Secretary of State for the Home Department v CD
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 05 November 2012 |
| Neutral Citation | [2012] EWHC 3026 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 November 2012 |
| Docket Number | Case No: PTA/21/2011 |
[2012] EWHC 3026 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: PTA/21/2011
Mr Robert Palmer and Ms Carys Owen (instructed by The Treasury Solicitor) for the Applicant
Mr John Burton QC and Mr Naeem Mian (instructed by Soni & Kaur Solicitors) for the Respondent
Mr Charles Cory-Wright QC and Mr Dominic Lewis (instructed by Special Advocates Support Office as Special Advocates)
Hearing dates: 9 th, 10 th & 11 th October 2012
CD is a UK national born in 1984. On 1 February 2011, a Control Order was served under the Prevention of Terrorism Act 2005, one of the requirements of which was that he be relocated to Leicester from north London. His appeal against the refusal of the Secretary of State for the Home Department to modify that requirement was refused by Simon J in May 2011. The review hearing into the Control Order took place in July 2011 before Owen J who upheld the order and all its obligations. Between 30 June 2011 and 30 September 2011, apart from 4 days on bail, CD was held in HMP Belmarsh on remand awaiting trial for alleged breaches of the Control Order. He was acquitted on two charges, and thirteen, upon which the jury could not agree, were left on the file.
The expiry of the Control Order regime and its replacement by the Terrorism Prevention and Investigation Measures Act 2011, TPIMA, a regime less stringent in the obligations permitted to be imposed, led to permission being granted by me on 19 December 2011 for a TPIM Notice to be served on CD. The Control Order was revoked. CD was returned from Leicester to north London since such a relocation requirement cannot be imposed under a TPIM, albeit not to his home address. This hearing is the review under s9 TPIMA of the justification for the imposition of a TPIMA notice, and of the need for the particular measures it imposes.
The legislative framework
Section 2(1) of the 2011 Act permits the Secretary of State to impose specified measures on an individual if conditions A – E in section 3 are met. Under section 9, the function of the court is to review the decisions of the Secretary of State that the conditions set out in section 3 were met when the order was made and continue to be met; and in doing so it must apply the principles applicable on an application for judicial review. The conditions with which I am concerned are conditions A – D:
"(1) Condition A is that the Secretary of State reasonably believes 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 measures to be imposed on the individual."
For the purpose of this review, "new terrorism-related activity" has the meaning set out in section 3(6)(a):
"If no TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring at any time (whether before or after the coming into force of this Act)."
"Terrorism" has the same meaning as in section 1 of the Terrorism Act 2000 (section 30 of the 2011 Act) and "terrorism-related activity" is any one or more of the acts and conduct set out in section 4 of the 2011 Act.
Paragraph 4 of Schedule 8, read with s3(6), makes it clear that although a new TPIM cannot be imposed after the expiry of a two year TPIM in the absence of terrorist-related activity occurring after it came into force, that is not the effect of the absence of such activity in the two years after the imposition of a Control Order. That is of course not to say that the absence of such activity after the imposition of a Control Order is legally irrelevant to the existence of the statutory conditions in s3. It plainly is relevant, and the more obviously relevant, to the question of whether a TPIM and its obligations are necessary under Conditions C and D. But the weight given to that factor in judging the need for the TPIM or particular obligations depends on the facts of the individual case.
The powers of the Court on a review hearing are set out in s9: to quash the TPIM notice or any measures specified in it, and/or to give directions to the SSHD for the revocation of the notice or the variation of the measures it contains. The application of the principles of judicial review to the decision of the SSHD requires the Court to be satisfied that the SSHD genuinely believed and believes that CD is or has been involved in terrorism-related activity, and it has to be satisfied that there are reasonable grounds for her belief, judged objectively; see SSHD V MB [2006] EWCA Civ 1140 [2006]3 WLR 829, paragraphs 58 and 60. It is likely however that if the judge does not share that belief, the reasonableness of the grounds for the SSHD to hold it will be the more difficult, though not inevitably impossible, to show.
The most notable change in the new legislative regime is the requirement that the SSHD "reasonably believes" that CD is or has been involved in terrorism-related activity whereas, under the PTA 2005, she only had reasonably to suspect him of that. Undoubtedly, it is a higher test: belief is required, and the grounds must reasonably support belief rather than merely suspicion. The difference, applying what Laws LJ said in A and Others v SSHD [2004] EWCA Civ 1123 [2005] 1WLR 414 at paragraph 229, is that "Belief is a state of mind by which the person in question thinks that X is the case. Suspicion is a state of mind by which the person in question thinks that X may be the case". The criminal cases cited by Mr Burton QC for CD, but not really pursued, did not advance the issue, especially in the light of the criticism in R v Forsyth 17 March 1997 CACD of R v Hall [1985] 81 CR. App. R 260, the one case which might have helped him but which is obviously wrong on that point.
There was some discussion over the use which should be made of Owen J's judgment on CD's Control Order. Mr Palmer for the SSHD suggested at one point that it was the starting point but later qualified that; Mr Burton submitted to the contrary, because of the change from requiring suspicion to requiring belief, and the passage of time. He relied on what Silber J said in the TPIM decision in SSHD v AY [2012] EWHC 2054 (Admin), at paragraphs 43–44. Those same factors mean that an earlier Control Order judgment could not be "an automatic building block" for the TPIM judgment. I take that phrase to mean much the same as a starting point, and therefore one from which a different view would only be taken with great care, and which therefore makes the principal task to judge whether later changes alter the earlier judgment. Silber J, like Mitting J in not wholly dissimilar circumstances, treated the earlier decisions as a check and not as a building block. Mr Palmer did not seek to dissuade me from such an approach. I agree that the factors to which Mr Burton points mean I have to form my own view of whether the statutory requirements are met on the tests and evidence now before me. I can then check my own conclusions against Owen J's, remembering the differences in test and time; in so far as Owen J expresses a view on the evidence as to terrorist-related activity and the then risk with which I was minded now to disagree, I should consider it carefully. But that is as far as it seems to me it goes in terms of appraisal of the evidence under Condition A and the need for the TPIM under Condition C and D. However, that is not to say that other aspects of what Owen J said are not wholly in point: for example what he said about sufficiency of disclosure and the effect of the bare denial from CD.
The case for the TPIM: Condition A: terrorism–related activity
Most of the case still draws on the material considered and summarised by Owen J in paragraphs 3 and 4, and 19–30 of his open judgment. I am content to adopt it as my own on that material, rather than fashioning something in my own words to cover the same territory. I must obviously add to it where necessary in the light of the new statements for this TPIM; I denote those parts in the square brackets below, interpolated into Owen J's judgment.
"3. [CD] came to the attention of the Security Service which assesses that he is the leading figure in a network of Islamist extremists based in North London, and that he is involved in planning a terrorist attack with his close associates TM and MS, and possibly others." The second Security Service Statement before me maintained that description while saying as well that CD "has been involved in terrorist-related activity and has been a leading figure within an extremist network…."
[The third Statement of September 2012 assessed that CD remained a leading figure in such a network notwithstanding changes in it to which I shall come].
"4. The open allegations made against CD are in summary:
i) that in 2004 he attended some meetings organised by Muhammed Hussein Sa'id Hamid in London, and at...
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