The Commissioner of Police for the Metropolis v Mr Adel Abdel Bary
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice |
| Judgment Date | 25 February 2022 |
| Neutral Citation | [2022] EWHC 405 (QB) |
| Docket Number | Case No: QB-2020-004359 |
| Court | Queen's Bench Division |
[2022] EWHC 405 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Collins Rice
Case No: QB-2020-004359
Mr Tom Little QC (instructed by Metropolitan Police DLS) for the Claimant
Mr Tim James-Matthews (instructed by Birnberg Peirce) for the Defendant
Hearing date: 2 nd February 2022
Approved Judgment
Introduction
The Metropolitan Police Commissioner applies under the Counter-Terrorism Act 2008 (‘the 2008 Act’) for a statutory Notification Order in respect of the Defendant, Mr Bary. Mr Bary challenges the application.
The legislative scheme
Notification Orders were introduced as part of the scheme set out in Part 4 of the 2008 Act. The scheme is explained at section 40:
(1) This Part imposes notification requirements on persons dealt with in respect of certain offences—
(a) sections 41 to 43 specify the offences to which this Part applies;
(b) sections 44 to 46 make provision as to the sentences or orders triggering the notification requirements;
(c) sections 47 to 52 contain the notification requirements; and
(d) section 53 makes provision as to the period for which the requirements apply.
(2) This Part also provides for—
(a) orders applying the notification requirements to persons dealt with outside the United Kingdom for corresponding foreign offences (see section 57 and Schedule 4),
(b) orders imposing restrictions on travel outside the United Kingdom on persons subject to the notification requirements (see section 58 and Schedule 5), and
(c) warrants authorising entry and search of premises notified under this Part or where a person to whom the notification requirements apply resides or may be found.
The next sections set out certain terrorism offences and other offences having a terrorist connection. A person convicted of such an offence in the UK, and receiving a specified sentence, becomes automatically subject to ‘notification requirements’. These require the ‘initial notification’ to the police of a suite of personal information: name(s), address(es), date of birth, contact details, information about identification documents, details of motor vehicles, certain bank and other financial details, and details of any travel plans (including departure from and return to the UK). Notification must be made in person at a local police station and the police may take fingerprints and photographs to verify identity. Later changes to the details must also be notified. Provision is then made for periodic (annual) re-notification. The total duration of the requirements is prescribed by reference to the nature and length of the triggering sentence.
Failure without reasonable excuse to comply with the notification requirements is a criminal offence. The police can seek a magistrate's warrant to enter and search the premises of someone subject to notification requirements if necessary for the purpose of ‘ assessing the risks posed by the person’, using reasonable force if necessary. It is a condition for obtaining a warrant that on at least two occasions a constable has sought entry to the premises to search them for that purpose and has been unable to gain entry. A warrant may authorise multiple, or unlimited, entries.
Section 57 and Schedule 4 make provision for ‘Notification Orders’, applying the notification requirements to persons dealt with outside the UK for a corresponding foreign offence. An application for a Notification Order has to be made by a chief police officer to the High Court. The Schedule sets out what constitutes a ‘corresponding foreign offence’.
By paragraph 3 of Schedule 4, there are three conditions for making a Notification Order: (i) the person has been convicted of a corresponding foreign offence and received a sentence equivalent to a UK triggering sentence (this condition is not met if there was a ‘ flagrant denial of the person's right to a fair trial’); (ii) the sentence was imposed after the commencement of Part 4, or certain other conditions as to the service of the sentence are fulfilled; and (iii) the period for which the notification requirements would apply in respect of the offence has not expired.
By paragraph 6 of Schedule 4, if, on an application for a Notification Order, ‘ it is proved’ that these three conditions are met, ‘ the court must make the order’.
Factual background
Mr Bary is 61. He was born and raised in Egypt. In the 1980s, then a practising lawyer in Cairo, he became active in opposing the government of President Mubarak. He joined Egyptian Islamic Jihad, a group seeking to replace the government with an Islamic state. He was implicated in the assassination of former President Sadat, imprisoned and tortured. He was tried and convicted in absentia by an Egyptian military court and sentenced to death in 1995 in relation to a bomb plot, and again in 1999 for being an EIJ media agent.
Meanwhile, Mr Bary had come to the UK and applied in 1991 for asylum. He was granted refugee status in 1993 and given indefinite leave to remain here in 1997. In 1996, while living in London, he founded the International Office for the Defence of the Egyptian People (IODEP), an organisation with stated aims relating to the promotion of human rights and political change in Egypt.
On 7 th August 1998, a co-ordinated terrorist atrocity was committed in two African capital cities. Vehicle-borne IEDs were detonated at the US embassies in Dar-es-Salaam (Tanzania) and Nairobi (Kenya), killing 265 people, injuring more than 5,000, and causing mass destruction.
Shortly afterwards, Mr Bary and others were arrested in the UK by counter-terrorism officers. They searched the IODEP offices and found two documents: one, dated 4 th August, threatening retaliation against the US for arresting EIJ members, and one, dated 7 th August, claiming responsibility for the US embassy bombings carried out that day. A nine-month investigation by UK authorities into Mr Bary and seven associates concluded in June 1999 by deciding there was insufficient evidence to charge him with any terrorism-related offences under the UK legislation in force at the time.
On 11 th July 1999, Mr Bary was arrested in the UK following a US extradition request in connection with the embassy bombings. He remained in prison in the UK during an unsuccessful appeal process and was extradited to the US on 6 th October 2012, along with three other Egyptian nationals with UK refugee status and IODEP connections: Khalid Al-Fawwaz, Anas Al-Liby and Ibrahim Eidarous (who died before being extradited).
On 19 th September 2014, Mr Bary pleaded guilty in the US to three charges relating to the documents found at the IODEP offices, and conspiracy:
Count 1: conspiring from at least in or about February 1998, up to and including at least in or about July 1999, with at least one other person to make a threat concerning an attempt to be made to kill, injure and intimidate an individual and unlawfully damage and destroy any building, vehicle and other real or personal property by means of an explosive through the use of the mail, telephone, telegraph or other instrument of foreign commerce, in violation of Title 18, United States Code, sections 844(n) and (e)
Count 2: wilfully and knowingly making a threat, in or about August 1998, concerning an attempt to be made to kill, injure and intimidate an individual and unlawfully to damage or destroy a building, vehicle and other real or personal property by means of an explosive through the use of mail, telephone, telegraph or instrument of foreign commerce, in violation of Title 18, United States Code, section 844(e)
Count 3: wilfully and knowingly conspiring from at least in or about 1996, up to and including at least in or about July 1999, to commit a crime against the United States, to wit with others murdering nationals of the United States while such nationals were outside the United States, in violation of Title 18, United States Code, section 371 and 2332(a)(1).
A judge explored the basis of Mr Bary's plea at a hearing. Mr Bary made a statement in his own words accepting he had agreed with others, including Ayman Al-Zawahiri (Osama bin Laden's successor as head of Al-Qaeda), to send the ‘threat fax’ of 4 th August 1998, and that he made calls and sent messages claiming responsibility for the 7 th August atrocities and threatening to commit similar atrocities if demands were not met. He accepted he had conspired with Al Zawahiri and Eidarous to kill Americans, military and civilian, anywhere in the world. He acted as a go-between, passing messages between the media and his co-conspirators, including Osama bin Laden and Ayman Al-Zawahiri. He said he was pleading because he was guilty as charged: he had done all of this knowingly and of his own free will.
He was sentenced to 25 years' imprisonment, the maximum available on these counts. The sentencing judge rejected ‘ a spirited effort to portray Mr Bary as a peaceful man, a man who never personally engaged in violence and who indeed … abhorred violence’ as being inconsistent with his plea. He considered it ‘ enormously generous’ of the US authorities to accept his plea when the indictment contained extensive further counts some of which carried a mandatory life sentence. (The prosecution had accepted that Mr Bary had not personally participated in the embassy bombings themselves; he had pleaded to post-event conduct only.) The judge...
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