Secretary of State for the Home Department v JM
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 10 February 2021 |
| Neutral Citation | [2021] EWHC 266 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: PTA/6/2019 & PTA/7/2019 |
| Date | 10 February 2021 |
[2021] EWHC 266 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Farbey
Case No: PTA/6/2019 & PTA/7/2019
&
Ms Cathryn McGahey QC & Mr Steven Gray (instructed by Government Legal Department) for the Applicant
Mr Hugh Southey QC & Mr Richard Thomas (instructed by Ahmed & Co) for the First Respondent
Mr Dan Squires QC & Ms Joanna Buckley (instructed by Birnberg Peirce) for the Second Respondent
Special Advocates for the First Respondent: Mr Ashley Underwood QC & Mr Dominic Lewis (instructed by the Special Advocates' Support Office)
Special Advocates for the Second Respondent: Mr Martin Goudie QC & Ms Rachel Toney (instructed by the Special Advocates' Support Office)
Hearing dates: 30 October 2020 – 10 November 2020
REPORTING RESTRICTIONS APPLY
Introduction
This is my OPEN judgment in which I carry out a statutory review of the terrorism prevention and investigation measures (“TPIM”) imposed in 2019 on each respondent by the Secretary of State for the Home Department under the TPIM Act 2011 (“the 2011 Act”). In accordance with anonymity orders and reporting restrictions read out in court at the commencement of the hearing, the respondents shall be known only as JM and LF. Their cases were listed together because there is some common background: both are said to be members and senior leaders of Al-Muhajiroun (“ALM”). ALM has been a proscribed organisation (albeit under different names) since 25 July 2006.
I heard evidence and submissions in OPEN and CLOSED session over the course of eight days. Owing to the need for social distancing in the Covid-19 pandemic, it was necessary to deploy two courtrooms linked by video as well as additional external video links in the OPEN sessions, reducing to one courtroom in CLOSED sessions. In order to conserve public funds (and to optimise the number of people having to come to court on any one day in the pandemic), I heard as much as was practicable of JM's case before hearing LF's case though there were some days in which part of the time was spent on JM's case and part on LF's case. Given the number of people involved, the logistics were complex. I express my gratitude to counsel, solicitors and court staff whose efforts meant that we completed the case efficiently and within the allocated timeframe.
On behalf of the Secretary of State, Ms Cathryn McGahey QC (with Mr Steven Gray) submitted in both JM's and LF's cases that the imposition of the TPIM and all of the individual obligations were necessary and proportionate for the protection of the public from terrorism-related activity (“TRA”). JM and LF are leadership figures within ALM. On the expiry of previous TPIM imposed in 2016, both JM and LF re-engaged with ALM associates and continued their activities for the benefit of ALM.
On behalf of JM, Mr Hugh Southey QC (with Mr Richard Thomas) challenged the lawfulness of the imposition of the TPIM notice. In the alternative, he submitted that the full gamut of measures was neither necessary nor proportionate: any perceived risk is capable of being managed by more limited measures. His submissions were supported in CLOSED session by Mr Ashley Underwood QC and Mr Dominic Lewis as Special Advocates.
On behalf of LF, Mr Dan Squires QC (with Ms Joanna Buckley) challenged the lawfulness of reporting and appointments measures. His submissions were supported in CLOSED session by Mr Martin Goudie QC and Ms Rachel Toney as Special Advocates.
Both JM and LF attended the hearing on the relevant days. Both made witness statements but neither gave oral evidence. I heard evidence in OPEN and CLOSED from Witness JS on behalf of the Security Service. Witness JS is a member of the Security Service who has since October 2017 worked in the section responsible for investigating threats emanating from individuals and networks inspired by a radical interpretation of Islam.
I heard evidence in OPEN session from Ms Jessica Deacon who is the current Head of the TPIM and Passport Seizure Team in the Office for Security and Counter-Terrorism at the Home Office. Ms McGahey had intended to call her in CLOSED session but Ms Deacon became suddenly and unexpectedly indisposed. Given her indisposition, all questions in CLOSED session were directed to Witness JS. I am satisfied that the Special Advocates put all relevant matters to Witness JS such that it was not necessary to adjourn the hearing for Ms Deacon to be cross-examined; and no adjournment was sought.
The 2016 TPIM
Both JM and LF were subject to previous TPIM from 2016 to 2018 (which I will hereafter call the 2016 TPIM). JM's TPIM was imposed on 20 June 2016 and reviewed by Nicol J in Secretary of State for the Home Department v LG, IM and JM [2017] EWHC 1529 (Admin) handed down on 30 June 2017. He found that the Secretary of State had been right to decide that JM was a senior leader in ALM. He had encouraged and (through the radicalisation of others) facilitated the travel of others to join Islamic State of Iraq and the Levant (ISIL). JM's 2016 TPIM was extended on 13 June 2017 and expired on 19 June 2018.
LF's TPIM was reviewed by Elisabeth Laing J (as she then was) in Secretary of State for the Home Department v LF [2017] EWHC 2685 (Admin) handed down on 30 October 2017. She found that the Secretary of State had been right to decide that LF was a senior leader in ALM, having a leading role in communications and logistics. His talks encouraged others to travel to ISIL-controlled territory and to join ISIL.
LF's 2016 TPIM was extended on 30 October 2017 and expired on 29 October 2018. On 3 June 2018, LF breached his TPIM by failing without reasonable excuse to report by telephone to the electronic monitoring services company (“EMS”). On 4 April 2019, he was convicted of the breach following a Crown Court trial. On 13 May 2019, he was sentenced to 2 years' imprisonment suspended for 2 years. The terms of his sentence included a twelve-hour curfew for 12 months in a specified residence; 150 hours of unpaid work; and attendance for 18 months at an Extremist Risk Guidance and Healthy Identity Intervention programme covering 33 modules. The curfew imposed by the court was subsequently varied so that it was shorter on Tuesdays and Sundays to permit LF to undertake a part-time driving position which he no longer holds.
The 2019 TPIM
By orders dated 4 November 2019, Supperstone J granted the Secretary of State permission to impose new TPIM on JM and LF respectively for a period of one year (which I will hereafter call the 2019 TPIM). He granted permission to the Secretary of State to withhold CLOSED material from JM, LF and their legal representatives where disclosure would be contrary to the public interest. On 5 November 2019, the Secretary of State served notice of the TPIM and a schedule of measures imposed by the notice on JM. She did likewise in relation to LF.
On 16 September 2020, LF was remanded in custody on account of alleged breaches of his TPIM on 15 September 2020. He is due to stand trial on six charges in February 2021. The Secretary of State did not maintain before me that the alleged breaches were relevant to the questions which I must decide. In light of the impending criminal trial, I do not regard it as appropriate to make any findings one way or the other in relation to events that may found the criminal charges, which will be a matter for the jury. I will say no more about that aspect of the evidence.
On 24 September 2020, the Secretary of State revoked LF's TPIM notice under section 13(1) of the 2011 Act. The TPIM was revoked on the ground that the risk which LF posed to the public was mitigated by his being in custody so that the TPIM notice was no longer necessary. When LF is released from custody, the Secretary of State will consider whether his circumstances at that time justify the revival of the TPIM notice under section 13(6). The revocation does not affect my task in the present review in any material way.
By notice dated 23 October 2020 and served on 27 October 2020, the Home Secretary extended JM's TPIM notice for another year, until 4 November 2021.
Legal framework
Section 2(1) of the 2011 Act gives the Secretary of State power to issue a TPIM notice and to impose TPIM on an individual for a second time if five conditions are satisfied. Those five conditions are set out in section 3:
“(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 measures to be imposed on the individual.
(5) Condition E is that—
(a) the court gives the Secretary of State permission under section 6…”
For present purposes, “new terrorism-related activity” in Condition B is defined under section 3(6)(b)...
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