Secretary of State for the Home Department v AV
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 30 April 2009 |
| Neutral Citation | [2009] EWHC 902 (Admin) |
| Docket Number | Case No: PTA/21/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 April 2009 |
[2009] EWHC 902 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION PURSUANT
Mr Justice Mitting
Case No: PTA/21/2008
LISA GIOVANNETTI AND JONATHAN HALL (instructed by THE TREASURY SOLICITOR) for the Applicant
STEPHANIE HARRISON AND EDWARD GRIEVES (instructed by TYNDALLWOODS SOLICITORS) for the Respondent
MICHAEL BIRNBAUM QC AND MELANIE PLIMMER (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
Hearing dates: 30TH AND 31ST MARCH 2009, 1ST, 2ND AND 3RD APRIL 2009
Background
AV is a Libyan national born on 15 th December 1959. He arrived in the United Kingdom, with his wife and son on 15 th September 2002. He claimed asylum on arrival, which was refused on 13 th November 2002. He appealed successfully to an adjudicator and was recognised as a refugee and granted indefinite leave to remain on 6 th September 2004. He was detained under immigration powers on 3 rd October 2005, pending deportation to Libya on the ground that his presence in the United Kingdom was not conducive to the public good for reasons of national security. He appealed to SIAC. He was released on SIAC bail in December 2005. He was re-arrested on 27 th March 2006 and charged on 30 th March 2006 with two offences of possessing a document containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58(1)(b) of the Terrorism Act 2000. The documents were a file contained on a CD which provided detailed instructions on the preparation of explosives and a handwritten document, of which a reasonable description is a manifesto for the Libyan Islamic Fighting Group. Both documents were recovered from AV's home in Birmingham when it was searched by police on his arrest on 3 rd October 2005. After an unsuccessful appeal against a preliminary ruling by the trial judge, AV pleaded guilty to both offences, on a defined basis part accepted by the prosecution, and was sentenced to a total of four years imprisonment. The custodial element of his term expired on 1 st April 2008. He was readmitted to SIAC bail on a 16-hour curfew. On 4 th April 2008, he was served with a non-derogating control order, made with the permission of Collins J. The order imposed a 16-hour curfew and a boundary which confined his movement, apart from a weekly visit to a mosque, to parts of Acocks Green, Hall Green and Shirley in Birmingham together with a package of restrictions on visitors, communications equipment, bank accounts, travel and employment of a kind normally contained in a stringent control order. He appealed under section 10(3) of the Prevention of Terrorism Act 2005 against the Secretary of State's refusal to modify the curfew and boundary. I dismissed his appeal in judgments handed down on 31 st July 2008. On 16 th October 2008, the curfew was reduced to 12 hours. The control order was renewed on 25th March 2009, but with the curfew reduced to 10 hours and the boundary extended southwards, to include much of Solihull. The review of the Secretary of State's decision to make and maintain the control order was due to commence on 11 th November 2008. On 7 th November 2008, I acceded to AV's application to adjourn the hearing, to permit him, belatedly, to prepare and serve a detailed statement in which he was to explain his activities in the United Kingdom, in response to the Secretary of State's open case. AV prepared a 58 page statement (unsigned in my bundles, but with an origination date of 12 th January 2009) and two further shorter statements, dealing, respectively, with the developing political situation in Libya and the documents seized from his home on 3 rd October 2005.
On 7 th February 2006, AV's name was added to the list of those identified by the United Nations 1263 Committee upon whom member states are obliged to implement an assets freeze and travel ban. He has also been designated in the United Kingdom under the Al Qaeda and Taliban (United Nations Measures) Order 2006.
The Libyan Islamic Fighting Group (LIFG)
Developments of great potential significance have occurred in Libya in March 2009. They have led me to review, and alter, my assessment about the current state and prospects of the LIFG set out in my generic open and closed judgments. I will analyse these developments below under the heading, Necessity.
The principal issues
The principal issues arise under five heads:
i) The decision to make the order: did the inclusion of the statement that AV had been found guilty in absentia by a court in Rabat, Morocco, of involvement in the Casablanca bombings on 16 th May 2003 in the Security Service submission to the Secretary of State make her decision to make the order flawed?
ii) Substance: is the Secretary of State's decision that there are reasonable grounds to suspect that AV has been involved in terrorism-related activity flawed?
iii) Necessity: is the Secretary of State's decision that the making and continuance in force of the control order is necessary for purposes connected with protecting members of the public from the risk of terrorism flawed?
iv) Procedure: has AV been afforded at least the minimum requirements of procedural fairness to which he is entitled in these proceedings?
v) Modification: Is the decision of the Secretary of State that some of the individual obligations imposed continue to be necessary for that purpose flawed?
There are ancillary and subsidiary issues which I will deal with under the appropriate head. I have listed the issues in this order, for reasons which will be apparent.
The decision to make the order
It is common ground that the submission to the Secretary of State should not have included the reference to the Rabat conviction. The reason is that, ever since the decision of the House of Lords in A v Secretary of State for the Home Department (No. 2) [2005] UKHL 71, it has been the policy of the Secretary of State that she will not generally rely on statements reported to have been made by those detained by the authorities of states with a questionable record of treatment of suspects and detainees. The policy is usually expressed in the shorthand formula: the Secretary of State does not generally rely on detainee reporting. Morocco is such a country. Consequently, once the error was discovered, the statement was removed from the Security Service submission, but not before it had been provided to Collins J, when invited to give permission to make the order. The statement was reflected in the order served on AV, which gave as the basis for the decision four propositions, the third of which was that he had “had significant involvement in terrorist attack planning”. That statement, too, was subsequently deleted.
I accept that if the Secretary of State had founded her decision to make the control order upon the Rabat conviction, her decision would have been flawed. I also accept that it is arguable that it would have been flawed if she had placed significant reliance upon it in reaching her decision. I am satisfied that she did not. She can safely be taken to have been aware of her own consistently applied policy on this issue and to have applied it, unless there was good reason to depart from it. If there had been, it would have been set out in the Security Service submission (i.e. the first closed submission) and its annexes. I am satisfied that the Secretary of State could not have been under the misapprehension that she was being invited to depart from her settled policy or did so. I am satisfied that the decision to make the control order was not founded, to any extent that might be significant, upon the Rabat conviction. This challenge to the decision, therefore, fails.
paragraph 5 of the Security Service submission stated, somewhat inaccurately, that AV had been charged on 30 th March 2006 with possession of articles “for use in terrorism”. The language suggested a charge under section 16 of the 2000 Act. In fact he had been charged with and convicted of two offences under section 58(1)(b) of possessing documents of a kind likely to be useful to a person committing or preparing an act of terrorism. Paragraph 5 of the submission could have been better worded, but it did not mislead as to substance. It correctly identified the fact that the articles were extremist materials for display on a computer, including recipes for explosives. What mattered for the purposes of the Secretary of State's decision was the fact that AV had been charged with possession of such materials. Miss Harrison submits that the submission was also significantly incomplete in that it did not refer to the basis upon which AV had pleaded guilty to the two offences or the sentencing remarks of Mackay J. I agree that, where readily available, the observations of a judge passing sentence for a terrorism-related offence which the Secretary of State is invited to take in to account when reaching her decision, should be at least summarised in the Security Service submission. But they did not, in this case (and, I anticipate, would not in most cases) fall into the category of documents identified by Sedley LJ in paragraph 62 of R (National Association of Health Stores and Anr) v Department of Health [2005] EWCA Civ 154: “A minister who reserves a decision to himself…must know or be told enough to ensure that nothing that it is necessary, because legally relevant, for him to...
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