TL v Secretary of State for Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3322 (Admin) |
| Docket Number | Case No: PTA/05/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 3322 (Admin)
Mr Justice Chamberlain
Case No: PTA/05/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Watson KC and Steven Gray (instructed by Government Legal Department) for the Respondent/Appellant
Tim Moloney KC and Jude Bunting KC (instructed by Bindmans LLP) for the Applicant/Respondent
Tim Buley KC and Rachel Toney – Special Advocates
Hearing dates: 20, 21 and 27 September 2022
OPEN JUDGMENT
This judgment was handed down remotely at 10.30am on 21 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 11 March 2021, the Secretary of State for the Home Department applied ex parte to this Court, pursuant to s. 6 of the Terrorism Prevention and Investigation Measures Act 2011, for permission to impose Terrorism Prevention and Investigation Measures (“TPIMs”) on the respondent. I gave that permission, ordered that the respondent be anonymised as “TL” and gave directions for subsequent proceedings. The TPIM notice was served on 16 March 2021.
There have been a number of delays, for reasons which it is not necessary to rehearse. The result has been that the review hearing required by s. 9 of the 2011 Act did not take place until after the decision had been taken, on 15 March 2022, to extend the TPIM notice for a further 12 months under s. 5(2) of the 2011 Act. As a result, directions were given for the review hearing to take place simultaneously with TL's appeal, pursuant to s. 16 of the 2011 Act, against the extension decision.
The hearing was due to take place on 25–27 July 2022 but both sides agreed to an adjournment because one of the Secretary of State's key witnesses became unavailable due to the serious illness of a close family member. The hearing was re-arranged for September 2022.
The Secretary of State's OPEN case
The Secretary of State's OPEN case is that TL is an Islamist extremist who has collaborated with Shakil Chapra, a senior leadership figure in Al-Muhajiroun (“ALM”) with a long history of extremist activity, and that TL has engaged in conduct which gives encouragement to the commission, preparation or instigation of acts of terrorism by posting extremist material online and attempting to radicalise other associates and family members. The Secretary of State assesses that TL may aspire to carry out an Islamist extremist attack in the UK and says that the TPIM notice and the measures it contains are and always have been necessary and proportionate to the national security risk which TL poses.
It is not necessary to set out the whole of the OPEN evidence relied upon, but it includes extensive evidence of extremist social media posts, a video assessed to have been made jointly by TL and Chapra, reposts by TL of Chapra's videos and messages sent to family members promoting extremist views.
TL's OPEN grounds for review
TL's case in response is that he was simply exploring what it means to be a good Muslim and did not understand, and sometimes did not read, the material he was sharing online. He did not realise that the people he knew as “brothers from London” were ALM members until told so by the Security Service. TL advanced four OPEN grounds for review, each of which is said to vitiate the decision to impose, maintain and extend the TPIM:
(a) The Secretary of State has failed to have regard to a material consideration in assessing the extent to which conditions A-E in s. 3 of the 2011 Act are met, namely, TL's mental health disorders.
(b) There is no recent OPEN evidence to support the decisions on 16 March 2021 or 15 March 2022 that conditions A-E are met.
(c) Insofar as there is such evidence in CLOSED, TL has still to be given disclosure of it that is sufficient to enable him to answer the case against him.
(d) The measures continue to have a serious deleterious effect on TL's mental health and family relationships. There is no meaningful mechanism to enable him to demonstrate that conditions A-E are no longer met. There are serious inadequacies in the Desistance and Disengagement Programme (“DDP”), with the result that the Secretary of State failed to comply with her duty under s. 11 of the 2011 Act to keep the TPIM notice under review. In the circumstances, the maintenance of the TPIM is disproportionate.
The law
There is no dispute about the overarching legal principles to be applied. Section 2 of the 2011 Act empowers the Secretary of State by a notice to impose specified TPIMs on an individual if conditions A to E in s. 3 are met.
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. Condition B is that some or all of the relevant activity is new terrorism-related activity. 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 TPIMs to be imposed on the individual. 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 TPIMs to be imposed on the individual. Condition E relates to the procedure by which the TPIM notice is served and it is common ground that it is satisfied here.
Where a TPIM notice is the first in force in respect of an individual, the definition of “new terrorism-related activity” in s. 3(6) covers any terrorism-related activity. So, in this case, Condition B is not in issue if Condition A is met.
“Terrorism related activity” is defined in s. 4 to include any one or more of (a) the commission, preparation or instigation of acts of terrorism, (b) conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so, (c) conduct which gives encouragement to the commission, preparation or instigation of acts of terrorism, (d) conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a). “Terrorism” is broadly defined in s. 30 and includes “any or all military attacks by a non-state armed group against any or all state or inter-governmental organisation armed forces in the context of a non-international armed conflict”: R v Gul Mohammed [2013] UKSC 64, [2014] AC 1260.
Section 11 requires the Secretary of State to keep under review whether conditions C and D are met. Section 5 provides that a TPIM notice remains in force for a year but may be extended for a year at a time, but only if conditions A, C and D are met. By s. 16(1)(a), there is a right of appeal against such an extension.
The court's role under s. 9 is to review the decisions of the Secretary of State that the relevant conditions were and continued to be met. In doing so, the court is required to apply the principles applicable in an application for judicial review. It must assess the situation at the date of the hearing as well as when the Secretary of State made her decisions: CF v Secretary of State for the Home Department [2013] EWHC 843 (Admin), [24] and Secretary of State for the Home Department v LG [2017] EWHC 1529 (Admin), [8]–[10] and [34]–[44]. The intensity of review differs according to the condition under review: LG, [43]–[52]. As to condition A, the court considers whether the Secretary of State was satisfied of the relevant matters and also whether the court itself is so satisfied. When considering conditions C and D, however, the court must bear in mind that assessing the proportionality of the measures imposed involves a judgment and on this question the Secretary of State's judgment must be given weight. This is particularly so, given that the judgment is made in the national security context: R (Begum) v Secretary of State for the Home Department [2021] AC 765, [60], [62]. Although Begum concerned SIAC proceedings, the same approach has been applied to the High Court: QX v Secretary of State for the Home Department [2022] EWHC 836 (Admin), [32].
On an appeal under s. 16, the court must also apply the principles applicable on an application for judicial review. The same approach as outlined in the case law on s. 9 applies.
Ground (a)
For TL, Tim Moloney KC argued that an understanding of TL's mental health difficulties was key to the issues to be determined. The expert reports of Dr Picchioni establish that TL suffered from childhood autism and developed a non-organic psychosis, following which he has continued to experience a range of persecutory experiences, some of which should be interpreted as delusions. He suffered from a temporary dissociative state in February 2022 driven by emotional and physiological hyperarousal and post-traumatic stress disorder. He has a mild learning disability with a co-existing recurrent depressive disorder. Dr Lilley's report dated February 2022 contains conclusions broadly congruent with these.
Dr Galappathie interviewed TL in January and February 2022 and observed that he was experiencing symptoms of recurrent distressing memories, flashbacks, feeling tense and jumpy, anxiety, shakes and sweats and that his mood was volatile and he had self-harm and suicidal thoughts. At the time, he considered...
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