Secretary of State for the Home Department v BM
| Jurisdiction | England & Wales |
| Judge | Mr Justice COLLINS |
| Judgment Date | 27 March 2012 |
| Neutral Citation | [2012] EWHC 714 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/8/2011 |
| Date | 27 March 2012 |
[2012] EWHC 714 (Admin)
IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: PTA/8/2011
PTA/24/2011
Mr Jonathan Hall & Ms Carys Owen (instructed by The Treasury Solicitor) for the Applicant
Mr Timothy Otty Q.C. & Mr Dan Squires (instructed by Birnberg Peirce) for the Respondent
Special Advocates: Mr Mohammed Khamisa Q.C. & Mr Paul Bowen
Hearing dates: 20 – 22, 24 February 2012
On 6 April 2011 BM was served with a Control Order which was made under the Prevention of Terrorism Act 2005 (the 2005 Act). A hearing pursuant to s.3(10) of the 2005 Act was fixed for 20 February 2012. In the meantime, the 2005 Act was repealed by the Terrorism Prevention and Investigation Measures Act 2011 (the 2011 Act). This Act abolished control orders but substituted for them a power to impose Terrorism Prevention and Investigation Measures (TPIM). Schedule 8 to the 2011 Act provides by Paragraph 1 that a control order which is in force immediately before commencement (namely 14 December 2011) shall remain in force for 42 days. A TPIM was imposed on BM on 13 January 2012.
There are accordingly two applications before me. The first relates to the control order and the second to the TPIM. Paragraph 3(2) of Schedule 8 to the 2011 Act provides that proceedings in relation to the control order "may not have a purpose other than determining whether" the order or any of the obligations contained in it should be quashed. The procedural requirements in relation to court proceedings following the imposition of a TPIM are in all material aspects similar to those which applied in relation to a control order. There is a new CPR 80 which deals with those procedural requirements. It includes in 80.25 provisions which were in relation to control orders found in CPR 79.29 dealing with the need for a hearing where the applicant wished to rely on closed material in which the special advocate would argue that further disclosure (whether in detail or by gisting) was needed in order to enable the individual upon whom the TPIM was imposed (I shall refer to such an individual as 'the subject' in this judgment) to have a fair hearing which complied with Article 6 of the ECHR. In addition, it could be argued that disclosure of particular evidence could occur because there would be no danger to national security if it was. A hearing under CPR 79.29 was held before Silber J in November 2011. This resulted in some further disclosure. A further Rule 79.29 hearing (which would have been transposed into a joint Rule 79.29 and 80.25 hearing) was, if required, fixed for 12 February 2012, but was not pursued.
The need to quash the pre-existing control order would obviously exist if any breaches had occurred and prosecution had been or might be instituted. That is not the case here. While if I were to accept the respondent's case it would follow that the control order would be likely to be quashed, the important issue for the respondent is to have the existing TPIM quashed. The court's powers in relation to the TPIM are set out in s.9(5) of the 2011 Act as follows:—
"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 in the TPIM notice;
(c) power to quash directions to the Secretary of State for or in relation to;—
(a) the revocation of the TPIM notice; or
(b) the variation of measures specified in the TPIM notice. "
So far as I am aware, this is the first review hearing that has been carried out under s.9 of the 2011 Act. The hearing before Silber J has sensibly been treated as compliance with CPR 80.25. One relevant distinction between the powers to impose control orders and the powers to impose TPIMs lies in the different standard required to be met. Control orders could be imposed if the Secretary of State had reasonable grounds for suspecting involvement in terrorism related activity (TRA). For TPIMs the Secretary of State must reasonably believe that the individual has been involved in TRA. Reasonable belief is a higher standard than having reasonable grounds for suspicion. However, that difference does not in my view affect the basis for disclosure to provide fairness and compliance with Article 6. Silber J had regard to the need for compliance with Article 6 and decided that the disclosure which, following the hearing before him, was required would be sufficient for the respondent to be able to give instructions to the special advocate to enable a proper case to be put forward on his behalf. But I had, following decisions of the higher courts which although decided in relation to control orders are equally binding in relation to TPIMs, to consider for myself as the hearing progressed whether further disclosure of any sort was needed to enable the respondent to have a fair hearing. Silber J's decisions are not binding on me but, as was accepted by Mr Otty, Q.C., I am entitled to attach weight to them.
TRA has a very wide meaning. It is defined in Section 4 of the 2011 Act as follows:—
"(1) For the purposes of this Act, involvement in TRA 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 assistances to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a) to (c);
and for the purposes of this Act 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 TRA occurs before or after the coming into force of this Act."
'Terrorism' has the same meaning as in sections 1(1) to (4) of the Terrorism Act 2000 (s.30(1) of the 2011 Act). The provisions of section 4(1) of the 2011 Act are identical to those of s.1(9) of the 2005 Act, which defines terrorism in the same way. It is to be noted that terrorism is not limited to activity which takes place in or directly affects the United Kingdom. Activity which is aimed at the lawful governments of and takes place in overseas countries is within the definition. Furthermore, once an individual has involved himself in activities, whether in the United Kingdom or abroad, which establish that he is a terrorist, he remains a terrorist within the meaning of the Terrorism Act 2000 whether or not he has renounced his past activities.
Before dealing with the legal arguments which have been ventilated before me, I should give further details of the history of BM. An anonymity order has been made to protect him and his family. That order was continued and remains in force since I am satisfied that it is needed and neither party submitted that it was not. Thus I will not name some individuals, in particular the respondent's brothers whose activities play an important part in the circumstances of this case.
The respondent is a British national now 39 years old. He is married and has 5 children. He is separated from his wife (they are now divorced) but maintains a good relationship with her. Before being relocated to Bristol in March 2010, he had lived in premises in East London which were divided into separate flats, one being occupied by him, another by his ex-wife and children. He has or had, since two may be dead, three brothers whom I will identify as A, B & C. He is the eldest of the four.
Evidence against the respondent which dealt with his activities before 2007 was given by one known as MJB, an American who was arrested in New York on 4 April 2004 in connection with an investigation into inter alia a terrorist cell based in Crawley known as Operation Crevice which culminated in a trial at the Central Criminal Court presided over by Sir Michael Astill in 2006 and 2007. After his arrest, MJB was interviewed at length by the FBI and eventually admitted his involvement in terrorist activity. He then made a statement in which he identified a number of persons including the respondent who had been involved in TRA with him. It was clear that he hoped by giving the names of other terrorists to gain a reduction in the sentence that would be imposed on him. Thus his statement had to be approached with caution since the more alleged terrorists he could name the more he would be thought to have co-operated so that he could expect greater leniency when a court eventually dealt with him.
On 2 August 2007, the respondent and two of his brothers (A and B) were made the subjects of freezing orders over their assets in accordance with the Terrorism (United Nations Measures) Order 2006. That was at the time believed to provide sufficient control over him and a control order was not considered necessary. Ms A.P., the witness called from the Security Services on behalf of the applicant, did not assert that resource considerations played a part in that decision. The respondent and the others subjected to the same freezing orders applied to the court to set them aside and on 28 April 2008 I quashed the orders. On 20 October 2009 the Court of Appeal reversed my decision but on 27 January 2010 the Supreme Court restored my order.
In April 2009 the respondent's brothers A and B left the United Kingdom and travelled to Pakistan. They went there, it was asserted, to engage in TRA and the respondent was involved in assisting them to leave for that purpose. It was said by their representative in the...
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