Secretary of State for the Home Department v AH
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 09 May 2008 |
| Neutral Citation | [2008] EWHC 1018 (Admin) |
| Docket Number | Case No: PTA/8/2006 & PTA/6/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 May 2008 |
[2008] EWHC 1018 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE 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/8/2006 & PTA/6/2008
Mr James Eadie QC and Miss Katherine Grange (instructed by The Treasury Solicitor) for the Applicant
Mr Keir Starmer QC and Miss Stephanie Harrison (instructed by Tyndallwoods Solicitors) for Respondent
Mr Andrew Nicol QC and Mr Justin Cole (instructed by The Treasury Solicitor Special Advocate Support Office) as Special Advocates
Hearing dates: 21, 22, 23,24,25 & 29 April 2008
Approved Judgment
Background
AH is an Iraqi national, who first arrived in the United Kingdom on 21 st July 2000 and claimed asylum. His claim was refused on 30 th October 2001, but he was granted four years exceptional leave to remain. He travelled to Iraq in June 2004 and returned to the United Kingdom in September 2004. On 26 th January 2005 he was detained pending deportation to Iraq. He appealed to the Special Immigration Appeals Commission. The Secretary of State withdrew his decision to deport AH on 23 rd November 2005 and he was released from immigration detention. As he left prison, he was arrested under the Terrorism Act 2000 and charged with terrorism offences. He was tried at Woolwich Crown Court in August 2006. On 29 th August 2006, he was acquitted of all charges. On 31 st July 2006, the Secretary of State applied for permission to make a non-derogating Control Order. Permission was granted by Sullivan J on the same date. The order was served on AH on the day of his acquittal. The order was renewed on 27 th July 2007 and modified to correct an error on 31 st July 2007. On 17 th April 2008, the obligations in the Control Order were significantly relaxed. In these proceedings, AH challenges the Secretary of State's decision to make the first Control Order by way of a review under Section 3(10), appeals against the Secretary of State's decision to renew the Control Order under Section 10(1) and appeals against the Secretary of State's refusal to revoke the Control Order on the 26 th September 2007 under Section 10(3)(a). The issue in each case is whether or not the decision of the Secretary of State was flawed: Section 3(10) and (10)(4)(a). The review of and appeal against the making and renewal of the Control Order are not academic: criminal proceedings have been undertaken against AH, for breaches of the order, which will lapse if the orders are quashed; and the continuance of the order in its varied form depends upon the lawfulness of the original and renewed order.
The principal issues
There are four principal issues:
i) Procedural: has AH been afforded at least the minimum requirements of procedural fairness to which he is entitled in these proceedings?
ii) Substantive: is the Secretary of State's decision that AH has been involved in terrorism-related activity flawed?
iii) Article 5: did the order as originally made and renewed deprive AH of his liberty or merely restrict his liberty?
iv) Necessity: is the Secretary of State's decision that the making, renewal and continuance in force of the Control Order is 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
The Secretary of State relies on four principal grounds of suspicion:
i) AH collected and organised the remittance of funds for the insurgency in Iraq
ii) AH used anti-surveillance techniques, such as the use of telephone kiosks to make sensitive calls and erratic driving, to escape surveillance
iii) AH is an associate of BC (identified by name in the Closed Judgement), an Islamist extremist based in the United Kingdom
iv) AH facilitated the travel of Mukhtar Ibrahim Said, Rizwan Majid and Shakeel Ismail to Heathrow, for onward travel to Pakistan, on 11 th December 2004. Their journey was for terrorism-related purposes and AH knew or believed that that was so.
Procedure
Like all, or at least almost all, Control Order cases, this case raises the vexed question of what precisely is required to ensure that the controlled person's right to a fair trial is secured when the Secretary of State relies significantly on closed material. I will not repeat the analysis which I undertook in Secretary of State for the Home Department v AN [2008] EWHC 372 (Admin). I repeat, and intend to apply, the conclusion which I reached in paragraph 9:
“the conclusion which I draw from the four speeches of the majority in MB is that unless, at a minimum, the Special Advocates are able to challenge the Secretary of State's grounds for suspicion on the basis of instructions from the controlled person which directly address their essential features, the controlled person will not receive the fair hearing to which he is entitled except, perhaps, in those cases in which he has no conceivable answer to them”.
Mr Starmer QC, AH's open advocate, accepts that distillation, with one qualification: that the possible exception in cases in which the controlled person has no conceivable answer does not exist. I was not intending in AN to state that I accepted the existence of the exception, merely that it was possible. I have read, and am persuaded by, the Judgement of Stanley Burnton J in Secretary of State for the Home Department v AF (Number 2) [2008] EWHC 689 (Admin), and agree with his conclusion in paragraph 32 that there is no such exception.
Mr Starmer submits that the Secretary of State must prove, on balance of probabilities, the facts upon which she founds her reasonable suspicion. Mr Eadie QC, for the Secretary of State, submits that this is an erroneous test. It is not necessary for me to decide this issue, for reasons which will be apparent. The approach which I have adopted applies the test for which Mr Starmer contends.
Mr Starmer contends that in relation to the first issue (money transfers), AH does not know the case which he has to meet and is deprived of the opportunity of doing so. AH has given evidence that, if he were told the occasions on which he was said to have transferred money, he would, perhaps with the help of the Hawala sender whom he used be able to allay the Secretary of State's suspicion. Mr Eadie contends that the bare statement of the ground of suspicion has, in fact, been sufficient to permit him to advance his case: in part denial, and in part the transfer of funds to his wife, which the Secretary of State acknowledges to have occurred. Nothing has prevented him from obtaining the assistance of the Hawala sender, if he truly wished to do so. After evidence was complete, I expressed the provisional view, that AH had not been told the essential features of this ground and was not in a position to give instructions to the Special Advocates to challenge them; but Mr Eadie's submissions have persuaded me that the issue is more finely balanced than I had thought. Because I have reached firm conclusions on the remaining grounds, it is not necessary for me to determine whether or not the Secretary of State should be permitted to rely on this ground. I have not taken into account the open allegation or the closed material which supports it in reaching the decisions set out below. I do not understand Mr Starmer to suggest that, if I take that course, AH's right to a fair trial of this issue will have been infringed. It is not necessary for me to put the Secretary of State to an election whether to rely on it or not.
On the remaining three grounds, I am satisfied that their essential features have been disclosed to AH and he has had, and has taken, the opportunity to attempt to rebut them in detail. He has done so in his witness statement dated 7 th March 2008 (3/852–878) and in evidence given at the hearing. In one respect (the use of telephone kiosks as a security measure on particular occasions), the evidence which he has given has permitted the Special Advocates to demonstrate that the Security Service's conclusion was erroneous, so that the Secretary of State no longer relies on that as a ground for suspicion. He has had disclosed to him the surveillance logs for 22/23 October 2004 and 11/12 December 2004. That has prompted him to give a detailed account of his activities on each night (3/868/7.14–7.30 and 3/860–863/5–6). He repeated this detailed account in his evidence at the hearing. The fact that he does not know the contents of the closed material has not in any way inhibited him from doing so. He has been told the essential features of the Secretary of State's case about his relationship with BC and the nature and purpose of his activities. He has been able to give a detailed account about it (3/855–860/4) and has repeated it in evidence. Again, the fact that he does not know the contents of the closed material on this issue has not in any way inhibited him from advancing his case about it. The essential features of the trip to Heathrow and its aftermath have been disclosed to him, in the form of surveillance logs. The purpose of the three men travelling to Pakistan and the grounds for suspecting that it was for terrorism-related activity have been disclosed to him in the Metropolitan Police summaries of their interviews of the three men and their record of what they had with them. AH has been able to give a detailed account of the arrangement of the trip to Heathrow, the trip itself and its...
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