Terrorism

The administrative court, in its review under section 9 of the Terrorism Prevention and Investigation Measures Act 2011, varied the religious advice association measures and reporting measures. With those exceptions, the Secretary of State had been entitled and right to conclude that the necessary conditions for terrorist prevention and investigation measures issued for the respondents had been met and continued to be met.

The applicant Secretary of State was granted permission to issue terrorist prevention and investigation measures (TPIMs) for the respondents (for the details of the measures, see [32] of the judgment). That was on the basis of her case that the respondents were members of, and were or had been, senior leaders of an organisation (ALM), which aimed for the establishment of an Islamic Caliphate ruled by Sharia law. The present proceedings concerned the review of the TPIMs, under section 9 of the Terrorism Prevention and Investigation Measures Act 2011, which required a review of the Secretary of State’s decisions that the conditions specified in s 6 of the Act were and continued to be met.

The issues for determination were: (i) whether the TPIMs were unlawful because they had been intended to achieve the improper purpose of deterring other individuals from talking over their roles as senior figures within ALM and, thereby, further weakening the organisation; (ii) whether the conditions A, C and D under section 6 of the Act had been met when the TPIM against LG had been imposed and continued to be met; (iii) whether the conditions A, C and D under section 6 of the Act had been met when the TPIM against IM had been imposed and continued to be met; and (iv) whether the conditions A, C and D under section 6 of the Act had been met when the TPIM against JM had been imposed and continued to be met.

The court ruled:

(1) The TPIMs had not been imposed for an improper purpose. It would not be permissible to impose a TPIM to encourage others where there was no connection between the risk of the individual respondent’s engagement with terrorism-related activity (TRA) and the engagement of others in TRA. Accordingly, the general deterrent effect on other members of ALM from stepping up the mark would not be sufficient on its own. However, that model did not represent the facts of any of the present cases. The risk of the respondents engaging in TRA in the future was, in part at least, connected with the continued existence of ALM. If the organisation withered, that would have a bearing on the risk that the individual respondents would engage in TRA and terrorism in the future (see [71], [73] of the judgment).

Secretary of State for the Home Department v MB [2008] 1 All ER 657 applied.

(2) On the basis of all the open evidence, the Secretary of State had clearly been entitled and right to conclude that condition A had been satisfied as far as LG had been concerned, namely, that LG was or had been involved in TRA. That conclusion was fortified by the closed evidence. Further, the Secretary of State had been entitled to come to the reasonable conclusion that condition C had been satisfied at the time the TPIM had been imposed and had been entitled to decide that condition C continued to be satisfied, namely, that it had been necessary, for purposes connected with protecting the public from a risk of terrorism, to impose a TPIM. She had been entitled to be sceptical of LG’s professed change of heart and direction, and to doubt whether it had been both genuine and complete. The same view was reached on the basis of closed evidence. Furthermore, the Secretary of State had been, and continued to be, entitled to decide that condition D was satisfied, namely, that it had been, and continued to be, necessary for purposes connected with preventing or restricting LG’s involvement in TRA for each of the specified measures to be imposed on him. However, that was with the exceptions of the association measure, so far as it applied to religious advice giving and the reporting measure. In particular, while there was a value in requiring LG to attend personally at the police station on some days, it would be a proportionate requirement for him to do so three days a week. On the other days, he would be required to telephone in to the monitoring company within a prescribed time band (see [111], [118], [144], [151] of the judgment).

Bank Mellat v Her Majesty’s Treasury [2013] 4 All ER 533 applied.

(3) The Secretary of State had been entitled and right to decide that IM had been involved in TRA for the reasons which she had given. She had been entitled and right to find that ALM had continued to exist and that IM had been a senior leading figure within it. The Secretary of State had been entitled and right to find that he had, through radicalisation, facilitated or encouraged others to join ISIL to whose Caliphate he had personally declared allegiance and also that his conduct had amounted to radicalisation. Those conclusions were reinforced by the closed evidence. Further, the Secretary of State had been and continued to be entitled reasonably to conclude that a TPIM on IM had been necessary for the purposes connected with protecting members of the public from a risk of terrorism. That conclusion was supported by the closed evidence. Furthermore, the Secretary of State had been entitled to conclude that condition D had been, and continued to be, satisfied so far as each of the individual measures was concerned and so far as the package of measures as a whole was concerned. The qualifications were the reporting measure and the association measure. In particular, it was difficult to see how religious advice, which did not concern something reasonably understood as a direct or indirect encouragement or glorification of, or an inducement or assent to, the commission, preparation or instigation of an act of violence and any form of caliphate, the legitimacy or otherwise of ISIL, its published names or equivalent descriptions, could prevent or restrict the individual’s involvement in TRA. If changes to the religious advice association measure were made, there would be no good reason for an exception for such advice given in IM’s home to his children (see [175], [176], [198], [200], [211], [212] of the judgment).

Secretary of State for the Home Department v GG; Secretary of State for the Home Department v NN (proceedings under the Prevention of Terrorism Act 2005) [2009] All ER (D) 314 (Mar) applied.

(4) The Secretary of State’s open evidence, in addition to the closed evidence, showed that ALM continued to exist. She had been entitled and right to decide, on the balance of probabilities, that JM had been a senior leader in ALM. The open evidence, supported by the closed evidence, allowed that conclusion to be reached. The Secretary of State had been entitled and right to find that JM had encouraged and, through radicalisation, facilitated the travel of others to join ISIL. That conclusion was reinforced by the closed evidence. Further, on the basis of all the evidence, open and closed, the Secretary of State had been entitled reasonably to conclude that a TPIM had been necessary and proportionate, and that that had continued to be the case. Furthermore, the Secretary of State had been entitled to conclude that condition D had been, and continued to be, satisfied so far as each of the individual measures were concerned and so far as the package of measures as a whole was concerned. The qualifications were that the association measure, so far as it concerned religious advice had to be varied and the reporting measure had to be varied (see [244], [245], [251], [255], [282], [283] of the judgment).

Cathryn McGahey QC, Ben Watson, Andrew Deakin and James Stansfeld (instructed by the Government Legal Department) for the Secretary of State.

Tom Hickman and Jessica Jones (instructed by Birnberg Peirce Ltd) for LG.

Danny Friedman QC and Steven Powles (instructed by Ahmed & Co) for IM.

Hugh Southey QC and Blinne Ní Ghrálaigh (instructed by Ahmed & Co) for JM.

Helen Mountfield QC and Shaheen Rahman QC (instructed by the Special Advocates’ Support Office) as Special Advocates for LG.

 Charles Cory-Wright QC and Martin Goudie QC (instructed by the Special Advocates’ Support Office) as Special Advocates for IM and JM.

Karina Weller, Solicitor (NSW) (non-practising)