Secretary of State for the Home Department v AY
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 19 July 2012 |
| Neutral Citation | [2012] EWHC 2054 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/15/2010 PTA/5/2012 |
| Date | 19 July 2012 |
[2012] EWHC 2054 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Silber
Case No: PTA/15/2010
PTA/16/2011
PTA/5/2012
Matthew Ryder QC and Dan Squires (instructed by Birnberg Peirce) for the Claimant
Jonathan Glasson and Carys Owen (instructed by Treasury Solicitor) for the Defendant
Mohammed Khamisa QC and Melanie Plimmer as the Special Advocate
Hearing dates: 29 and 30 May 2012 and 1 June 2012
Further written submissions served on 9 July 2012
I. Introduction
AY appeals under section 10(1) of the Prevention of Terrorism Act 2005 ("the PTA") against renewals of the Control Order, which was imposed on him on 28 July 2008. When the Terrorism Prevention and Investigation Measures Act 2011 ("the TPIMA") replaced the PTA, Ouseley J gave permission on 17 January 2012 to impose measures under a TPIM notice and an anonymity order was made. On the following day, the Secretary of State signed the TPIM which was duly served on AY on 23 January 2012 when his Control Order was revoked. There is also before the court a review pursuant to section 9 of the TPIMA of AY's TPIM notice.
Although the Control Order has been revoked and the PTA repealed, paragraph 3(1)(c) of Schedule 8 to the TPIMA preserves the duty of the Court to determine appeals continued under section 10(1) of the PTA, but these preserved proceedings "may not have a purpose other than determining whether one or more of the following should be quashed… the renewal of a Control Order [or] …an obligation imposed by a Control Order".
For the purpose of the present proceedings, AY is content to focus on the legality of the TPIM notice rather than upon renewal of the Control Order as it is the TPIM that continues to have an impact on him. Counsel for AY has made it clear that in agreeing to this procedure, AY does not accept that the Control Order was necessary at the time that it was renewed in July 2011 or subsequently.
The background is that AY was born in Birmingham on 5 August 1981 and he is a British National of Pakistani origin. In 2002, he was wanted by the police in relation to a serious offence, which was not terrorism-related. He then left the United Kingdom and spent the following four years living in Pakistan and for a short period in South Africa. While he lived in South Africa, AY assumed the identity of a South African National so as to obtain a South African passport. In June 2006, AY married a British National, and in July 2006, he and his wife travelled to the United Kingdom from South Africa by way of Mauritius with AY travelling under his assumed identity.
In August 2006, AY was arrested in connection with a Plot to mount multiple terrorist attacks and he was remanded in custody. In the same month, he was charged with offences of conspiracy to murder and engaging in conduct preparatory to acts of terrorism. AY and others were duly tried on an indictment containing four counts in a trial which started in April 2008.
All the defendants pleaded not guilty to Count 1 in the indictment, which was a charge of conspiracy to murder and which was described in the particulars as conspiracy to murder by the detonation of improvised explosive devices ("IEDs"), and to Count 1A which was a simple charge of conspiracy to murder. The jury convicted three of the defendants on Count 1A, but they could not agree in respect of the remaining counts. AY was acquitted. There was a retrial of those defendants in respect of whom the jury at the first trial could not agree and, as I will explain, there were guilty verdicts at the second trial. Those found guilty received sentences of life imprisonment with the minimum terms imposed ranging from 18 years to 40 years.
On 8 September 2008, a Control Order was imposed on AY and it was renewed on 27 July 2010 and 21 July 2011. In June 2010, there was a hearing under section 3(10) of the PTA, which constituted a review of the Control Order which had been imposed on AY on 8 September 2008.
In an open judgment handed down on 26 July 2010 with the neutral citation number [2010] EWHC 1860(Admin) ("the 2010 judgment"), Owen J held that:—
"57. Given the extremely serious nature of the Plot and the conclusions to be drawn from the material summarised above as to AY's role within it, I am entirely satisfied that it was necessary to impose the Control Order. I am also satisfied that it remains necessary bearing in mind the material that indicates the organisational role that he played, and the material indicating his potential future engagement in terrorism related activities, see paragraph 58 above".
Later in his judgment Owen J said that:—
"59.. I am satisfied that the Secretary of State was justified in her conclusion that AY is a committed Islamist extremist who would represent a risk to the public if free from the constraints imposed by the Control Order".
As I have explained, on 23 January 2012, the Control Order imposed on AY was revoked and the TPIM notice was served on AY. On 2 April 2012, variations were made to the monitoring measures, and on 30 April 2012, AY appealed against the variation to his TPIM. On 24 May 2012, which was just before the present hearing started, a variation was made to AY's exclusion zone in Birmingham.
AY has appealed against the reporting measures imposed on him and the disclosure provisions pursuant to CPR 80.25 have not taken place, and so it has been agreed that this should be adjourned to another hearing in front of me. This approach accords with the comments of Thomas LJ in BM v Secretary of State [2011] EWCA Civ 366 [30]–[33].
AY also objects to the extent of the exclusion zone. There has been a dispute as to whether I should deal with that matter in this judgment, but I have concluded that I should accede to the submission of AY that I should deal with it together with the reporting measure appeal as both measures relate to the necessity of particular restrictions and so it is appropriate they should be dealt with together at the adjourned hearing.
When I was drafting this judgment, I appreciated that although I had been asked to take account of statements in Hansard, no submissions had been made on the relevance of Pepper v Hart [1993] AC 593 or to a case applying it, namely R v Secretary of State for the Environment ex parte Spath Holme Ltd [2001] 2 AC 349. I therefore decided to ask Counsel for their submissions on this issue, even though the statement relied on by AY was not made during the course of the debates on the Bill, which later became the TPIMA. It then became clear that Mitting J was about to hand down a judgment in Secretary of State for the Home Department v AM [2012] EWHC 1854, which dealt with the so-called "novel issue", which was the same as the one raised in the present case and so at the request of Counsel, I agreed to give them an opportunity to make written representations to me after that judgment was handed down on 6 July 2012. They duly provided helpful submissions, which I will consider in paragraphs 165 to 167 below.
II. The Statutory Regime
(i) The requirements for imposing Control Orders and TPIMs
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 2(2) of the TPIMA defines "terrorism prevention and investigation measures" as requirements, restrictions and other provisions which may be made in relation to an individual by virtue of Schedule 1 of that Act. By virtue of both s.15(1) of the PTA, and s.30 (1) of the TPIMA, "terrorism" has the same meaning as in the Terrorism Act 2000 which provides, at section 1 (insofar as is relevant) that :—
"(1) In this Act 'terrorism' means the use or threat of action where—
(a) the action falls within subsection (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 subsection 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 subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section—
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom."
Section 1(9) of the PTA and section 4(1) of the TPIMA both define "terrorism-related activity" ("TRA") in this way:—
"…involvement in terrorism-related activity is any one or more of the following—
(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which facilitates the...
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