of the PTA requires that the substantive hearing at which the court is to supervise a control order is to be “as soon as reasonably practicable after it is made”. It took twenty-two months for the matter to come before the court, so that the proceedings before me are both the supervisory hearing under section 3 of the PTA in respect of the order made in March 2005, and the Respondent's appeal pursuant to section 10 against the renewal of the order in March 2006. The reasons for the delay (set out in paragraphs [5–7] of the judgment in E's case) were the need to await the ruling of the House of Lords in A & others (No. 2) v Secretary of State for the Home Department [2006] 2 AC 221, and problems with the availability of counsel.
6. The hearing also concerned the case of J, the Respondent's wife. She launched judicial review proceedings against the Home Secretary on 10 June 2005 and also applied to be joined as a party to the PTA proceedings concerning the control order. At the outset I gave permission for J to be joined to the PTA proceedings and indicated that, in those circumstances, it was not appropriate to grant permission to her to apply for judicial review. The basis of the court's jurisdiction to hear proceedings brought by a third party such as J is set out in paragraphs [46] to [47] of the judgment in E's case.
2 – The Respondent's history
7. The Respondent was born on 7 November 1971 in the Jarash refugee camp in Jordan and was brought up in Gaza. He married J in Jordan on 13 August 1993. They have five children, aged between 6 and 12 years old. He is a stateless Palestinian. His wife and children have British passports. At some stage the Respondent went to Pakistan and spent some time there. In a statement dated 18 October 2002 made in connection with his appeal to the Special Immigration Appeals Commission (“SIAC”) against certification under the 2001 Act he stated that he and his family came to the United Kingdom from Pakistan where his wife worked as a teacher and he helped refugees in camps along the border of Pakistan and Afghanistan. The evidence before the court was that he claimed asylum on 30 December 1994. In its judgment dismissing his appeal however, SIAC stated that he arrived in the United Kingdom in January 1995 and that when he arrived he had a Jordanian passport. His asylum claim was refused on 19 February 1997 but in November 1998 he was granted indefinite leave to remain in the United Kingdom.
8. In 1999 the Respondent sought professional help from the Traumatic Stress Service at St George's Hospital and was seen by Professor Ian Robbins a consultant clinical psychologist and head of the Traumatic Stress Service. I am at present not concerned with the different diagnoses of his condition by Professor Robbins and psychiatrists and psychologists who have seen the Respondent. I deal with those and with the circumstances in which he was discharged from Broadmoor Special Hospital when considering the evidence: see paragraphs [74] to [76] and [120] to [126] below. For present purposes it suffices to say that the Respondent told Professor Robbins that he felt his problems started when he was about twelve and an Israeli army jeep ran over a young boy in front of him. He also told Professor Robbins that he was imprisoned by the Israelis on many occasions and was tortured while in prison.
9. I have referred to the Respondent's detention on 17 December 2001 under the 2001 Act. He was detained in HMP Belmarsh and while detained his health deteriorated. Between 17 and 21 February 2002 the European Committee on Torture visited him and others detained under the 2001 Act in HMP Belmarsh and found that the psychiatric care provided for them was “organised in a rather haphazard fashion”.
10. On 24 July 2002, on the direction of the Applicant pursuant to sections 48 and 49 of the Mental Health Act 1983, the Respondent was transferred from HMP Belmarsh to Broadmoor Special Hospital. He remained in Broadmoor until 11 March 2005. On 29 October 2003 his appeal against his certification under the 2001 Act was dismissed by SIAC. There were differences of opinion as to whether he was suffering from a mental disease of a nature and degree which made it appropriate for him to be detained for medical treatment but on 9 January 2004 the Mental Health Tribunal found that it was appropriate for him to be detained in Broadmoor.
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