Secretary of State for the Home Department v LG and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 30 June 2017 |
| Neutral Citation | [2017] EWHC 1529 (Admin) |
| Docket Number | Case No: PTA/1/2016 PTA/4/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 June 2017 |
[2017] EWHC 1529 (Admin)
Mr Justice Nicol
Case No: PTA/1/2016
PTA/2/2016
PTA/4/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Cathryn McGahey QC, Ben Watson, Andrew DeakinandJames Stansfeld (instructed by Government Legal Department) for the Applicant
Tom Hickman and Jessica Jones (instructed by Birnberg Peirce) for LG
Danny Friedman QC and Steven Powles (instructed by Ahmed and Co) for IM
Hugh Southey QC and Blinne Ní Ghrálaigh (instructed by Ahmed and Co) for JM
Helen Mountfield QC and Shaheen Rahman QC (for LG) and Charles Cory-Wright QC and Martin Goudie QC (for IM and JM) (Special Advocates instructed by The Special Advocates' Support Office)
Hearing dates: 20 th–24 th March, 27 th–31 st March and 3 rd– 7 th April 2017
Approved Judgement (Redacted for Distribution to the Public)
The Terrorism Prevention and Investigation Measures Act 2011 ('TPMIA 2011') introduced Terrorist Prevention and Investigation Measures ('TPIMs'). These are various restrictions and requirements of a kind which are listed in Schedule 1 to TPIMA 2011. The Act has a 'sunset clause' so that the SSHD's TPIM powers will come to an end automatically. Originally, the date was 5 years from Royal Assent (14 th December 2011) – s.21(1), but s.21(2) authorised the SSHD to extend their life for another 5 years and this power was exercised by the Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016 SI 2016 No.1166. Section 2 of the Act authorises the Secretary of State for the Home Department ('SSHD') to issue a notice setting out the particular measures which the SSHD imposes on the individual in question. Before a TPIM can be imposed, five conditions must be met – see TPIMA 2011 s.3. The last condition is that the SSHD obtains the permission of the Court before issuing a TPIM notice. A low threshold is set at that stage: the Court has only to be satisfied that the application is not 'obviously flawed' – see TPIMA 2011 s.6(3). Cranston J. concluded that the SSHD had satisfied this initial test for the three individuals with whom I am concerned and granted her permission to issue the TPIM notices for each of them. By orders of the same day, he required each of them to be anonymised. Hence, they are referred to in these proceedings as LG, IM and JM. They must not be identified in any report of these proceedings.
Although a low threshold is set at the permission stage, the Court is required to conduct a more stringent review subsequently — see TPIMA 2011 s.9. It is the reviews under s.9 which I have been conducting in respect of LG, IM and JM.
The five conditions which must be met before a TPIM can be imposed are referred to as 'Conditions A – E' and they are spelt out in s.6 of TPIMA 2011 which currently says,
'(1) Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity ("the relevant activity").
(2) Condition B is that some or all of the relevant activity is new terrorism-related activity.
(3) Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.
(4) Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual's involvement in terrorism-related activity, for the specified terrorism prevention and investigation measure to be imposed on the individual.
(5) Condition E is that
(a) the Court gives the Secretary of State permission under s.6 or…'
Conditions A, B and D use the expression 'terrorism-related activity' ('TRA'). This term is defined in TPIMA 2011 s.4 as follows,
'(1) For the purposes of this Act, 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 commission, preparation or instigation of such acts, or which is intended to do so;
(c) Conduct which gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so;
(d) Conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within (a);
And for the purposes of this Act it is immaterial whether the acts of terrorism in question are specific acts of terrorism or acts of terrorism in general.
(2) For the purposes of this Act, it is immaterial whether an individual's involvement in terrorism-related activity occurs before or after the coming into force of this Act.'
TPIMA 2011 s.30(1) defines 'terrorism' by reference to the Terrorism Act 2000 ('TA 2000') s.1(1) – (4) which says,
'(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 purposes 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 of TA 2000 has a fifth subsection which says,
'(5) A reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.'
Reference has been made to several proscribed organisations in these proceedings, as I shall explain. However, I am asked to note that TA 2000 s.1(5) is not incorporated into the definition of terrorism for the purposes of the TIPMA 2011 by s.30(1). However, rather confusingly, the term 'act of terrorism' does include anything constituting an action taken for the purposes of terrorism within the meaning of TA 2000 s.1(5) – see TPIMA 2011 s.30(1).
I have said that I have been conducting 'review hearings' for each of the TPIM notices. Shortly after a TPIM notice is served, there must be a directions hearing at which arrangements are to be made for a further hearing in relation to the measures imposed by the notice – see TPIMA 2011 s.8. The function of the Court at such review hearings is dealt with in TPIMA 2011 s.9 which says,
'(1) On a review hearing…the function of the court is to review the decisions of the Secretary of State that the relevant conditions were met and continue to be met.
(2) In doing so, the court must apply the principles applicable on an application for judicial review.
…
(5) The court has the following powers (and only those powers) on a review hearing –
(a) power to quash the TPIM notice;
(b) power to quash measures specified in the TPIM notice;
(c) power to give directions to the Secretary of State for, or in relation to, —
(i) the revocation of the TPIM notice, or
(ii) the variation of measures specified in the TPIM notice.
(6) If the court does not exercise any of its powers under subsection (5), the court must decide that the TPIM notice is to continue in force.
(7) If the court exercises a power under subsection (5)(b) or (c) (ii), the court must decide that the TPIM notice is to continue in force subject to the exercise of that power.
(8) In this section "relevant conditions" means –
(a) condition A;
(b) condition B;
(c) condition C; and
(d) condition D.'
I shall return to the issue of precisely what standard I should apply in carrying out this review since this was a matter of debate between the parties. At this stage, though, I observe that s.9(1) requires me to review the decisions of the Secretary of State that the specified conditions 'were met and continue to be met'. This use of the past and present tense means, for instance in the context of Condition C, that I must review, not only the decision of the Secretary of State that, at the time of the TPIM notice, she reasonably considered that it was necessary for purposes connected with protecting members of the public from a risk of terrorism for a TPIM to be imposed, but also her decision that she reasonably considers that a TPIM continues to be necessary for that purpose at the time of my review. Likewise for the purpose of Condition D, I must review her decision that she reasonably considered each individual measure was necessary for preventing or restricting the individual's involvement in TRA at the time of the TPIM notice and also her decision that she reasonably considers that particular measure for that particular individual, continues to be necessary for those purposes now. It seems to me that Condition D also required...
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