Secretary of State for the Home Department v AT; Same v AW
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 20 March 2009 |
| Neutral Citation | [2009] EWHC 512 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/19/2008, PTA/22/2008, PTA/32/2008, PTA/33/2008 |
| Date | 20 March 2009 |
[2009] EWHC 512 (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/19/2008, PTA/22/2008, PTA/32/2008, PTA/33/2008
MR ROBIN TAM QC & MR ALAN PAYNE (instructed by THE TREASURY SOLICITOR) for the Applicant
AT
(1) MR TIMOTHY OWEN QC & MR EDWARD GRIEVES (instructed by TRP SOLICITORS) for the Respondent
MISS JUDITH FARBEY & MISS SHAHEEN RAHMAN (instructed by THE TREASURY SOLICITOR SPECIAL
ADVOCATE SUPPORT OFFICE) as Special Advocates
AW
(2) MR TIMOTHY OWEN QC & MR HUGH SOUTHEY (instructed by TRP SOLICITORS) for the Respondent
MR MARTIN CHAMBERLAIN & MISS CATHRYN McGAHEY (instructed by THE TREASURY SOLICITOR SPECIAL ADVOCATE SUPPORT OFFICE) as Special Advocates
Hearing dates: 10 th, 11 th, 12 th, 13 th,16 th, 17 th, 18 th & 19 th February 2009
MR JUSTICE MITTING:
Background
With the consent of all parties, I have heard the cases of AT and AW together. A non-derogating control order was served on each of them on 4 th April 2008. This is the review hearing under section 3(10) Prevention of Terrorism Act 2005. Each also appeals against the Secretary of State's refusal to modify certain of the obligations imposed by the order if I determine that it should, in principle, be upheld. Because there is a complete overlap between the appeals and my obligation to scrutinise the individual obligations against which the appeals are brought, under section 3(10), it is unnecessary to give separate consideration to the appeals. The issue in each case is whether or not the decision of the Secretary of State to make, and maintain in force, the control order and its individual obligations is flawed: section 3(10)(b). In his opening questions to the Security Service witness, ZD, Mr Owen QC suggested that there were no relevant differences between the two cases. For reasons which I will explain in the open and closed judgments, I do not accept that proposition. I have given separate consideration to each and reach conclusions by reference to the particular considerations which arise in each case.
AT
AT is a Libyan national, born on 7 th March 1963. He arrived in the United Kingdom, from Iran, in July 2002 with his wife and three children. He claimed asylum on arrival, which was refused in March 2003. He appealed successfully to an adjudicator. There is an immaterial difference between him and the Secretary of State about whether or not he was thereafter granted indefinite leave to remain. He has lived in the United Kingdom ever since. On 8 th January 2004 he was arrested at his home at 20 F Road, Birmingham on counterfeiting and forgery charges. He pleaded guilty on arraignment at Birmingham Crown Court and on 12 th May 2004 was sentenced to 3 1/2 years imprisonment. He was released on licence and on home detention curfew on 1 st July 2005, to the address to which his family had moved, 156 SB Road, Birmingham. On 3 rd October 2005, he was detained under immigration powers pending deportation to Libya on the ground that this presence in the United Kingdom was not conducive to the public good for reasons of national security. In December 2005, he was re-arrested and charged with conspiring with AU and AW to provide money and other property for the purposes of terrorism. He was arraigned on an indictment containing three counts and on 11 th June 2007, following a Goodyear, hearing pleaded guilty to a count of entering into or being concerned with an arrangement to make property available to another contrary to section 17 of the Terrorism Act 2000. He was sentenced to 22 months imprisonment, a sentence which resulted in his immediate discharge from criminal custody. He was re-detained under immigration powers but released on SIAC bail in August 2007. (By then, SIAC had determined in the lead cases of AS and DD that although they posed a risk to national security, it was not safe to return them to Libya. Consequently, all Libyan appellants were admitted to SIAC bail.) On 3 rd April 2008, Collins J gave the Secretary of State permission to make a non-derogating Control Order, in anticipation of the dismissal of the Secretary of State's appeal in AS and DD by the Court of Appeal.
AW
AW is a Libyan national born on 4 th April 1971. He arrived in the United Kingdom on 16 th October 2002 and claimed asylum on 25 th October 2002 or 4th November 2002 (it matters not which). His claim to asylum has never been determined. He is married, with five children, the youngest of whom is now aged 8 months. On 8 th January 2004, he was arrested at his then home, 16 KL Road, Birmingham, for offences of counterfeiting and forgery. He, too, pleaded guilty on arraignment and received the same sentence as AT: three and a half years imprisonment. He was released on licence on 21 st July 2005, but, like AT, was arrested and charged with the same conspiracy offence in December 2005. He pleaded guilty to the same count as AT and was also sentenced on 11 th June 2007 to 22 months imprisonment. He was released on SIAC bail on 2 nd July 2007 to his current house in Birmingham, a house which he shares with his wife and five children. On 3 rd April 2008, Collins J gave permission to the Secretary of State to make a non-derogating Control Order.
The Libyan Islamic Fighting Group (LIFG)
The LIFG was proscribed on 14 th October 2005. My findings about its recent activities and current state are set out in my generic open and closed judgments. Nothing that I have heard or read in these cases has caused me to make any material change in my assessment of those matters. AT and AW admit that they were members of the LIFG and remained so after their arrival in the United Kingdom. Each claims to have ceased to be members. The Secretary of State does not allege in her open case that either has committed an offence under section 11 of the Terrorism Act 2000 (under which it is an offence to belong or profess to belong to a proscribed organisation, unless the member became or professed to be a member before proscription and has not taken part in the activities of the proscribed organisation while proscribed).
The principal issues
The principal issues arise under four heads:
i) The decision to make the order:
a) did the material provided to the Secretary of State adequately set out the matters or considerations which might affect her decision to make, or not to make, the order which she made?
b) if not, was her decision flawed?
c) if so, should it be quashed?
ii) Procedure: have AT and AW been afforded at least the minimum requirements of procedural fairness to which they are entitled in these proceedings?
iii) Necessity: is the Secretary of State's decision that the making and continuance in force of the control orders is necessary for purposes connected with protecting members of the public from a risk of terrorism, flawed?
iv) Modification: is the decision of the Secretary of State that the obligations challenged continue to be necessary for that purpose, flawed?
There are ancillary and subsidiary issues which I will deal with under the appropriate head. There is no challenge to the Secretary of State's determination that she had and has reasonable grounds for suspecting both AT and AW to have been involved in terrorism related activity: it is established by their conviction of an offence contrary to section 17 of the Terrorism Act 2000.
The Secretary of State's case on the substantive issue
At the start of open closing submissions and at my invitation, Mr Tam QC encapsulated the Secretary of State's case against AT and AW in three propositions:
i) within and associated with the LIFG are people who may wish to continue the armed struggle or jihad in Libya and elsewhere;
ii) as their activities in and before January 2004 demonstrate, AT and AW have the skills, knowledge and contacts which, if put at the service of such people, would be of assistance to them;
iii) neither AT nor AW have demonstrated that they are not willing to do so.
(I have re-phrased and simplified Mr Tam's exact words in the interests of clarity. I do not believe that I have altered or misunderstood their sense).
AT
The Secretary of State relies on five open grounds:
i) AT was and is a significant and influential member of the LIFG;
ii) AT has supported terrorist networks by providing a variety of false documentation including passports and identity documents;
iii) AT has supported LIFG activities by the transfer of funds;
iv) AT espouses violent Islamist views, as is demonstrated by the material seized at his home in October 2005;
v) the three propositions summarised above.
AW
The Secretary of State relies on four open grounds:
i) AW was and is a prominent member of the LIFG;
ii) AW was and is a facilitator for the LIFG, specializing in the production and provision of false documents to overseas LIFG members;
iii) AW was and is a facilitator for the LIFG specializing in the provision of funds to overseas LIFG members;
iv) the three propositions summarised above.
The decision to make the order – AW
The information provided to the Secretary of State upon which she made her decision to make the control order was contained in the un-amended first closed statement and its annexes, as is made clear by its title: “First Security Service submission to the Home Secretary in support of the control order”. It is replicated, with the closed...
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