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Judgments

Secretary of State for the Home Department v CE
Terrorism - Prevention of - Control order - CE being subjected to a control order by Secretary of State - CE
challenging validity of control order and obligations imposed on him - Whether reasonable for Secretary of
State to issue control order - Prevention of Terrorism Act 2005, s 2
Human rights - Right to respect for private and family life - Control orders - CE being subjected to a control
order by Secretary of State - CE challenging validity of control order and obligations imposed on him Whether interference with human rights by obligations being imposed by control order necessary and
proportionate means of achieving objective of protecting public from risk of terrorism - European Convention
on Human Rights, art 8
[2011] EWHC 3159 (Admin), PTA/4/2011, (Transcript: Wordwave International Ltd (A Merrill
Communications Company))
QBD, ADMINISTRATIVE COURT
LLOYD JONES J
24, 25, 28, 31 OCTOBER, 1, 3, 4 NOVEMBER, 21 DECEMBER 2011
21 DECEMBER 2011
J Moffett and R Jones for the Applicant
R Hermer QC and B Jaffey for the Respondent
C Cory-Wright QC and Z Ahmad as Special Advocates for the Respondent
Treasury Solicitor; Birnberg Peirce & Partners; Special Advocates' Support Office

LLOYD JONES J:
[1] CE is 27 years of age. He is originally from Iran and came to the United Kingdom on 24 November 1990.
He was naturalised as a British citizen on 29 April 2004. He is married and has two children. In March 2011
his son was aged four and his daughter aged two. Prior to the control order being made CE lived in a flat in
West London.
[2] By an application notice dated 3 March 2011 the Secretary of State sought permission to make a nonderogating control order against CE under the Prevention of Terrorism Act 2005 ("the Act"). Permission was
granted by Collins J on 4 March 2011 and the control order was made on that day. It was served with a
covering letter on CE on the morning of 5 March 2011.

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[3] Prior to making the control order the Secretary of State consulted the Metropolitan Police, in compliance
with s 8(2) of the Act, as to whether there was evidence available that could realistically be used for the
purposes of the prosecution of CE for an offence relating to terrorism. The Metropolitan Police, having
consulted with the CPS in accordance with s 8(5) of the Act, advised that there was not.
[4] The terms of the control order as originally imposed required CE to reside at his flat in West London,
although it referred to the fact that CE would in due course be relocated to a named location outside London
("the new location").
[5] On 7 March 2011 CE's legal representatives wrote to the Home Office seeking reconsideration of the
decision to relocate CE. On the same day they lodged an application in the High Court requesting that the
court grant interim relief preventing the Home Office from relocating CE until a full hearing had taken place
and a judgment had been handed down on an appeal against relocation. The Home Office declined CE's
request and on 8 March 2011 confirmed that CE would be relocated on 10 March. On the same day CE
appealed pursuant to s 10(3) of the Act against the decision not to modify the residence obligation.
[6] On 10 March 2011 Keith J heard CE's application for interim relief and dismissed it. Later that day CE
was relocated. Associated modifications were made to the control order obligation. In particular the curfew
period was reduced from the period of 14 hours between 6.00pm and 8.00am to the period of 12 hours
between 7.00pm and 7.00am.
[7] Keith J gave directions in relation to the various procedural steps leading up to the hearing before me,
and in relation to an early hearing date to deal with CE's appeal against the refusal to modify the residence
obligation. That was due to be heard on 14 April 2011. However, on 18 March 2011 CE withdrew his appeal
against the refusal to modify the residence obligation and he has continued to reside at the new location.
[8] A disclosure hearing pursuant to CPR Pt 76, r 29 took place before Silber J on 6 July 2011.
LEGISLATIVE PROVISIONS
[9] Section 1(1) of the PTA defines a "control order" as "an order against an individual that imposes
obligations on him for purposes connected with protecting members of the public from a risk of terrorism".
[10] By virtue of s 15(1) of the Act, in this context "terrorism" has the same meaning as in the Terrorism Act
2000. Section 1 of that Act provides (insofar as is relevant):
"(1) In this Act 'terrorism' means the use or threat of action where (a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to
intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
(2) Action falls within this subsection if it (a) involves serious violence against a person,

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(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism
whether or not subsection (1)(b) is satisfied.
(4) In this section (a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country
other than the United Kingdom."

[11] A "non-derogating control order" is a control order made by the Secretary of State (ss 2(3) and 15(1)).
Section 2 provides for the making of non-derogating control orders by the Secretary of State and s 3 provides
for the supervision of such orders by the court.
[12] Under s 2, the Secretary of State may make a control order against an individual if she:
"(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and
(b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism,
to make a control order imposing obligations on that individual."

[13] "The public" is defined as "the public in the whole or part of the United Kingdom or the public in another
country or territory, or any section of the public" (s 15(1)). "Terrorism-related activity" is defined as follows in s
1(9):
". . . involvement in terrorism-related activity is any one or more of the following (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 such acts, or which is intended
to do so;
(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 paragraphs (a) to (c);

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and for the purposes of this subsection it is immaterial whether the acts of terrorism in question are specific acts of
terrorism or acts of terrorism generally."

[14] The Secretary of State must not make a control order against an individual unless, on an application to
the court, she has been granted permission to do so (s 3(1)). On such an application, the court may grant
permission unless it determines that the Secretary of State's decision that there are grounds to make the
control order is obviously flawed (s 3(2)).
[15] Where the court grants permission to make a control order, it must give directions for a hearing in
relation to the order as soon as reasonably practicable after it is made (s 3(2)(c)). Section 3(10) provides for
the function of the court at such a hearing, as follows:
". . . the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed
(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and
(b) his decisions on the imposition of each of the obligations imposed by the order."

[16] In MB v Secretary of State for the Home Department [2006] EWCA Civ 1140, para 46, [2007] QB 415,
[2006] 3 WLR 839, the Court of Appeal held that, on a s 3(10) hearing, the court should also consider
whether the decisions of the Secretary of State in relation to the control order and its obligations are flawed
as at the time of the court's determination.
[17] In determining whether the decisions of the Secretary of State were flawed, the court must apply the
principles applicable on an application for judicial review (s 3(11)). In MB, the Court of Appeal gave guidance
on the approach that the court should adopt:
"60 Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court
can review the decision of the Secretary of State without itself deciding whether the acts relied on by the Secretary of
State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in
terrorism related activity.
61 Somewhat different considerations apply in respect of the second element in the Secretary of State's decision.
Section 3(10) requires the court to review the decision of the Secretary of State that it was necessary, for purposes
connected with protecting the public from a risk of terrorism, to make the control order. The court is further required to
consider his decision on each of the obligations.
...
63 Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the
risk of terrorism involves the customary test of proportionality. The object of the obligations is to control the activities of
the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligations that it is
necessary to impose may depend upon the nature of the involvement in terrorism-related activities of which he is
suspected. They may also depend upon the resources available to the Secretary of State and the demands on those
resources. They may depend on arrangements that are in place, or that can be put in place, for surveillance.
64 The Secretary of State is better placed than the court to decide the measures that are necessary to protect the
public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the
decisions taken by the Secretary of State. That it is appropriate to accord such deference in matters relating to state
Security has long been recognised, both by the courts of this country and by the Strasbourg court . . . .
65 Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of
the obligations imposed on an individual under a control order, and it must do so. The exercise has something in

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common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive and,
in such cases, the court should explore alternative means of achieving the same result. The provision of section 7(2) for
modification of a control order 'with the consent of the controlled person' envisages dialogue between those acting for
the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at
the stage that the court is considering the necessity for the individual obligations.
...
67 . . . [T]he PTA authorises the imposition of obligations where there are reasonable grounds for suspicion. The issue
that has to be scrutinised by the court is whether there are reasonable grounds for suspicion. That exercise may have
involved considering a matrix of alleged facts, some of which are clear beyond reasonable doubt, some of which can
be established on the balance of probability and some of which are based on no more than circumstances giving rise to
suspicion. The court has to consider whether this matrix amounts to reasonable grounds for suspicion and this exercise
differs from that of deciding whether a fact has been established according to a specified standard of proof. It is the
procedure for determining whether reasonable grounds for suspicion exist that has to be fair if Article 6 is to be
satisfied."

[18] If, applying this approach, the court determines that a decision of the Secretary of State was flawed, s
3(12) provides that it may:
1

(1) quash the control order;

2

(2) quash one or more obligations imposed by the control order; and

3

(3) give directions to the Secretary of State for the revocation of the order or for the modification
of the obligations it imposes.

[19] If the court determines that the decisions of the Secretary of State were not flawed, it must decide that
the control order is to continue in force (s 3(13)).
THE CONTROL ORDER
[20] The obligations under the control order include the following:
4

(1) CE is required at all times to wear an electronic monitoring tag.

5

(2) CE was originally required to reside in his property in London subject to a 14 hour curfew.
Following relocation he is required to reside at an address in the new location subject to a 12
hour curfew.

6

(3) CE is required to report by telephone on the first occasion he leaves the residence after the
end of the curfew and on the last occasion he returns to the residence before curfew. He is also
required to report to a police station at a designated time.

7

(4) Named individuals are prohibited from entering or remaining at the residence.

8

(5) A new obligation 5.3 relating to chance meetings is considered below.

9

(6) There is a prohibition on contact with certain named individuals. Ten individuals were
originally named and this list has now been increased to twelve individuals. There is also a
prohibition on communication with individuals outside the United Kingdom without prior Home
Office approval.

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10

(7) There is a requirement to notify the Home Office of any interest in land or vehicles. This has
been modified to introduce a further obligation to notify the Home Office, at least one day in
advance, of any vehicle to be driven at least one day in advance. There is a requirement to
permit entry to the residence and any vehicle for search, seizure or the installation of
equipment.

11

(8) There is a requirement to comply with written police prohibitions or restrictions on
movement for a 24 hour period.

12

(9) There is a prohibition on the use, possession and presence in the residence of computers,
digital storage devices, telecommunications equipment, equipment capable of connecting to the
internet except for one fixed line telephone, the monitoring company telephone line and one
mobile telephone and SIM card without internet capacity.

13

(10) There is a requirement of prior approval of mosque attendance within the boundary of the
permitted area.

14

(11) There is a prohibition on leaving the boundary area, originally in West London and now in
the new location.

15

(12) There is a prohibition on entering internet cafÈs, money exchanges and travel agencies.

16

(13) There is a prohibition on holding more than one notified bank account.

17

(14) There is a prohibition on the transfer of money or sending of documents or goods outside
the United Kingdom without prior Home Office agreement.

18

(15) There is a requirement to surrender his passport and other travel documents. In addition
there is a prohibition on applying for or possessing a passport, travel documents or travel
tickets.

19

(16) There is a prohibition on leaving Great Britain.

20

(17) There is a prohibition on entering or being present at airports, seaports and international
railway stations.

21

(18) There is a prohibition on commencing academic or training courses without prior Home
Office approval.

22

(19) There is a prohibition on employment in "notified areas of employment" without Home
Office approval. There is also a requirement to notify the Home Office of other employment.

[21] The obligations under the control order were modified on 20 April 2011 to add two additional prohibited
contacts to the list in para 6.1.
[22] The obligations were further modified on 17 October 2011 to include an additional obligation 5.3 relating
to chance meetings.
[23] During the currency of the control order CE has made various requests to modify the obligations. The
following requests have been granted:
23

(1) The curfew period has twice been modified to start and finish later.

24

(2) The curfew period was divided so that CE could attend evening prayers during Ramadan.

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25

(3) The geographical boundary has been varied in relation to 13 of the 14 requests made by CE
to attend legal conferences and court. It was also varied to enable CE to attend his son's
school graduation in London.

26

(4) Modifications have been made with a view to CE's undertaking work on construction sites at
short notice.

27

(5) CE has requested and been granted permission to meet six people outside his residence.

28

(6) CE has been granted permission to telephone his grandmother in Iran.

29

(7) CE has been granted permission to visit a local library.

DISCLOSURE.
[24] Article 6 ECHR applies to these proceedings. In Secretary of State for the Home Department v AF (No
3) [2009] UKHL 28, [2010] 2 AC 269, [2009] 3 All ER 643, Lord Phillips, referring to the decision of the Grand
Chamber of the European Court of Human Rights in A v United Kingdom (2009) 49 EHRR 625, 26 BHRC 1,
[2009] ECHR 3455/05, explained the impact of art 6 in the following terms:
". . . I am satisfied that the essence of the Grand Chamber's decision lies in para 220 and, in particular, in the last
sentence of that paragraph. This establishes that the controlee must be given sufficient information about the
allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this
requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the
sources of the evidence forming the basis of the allegation. Where, however, the open material consists of purely
general assertions and the case against the controlee is based solely or to a decisive degree on closed materials, the
requirements of a fair trial will not be satisfied, however cogent the case based on the closed material would be."

(See further the observations of the Court of Appeal in AH v Secretary of State for the Home Department
[2011] EWCA Civ 787 at para 8 as to what constitutes the ratio of AF (No 3)).
[25] A disclosure hearing pursuant to CPR Pt 76, r 29 before Silber J on 6 July 2011 resulted in further
disclosure to CE and his legal representatives.
[26] At the start of the hearing before me CE's legal representatives and the Special Advocates made further
applications for disclosure. As a result of my preliminary rulings the Secretary of State provided some further
disclosure.
[27] In their closing submissions CE's counsel made further submissions in relation to what they claimed
was the inadequacy of disclosure. Furthermore, at the start of his final submissions in closed hearing, Mr
Cory-Wright QC, Special Advocate, made a further application for disclosure. Mindful of the continuing
obligation on the court to ensure that the proceedings are compliant with art 6, I heard full argument on this
further application. For the reasons set out in my closed judgment, I am satisfied that nothing has changed
so as to require further disclosure by the Secretary of State. I consider that proper disclosure has been made
in accordance with art 6 and that the proceedings remain compliant with art 6.
ADMISSIBILITY OF DETAINEE EVIDENCE.
[28] It was submitted by Mr Hermer QC on behalf of CE that there is a rule of public international law
rendering inadmissible in proceedings before a national court evidence obtained from a person in arbitrary
detention. Mr Hermer submits that this is a rule of customary international law resulting from a general and

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consistent practice of States acting from a sense of legal obligation. Furthermore, he submits that this rule of
customary law has achieved the status of jus cogens, ie a peremptory norm of international law which has
been accepted and recognised by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general international law
having the same character. (See the Vienna Convention on the Law of Treaties, art 53.) I note that a similar
argument was rejected by Mitting J in XX v Secretary of State for the Home Department [2010] UKSIAC 61,
SIAC, but that the Court of Appeal has recently granted permission to appeal on this point (XX v Secretary of
State for the Home Department [2011] EWCA Civ 860). The argument proceeds by analogy with the position
in relation to evidence obtained by torture. See A v Secretary of State for the Home Department (No 2)
[2005] UKHL 71, [2006] 2 AC 221, [2006] 1 All ER 575.
[29] I postponed argument on this issue, informing Mr Hermer that if necessary I would ask him to return to
argue this point. In the event, it has not been necessary to hear argument on what, no doubt, would have
been a fascinating point.
THE ISSUES
[30] The issues which arise in this case may be summarised as follows:
30

(1) Is the Secretary of State entitled to conclude that CE was or is involved in terrorism-related
activity?

31

(2) Is the Secretary of State entitled to conclude that it is necessary to make a control order
against CE for purposes connected with protecting members of the public from the risk of
terrorism?; and

32

(3) Are the obligations imposed by the control order necessary and proportionate?

Each of these questions must be addressed both at the time the order was made and at the time of the
hearing.
[31] The Secretary of State's case is that CE is an Islamist extremist who in 2006-7 received terrorist training
in Somalia from members of Al Qaida, who is part of a network of Islamist extremists which is involved in the
provision of funds and equipment and the facilitation of individuals' travel to Somalia for terrorism-related
purposes, who in March 2010 sought to travel to Somalia for terrorism-related purposes and who maintains
an intention to do so.
[32] The national security case against CE is set out in three Security Service Statements under the
following headings.
33

(1) Terrorist training in Somalia 2006-7.

34

(2) Activities since return to the United Kingdom.

35

(3) Attempt to travel to Somalia in March 2010 and continued intention to travel.

TERRORIST TRAINING IN SOMALIA IN 2006-7
[33] The Security Service assesses that CE attended a terrorist training camp in Somalia led by Harun Fazul
and Saleh Nabhan where he undertook terrorist training with the intention of using the skills he had learnt to
carry out terrorism related-activities once he returned to the United Kingdom. Fazul was a senior Al Qaida

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planner. The Security Service assesses that CE attended this camp with a group of United Kingdom based
associates including Bilal Berjawi, BX, Mohammed Ezzouek, Mohammed Miah and Hamza Chentouf. The
Security Service assesses that this training camp may well have included training in the use of explosives
and other harmful techniques. However, the Security Service does not maintain that CE was tasked to
undertake an attack in the United Kingdom. The Security Service maintains that the group was tasked to
return to the United Kingdom to carry out facilitation activities and to recruit individuals to work on behalf of Al
Qaida and/or Al-Shabaab. The Security Service further maintains that CE remained in East Africa until he
was arrested by Kenyan forces on the Somalia/Kenya border following his involvement in fighting with
Ethiopian forces in Somalia in January 2007. It is the Secretary of State's case that the Foreign and
Commonwealth Office facilitated CE's return to the United Kingdom.
[34] The evidence relied on by the Secretary of State under this head is, for the most part, closed and is
considered in the closed judgment.
[35] CE accepts that he went to Somalia in around mid-September 2006. He explains that he wanted to
contribute to the Islamic society which had been established there and which was limited in terms of
knowledge and resources. He thought he could give assistance and went in order to teach computer skills.
His evidence is that following the invasion of Somalia by Ethiopia he fled across the border to Kenya. He
states that when he fled from Mogadishu he made his way along the coast in a convoy to the Kenyan border
via Kismayo and Ras Kambone. He states that he has never been involved in fighting and, apart from seeing
jet planes overhead, did not witness any fighting at first hand. He states that he has never been armed. It is
CE's case that after he fled across the border into Kenya he was detained and questioned by the Kenyan
authorities and by the British "Secret Services" before being rendered to Somalia. He states that he was then
returned from Somalia to the United Kingdom.
[36] The Secretary of State neither confirms nor denies that CE was questioned by the British Intelligence
Services in Kenya. The Secretary of State maintains that he was deported from Kenya to Somalia.
[37] The Secretary of State accepts that CE has consistently provided an innocent explanation for his time in
Somalia in 2006-7. In particular, in an interview CE gave for a documentary broadcast in June 2007 he
explained that he was in Somalia to teach computer skills to local children. This interview formed the basis
for an article in a newspaper, also in June 2007. Nevertheless the Secretary of State maintains that while he
may have been involved in teaching computer skills whilst in Somalia, he was also engaged in terrorismrelated activity.
[38] Mr Moffett on behalf of the Secretary of State points to the fact that CE left the United Kingdom to travel
to Somalia the day after his first child was born and suggests that there must therefore have been some
compelling motivation for him to go to Somalia. He also questions CE's stated reasons for going to Somalia,
namely that it "was a new Islamic State governed by Islam" and that he wanted to live under Islamic law and
because he wanted "to give back to the Islamic society as [he] knew they were limited in terms of knowledge
and resources" and "he thought that [he] could give assistance". He submits that this provides no explanation
of why he should travel such a long way to an unfamiliar country, wracked with civil war, the day after his son
was born.
[39] Mr Moffett also points to the fact that CE provides very little information as to what he did in Somalia
and suggests that this is in marked contrast to his very detailed account of what he says occurred in Kenya
following his arrest by the Kenyan authorities. In fact, CE merely confirms the accuracy of the account he
gave to a documentary broadcast in June 2007 on his return to the United Kingdom; that account provides
very little information as to his activities. Similarly, in his port stop interview on 14 February 2007 CE provides
little more detail, merely stating that when in Somalia he went sightseeing in and around Mogadishu, visited
the port and taught computer skills to an individual named Mosab and his friends. Mr Moffett points in

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particular to the absence of any denial in CE's witness statements that he had attended a training camp in
Somalia or that he had contact with Harun Fazul and Saleh Nabhan.
[40] CE states that there is more that he could say in order to exculpate himself from the allegations under
this head. However he is not prepared to give a detailed account of everyone he met in Somalia. He explains
that he is very fearful that anything he says will be used to justify the detention and questioning of others in
Somalia or elsewhere. He considers it likely that any people he may identify will be subjected to surveillance,
harassment, detention, ill treatment or worse. He considers that anyone he mentions in order to defend
himself will be subject to a real risk. By way of example, he draws attention to Bilal Berjawi, named in the
national security statement as an associate of CE, who has been reported in the press to have been injured
by a US Government drone strike in Somalia.
[41] For the reasons set out in my closed judgment I am satisfied that there were and are reasonable
grounds for the Secretary of State to suspect that CE undertook training at a terrorist training camp in
Somalia led by Al Qaida operatives Harun Fazul and Saleh Nabhan, that the group of which he was a
member was tasked to return to the United Kingdom to carry out facilitation activities and to recruit
individuals to work on behalf of Al Qaida and/or Al Shabaab and that he was arrested by Kenyan forces on
the Somali Kenya border following his involvement in fighting with the Ethiopian forces in Somalia in January
2007.
[42] I have come to this conclusion without drawing any inference from the failure of CE to provide a detailed
explanation as to his activities during his time in Somalia. However, I make clear that I do not accept his
claim that he is prevented from doing so by a fear of exposing others to risk of unlawful treatment.
Furthermore, he could have provided a general account of his movements and activities within Somalia and
the locations at which he claims that he provided computer training. He has totally failed to do so save in
relation to the route by which he claims to have travelled to Kenya.
ACTIVITIES SINCE RETURN TO THE UNITED KINGDOM
ASSOCIATION WITH MEMBERS OF THE NETWORK
[43] The Secretary of State maintains that she has reasonable grounds for suspicion that since his return to
the United Kingdom in February 2007 CE has continued to associate regularly with members of a network of
United Kingdom and East African based Islamist extremists which is involved in the provision of funds and
equipment to Somalia for terrorism-related purposes and the facilitation of individuals' travel from the United
Kingdom to Somalia to undertake terrorism-related activity. The Secretary of State maintains that members
of the network include BX, J1, Mohammed Ezzouek, Hamza Chentouf, Mohammed Emwazi, Mohammed
Mekki, Mohammed Miah, Ahmed Hagi, Amin Addala, Aydarus Elmi, Sammy Al-Nagheeb, Bilal Berjawi and
others. The Secretary of State maintains that CE has regularly attended covert meetings with members of
the network. These meetings have typically been held in public spaces in order to prevent the authorities
from monitoring the content of discussions. In addition it is said that following, and probably because of, the
disruption of CE's alleged attempted travel to Somalia in March 2010 with Al-Nagheeb, CE adopted a higher
level of security awareness when engaging with the network.
[44] In this regard, the Secretary of State relies on the findings made by SIAC when it considered J1's
appeal against deportation on national security grounds:
"6 . . . We are satisfied that [J1] was an associate of three men who left the United Kingdom, for terrorism related
purposes, for Somalia, in October 2009, Bilal Berjawi, Mohammed Sakr and Walla Eldin Rahman. We accept the
assessment of the Security Service, based on that association, that he knew in advance about their travel and its
purpose - terrorist training and activity in Somalia. We accept that Berjawi has remained in contact with his UK based
associates since his departure; and that before his detention on 25 September 2010, [J1] was an important and

 Page 11

significant member of a group of Islamist extremists in the United Kingdom which provided support to them." (J1 v
Secretary of State for the Home Department, SC/98/2010, 15 April 2010)

[45] CE accepts that he has met and knows all of the individuals listed above. Sammy Al-Nagheeb is one of
them. They have been close friends since they met at school and, until the control order was imposed, spent
most of their free time together. CE played football with several of the other people referred to or knows them
through mosque attendance or through other people.
[46] CE explains that he knows these people to varying degrees. With some such as J1 they would spend
time together also with their wives and children in their respective homes. With some he would occasionally
go for something to eat at a local restaurant or cafÈ after attending the mosque or at other times. Others
such as Mohammed Mekki, Ahmed Hagi and Mohammed Emwazi he would describe as acquaintances. He
states that he has not met them very often and does not know them very well.
[47] On behalf of CE, Mr Hermer makes the point that only one of the named associates is the subject of a
control order. Another, he accepts, is at present subject to detention under immigration powers while he
challenges before SIAC an order for his removal from the United Kingdom.
[48] The Secretary of State draws attention to the statement by CE that he was merely an acquaintance of
Mekki, Hagi and Emwazi and that he did not know them well or see them very often. The Secretary of State
also draws attention to a passage in a later section of his first witness statement in which CE states that both
Mekki and Emwazi often came round to "the flat" and that they came round to his wife's flat when he was
there on 13 and 18 February 2011.
[49] With regard to the meeting on 13 February 2011, CE denies that he was involved in any discussions of
Islamist extremist activity on that occasion. He does however accept that a number of his associates were
present including Al Nagheeb, Mekki and Emwazi.
[50] With regard to the meeting on 18 February 2011, CE explains that this was a wedding. Here CE relies
on the evidence of Ms Jacqueline Nuth, a solicitor, whose daughter was getting married. She describes as
"absurd" the suggestion that extremist activity was discussed. However, Mr Moffett points to the fact that Ms
Nuth left shortly after the arrival of Mekki and Emwazi at about 10.00pm and so cannot speak of what
occurred after her departure at about 10.30 pm.
[51] This evidence does, however, establish that CE was associating with these individuals, named as part
of the network of which he was a member, and was doing so in the period immediately before the imposition
of the control order.
[52] For the reasons set out above and for the further reasons set out in my closed judgment, I am satisfied
that the Secretary of State had and has reasonable grounds to suspect that CE has been and is part of a
network of United Kingdom and East Africa based Islamist extremists.
INVOLVEMENT IN PROVISION OF FUNDS TO ASSOCIATES
[53] The Secretary of State maintains that from the summer of 2010 CE was involved in the provision of
funds to his United Kingdom based and Somalia based extremist associates including Bilal Berjawi and that
the network of which CE is a part has provided extensive funds to its Somalia-based extremist associates for
terrorism related purposes.

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[54] CE denies that he actively supports terrorism by providing funds and by facilitating the transport of
individuals and equipment to Somalia. Contrary to the submission of Mr Moffett, I consider this to be an
unequivocal denial. CE states that he did provide small amounts of money to his best friend, as he
sometimes needed money for his rent. CE emphasises in his witness statement, however, that he does not
wish to attempt to exculpate himself by saying anything in response to the allegation that he provides funds
and facilitates the travel and support of individuals and equipment to Somalia because he is fearful that
anything that he does say will expose others to the risk of detention, ill treatment or death.
[55] For the reasons set out in my closed judgment, I am satisfied that the Secretary of State had and has
reasonable grounds to suspect that CE was involved in the provision of funds to his United Kingdom based
and Somalia based extremist associates including Bilal Berjawi and that the network of which CE is a part
has provided extensive funds to its Somalia based extremist associates for terrorism-related purposes. In
coming to this conclusion I have not drawn any inference from the failure of CE to provide any explanation of
his conduct. However, I make clear that I do not accept that there is any justification for his silence on this
issue.
SECURITY CONSCIOUS BEHAVIOUR.
[56] The Secretary of State maintains, on the basis of the Security Service assessment, that CE is highly
security conscious and has displayed several techniques designed to impede coverage of his activities by
the authorities. One of the allegations is that he and his associates have meetings in public and open spaces
designed to prevent the authorities from monitoring the discussions. CE denies ever having had such a
meeting. He considers that the Security Service may be referring to his playing football or walking with
friends.
[57] The Security Service assesses that following, and probably because of, the disruption of CE's travel to
Somalia in March 2010 with Al-Nagheeb, CE adopted a higher level of security awareness when engaging
with the network. CE's response is that he became aware around that time that he was being followed.
Furthermore, friends and acquaintances were being asked about him and shown photographs of him by the
police and the Security Service. He became obsessive about this and considers that it was natural to alter his
behaviour. He also stopped carrying a mobile phone in the hope that it would mean that he would not be
followed and would be left alone. The Secretary of State does not accept that this is the true explanation for
his behaviour post-March 2010.
[58] The Secretary of State relies on a Security Service assessment that members of the wider extremist
network of which CE is part have used false documents to travel from the United Kingdom intent on reaching
Somalia to engage in terrorist training. In light of this the Security Service assesses that CE also has the
capability to obtain false documents.
[59] In support of her case on the alleged ability of CE to obtain false travel documentation, the Secretary of
State relies on the fact that in June 2009 a London based member of what is said to be the wider network,
CF, absconded from court bail during trial for terrorism offences. (He was subsequently acquitted in his
absence but convicted on his return to the United Kingdom of offences under the Bail Act). The assessment
of the Security Service is that CF travelled to Somalia where he received terrorist training and engaged in
fighting on behalf of Al Shabaab. Following his return to the United Kingdom in March 2011 CF was made
subject to a control order. In a witness statement he admitted that he left the United Kingdom on a false
Portuguese passport. In addition he had stated that he "used contacts" to aid his travel to Somalia. The
Security Service's assessment is that these contacts are a reference to the network of which CF and CE are
a part. As a result the Security Service assesses that CE has the capability to obtain a false document. It also
alleges that following his failure in March 2010 to travel to Somalia on his own passport, CE may seek to use
a false travel document to travel to Somalia.

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[60] CE denies that he has the capability to obtain false documents. He states that he does not know the
basis of this allegation. Furthermore, as far as he is aware, no one he knows has attempted to travel abroad
on false documents.
[61] So far as the use of techniques designed to impede coverage by the authorities is concerned, the
Security Service relies in particular on a meeting between CE and Abdul Aziz Abubakar which took place in
East London on 22 January 2011 during which it is said that they displayed security conscious behaviour.
This included walking along a convoluted route which, it is assessed, was designed to evade surveillance. As
a result, the Security Service assesses that this meeting may have included discussions of terrorism-related
activity.
[62] CE's response to this allegation is to explain that he used to attend a weekly lesson on Saturday
evenings at a mosque on Barking Road. He met Abubakar at this course and they became friends. They
would occasionally go for something to eat after the lesson.
[63] CE says that he cannot recall what happened on 22 January but states that if they did go to the kebab
shop he could suggest a route they may have taken and he does not consider that to be particularly
convoluted. In his first witness statement CE called for the provision of further information in relation to the
route he is supposed to have followed. He explains that he may not have taken the most direct route. When
enjoying conversation he might have taken a scenic route. He also prefers walking down quiet residential
streets as opposed to busy, noisy main roads. He is concerned that his conduct has been misinterpreted.
[64] During the hearing before me CE was provided with further information as to the route which he is
alleged to have followed on that occasion. However he has not responded to that further information.
[65] Having regard to all these matters and to the matters set out in my closed judgment I have come to the
clear conclusion that the Secretary of State had and has reasonable grounds to suspect that CE was
displaying security conscious behaviour.
ATTEMPTED TRAVEL TO SOMALIA IN MARCH 2010
[66] The Security Service assesses that in March 2010 CE attempted to travel overland and on his own
passport to Somalia with his associate, Sammy Al-Nagheeb, to engage in terrorism-related activity. The
Security Service assesses that the pair took this route to avoid coming to the attention of the authorities. It
assesses that this travel was unsuccessful and that both CE and Al-Nagheeb returned to the United Kingdom
on 23 March 2010.
[67] CE's response is brief:
"The SSHD alleges that I attempted to travel to Somalia in March 2010 with Sammy Al-Nagheeb. The only journey I
made in March 2010 was to Belgium. I did not go to Somalia nor did I attempt to go to Somalia when I was in Belgium. I
went with my best friend. I travelled on my British passport. My father, who is also my partner in business, was entirely
aware of this trip. It was not clandestine in any way. If it is being suggested that there is evidence to the contrary I feel
that I should be given it so that I have a chance to respond."

[68] During the hearing it was suggested by Mr Hermer to AG, a member of the Security Service who gave
evidence, that CE had been stopped by the police or customs authorities on leaving the United Kingdom or
on re-entry. However, there is no reference to this anywhere in CE's evidence.

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[69] Mr Moffett, on behalf of the Secretary of State, suggests that CE's statement that he did not attempt to
go to Somalia when he was in Belgium is deliberately evasive. However, perhaps of greater significance is
the fact that CE offers no explanation as to the reason for his trip to Belgium. The suggestion of inadequate
disclosure cannot provide an answer here. CE was made fully aware of the nature of the case against him
and yet offers no explanation as to the reason for his trip to Belgium.
[70] For this reason and for the reasons set out on my closed judgment, I consider that the Secretary of
State had and has reasonable grounds to suspect that in March 2010 CE attempted to travel to Somalia.
CONTINUING INTENTION TO TRAVEL TO SOMALIA TO ENGAGE IN TERRORISM-RELATED ACTIVITY
[71] The Secretary of State relies on the assessment by the Security Service that CE maintains the intention
to travel to Somalia to engage in terrorism-related activity. It is the Secretary of State's case, based on the
Security Service's assessment, that following CE's return to the United Kingdom after his failed attempt to
reach Somalia in March 2010, he made further plans to travel to Somalia to engage in terrorism-related
activity. Further, the Security Service assesses that CE would be better placed to fulfil that intention if he
resided near his associates in West London.
[72] In his response to these allegations CE accepts that he has been to Somalia in the past. He explains
that he went there because he cares deeply about the future of that country. He says that others considered
going there to help in some way, as he did. He believes himself to be someone with a conscience who cares
about humanity. However he states that that does not mean that he is someone committed to terrorist
activity. He contends that the Secretary of State has overstated and misinterpreted the direction and the
extent of the interest he has in trying to realise a better world for others.
[73] CE further states:
"Because I am aware of the risk to others of mistreatment or even death, I am unable to provide detail of any
interaction with other persons and hence unable to put into context friendships or contacts in which a desire to help
others in need has been at all times my prevailing wish."

[74] CE also points out that, at the date of his first witness statement, he had been the subject of a control
order for more than six months. He explains that there is no way in which he would do anything that could
lead to prolonging or renewing its existence. "I am only too aware of the drastic effect that would visit [on] my
family if there were to be any consideration on my part of such an intention. There is none."
[75] On behalf on the Secretary of State, Mr Moffett submits that it is an inadequate response for CE to say
that he does not wish to do anything that would lead to the continuation of the control order and, therefore,
he has no intention to travel to Somalia. In particular, Mr Moffett points to the absence of any denial in CE's
witness statements that, prior to the imposition of the control order, CE had an intention to travel to Somalia
or that after March 2010 he made plans to travel to Somalia.
[76] For reasons set out in my closed judgment I consider that the Secretary of State had and has
reasonable grounds to suspect that CE had, at the date of the making of the control order, a continuing
intention to travel to Somalia to engage in terrorism-related activity and that that intention subsists. In coming
to this conclusion I have not relied on any inference which may be drawn from the failure of CE to explain his
conduct.
INVOLVEMENT IN TERRORISM-RELATED ACTIVITIES

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[77] I have set out above my reasons for concluding that the Secretary of State had and continues to have
reasonable grounds to suspect that CE had engaged in terrorism-related activity within the meaning of s 1(9)
of the Act. In these circumstances I conclude that her decision that CE is or has been engaged in terrorismrelated activity is not flawed.
NECESSITY FOR THE CONTROL ORDER
[78] The second precondition to the making of a control order is that the Secretary of State considers that it
is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make
a control order imposing obligations on that individual. The Secretary of State having come to that view, the
question for consideration in these proceedings is whether that decision was flawed.
[79] It is convenient to begin this consideration of necessity by referring to Mr Hermer's submissions in
relation to the evidence of AG, the member of the Security Service who gave evidence at both the open and
closed hearings. AG is relatively junior, having been a member of the Security Service since 2009. He has
been involved in the investigation of the network of which the Security Service assesses CE is a member and
has worked with colleagues in the preparation of the four Security Statements in this case. He was present at
the meeting of the Control Order Liaison Group on 25 February 2011 but not at any of the Review Group
meetings concerning CE. Mr Hermer is very critical of the fact that AG had not read all of the documents
relating to this case. AG accepted in cross examination that he had not read all of the statements and
exhibits of Mrs Hadland. Furthermore he was not aware of the terms of control orders applying to certain
other persons alleged to be members of the same network or to the extent to which there was an overlap in
prohibited persons. Mr Hermer submits that, as a result, the court should be very slow to place weight on the
analysis of AG.
[80] Mrs Hadland's evidence addresses rather different issues from those addressed by AG. However, AG
should have been familiar with measures taken in relation to other persons alleged to be members of this
network. Nevertheless, he was fair and balanced in giving his evidence. I formed the view that AG was an
entirely frank witness who admitted that he had not read certain documents and who, more generally, readily
made concessions in cross examination when it was appropriate to do so. Furthermore, it was clear from his
evidence that, with very few exceptions, the assessments of the Security Service relied on by the Secretary
of State in these proceedings are not the assessments of AG or any one member of the Security Service
alone but of the relevant team. Accordingly I am not persuaded that the assessments of the Security Service
are invalidated in any way by any deficiencies on AG's part.
[81] The Secretary of State submits that the imposition of the control order was and remains necessary to
restrict CE's ability to travel to Somalia to engage in terrorism-related activity and to meet with his associates
to engage in terrorism-related activity within the United Kingdom, in order to protect members of the public
from the risk of terrorism. In particular it is said that if CE were able successfully to travel to Somalia he
would be in a position to utilise the experience he gained in training in 2006-7 and to utilise the support of a
large United Kingdom based network in order to engage in terrorism-related activity.
[82] On behalf of CE it is submitted that it is not necessary to make a control order. No control order was
made on his return from Somalia in 2007, nor was a control order made in 2010 on his return from Belgium.
It is said that the Security Service was aware of CE throughout this period and was plainly monitoring his
activities. No basis has been put forward as to why a control order is necessary or appropriate now when it
was not considered necessary earlier. This submission ignores the fact that following his failed attempt to
travel to Somalia in March 2010 CE made further plans to travel to Somalia up to the time of the imposition of
the control order.
[83] More specifically, it is said on CE's behalf that the risks identified do not justify a control order. It is
submitted that if the Secretary of State is concerned about foreign travel, the proportionate remedy is to

 Page 16

revoke CE's passport. Alternatively, it is said that any concerns could be addressed proportionately with
lesser measures such as the surrender of CE's passport, restrictions on his presence in ports or airports,
restrictions on holding substantial sums of cash and limiting him to a single monitored bank account. In
particular, the point is made that it is not suggested that CE is or has been involved in the planning or
execution of terrorist activity in the United Kingdom. It is said that on the Security Service's assessment, CE's
interest is confined to Somalia.
[84] To my mind there are several answers to this line of argument. First, it involves an unduly narrow and
insular approach to the threat of international terrorism. The legislation, by its definition of the public as
including the public in a country or territory outside the United Kingdom, clearly sees a control order as
capable of having a protective effect outside the United Kingdom. Secondly, in any event, the purpose of the
control order is not just to restrict CE's ability to travel to Somalia; it is also necessary to prevent him from
associating with members of a network in order to engage in terrorism-related activity within the United
Kingdom such as, for example, the provision of funds or equipment to Somalia. Thirdly the proposal that the
removal of CE's passport would be a sufficient restriction totally overlooks the assessment that CE has the
capability to obtain false documents and may seek to use a false document to travel to Somalia.
[85] For these reasons, I consider that the Secretary of State was reasonably entitled to conclude that in this
case a control order was and remains necessary in principle for the purpose of protecting members of the
public from a risk of terrorism. The question of the proportionality of the restrictions imposed on CE is
addressed below in the context of the specific obligations under the control order.
FURTHER DISCLOSURE
[86] On the completion of submissions in this case I reserved judgment. The draft open judgments were
submitted for security clearance in accordance with CPR 76.33. Shortly before I was due to hand down the
judgments on 30 November 2011 I received a request from the Special Advocates that I should not do so
until I had heard further submissions. The reason for their request was that on 29 November 2011 the
Security Service made further disclosure of potentially exculpatory material to the Special Advocates
pursuant to its ongoing obligations of disclosure. I agreed to defer handing down the judgments. I have since
received written closed submissions from the Special Advocates and the Secretary of State and I have heard
further oral submissions at a closed hearing on 12 December 2011. With the benefit of those further
submissions, I have been able to take stock of the new material and to reconsider the issues in this case in
the light of that material.
[87] For the reasons set out in my closed judgment, my conclusions remain the same.
[88] I should also record that the Special Advocates accept that the further disclosure provided does not give
rise to any further issues of disclosure to CE's representatives in accordance with art 6 ECHR.
THE CONTROL ORDER OBLIGATIONS
[89] In the present case there can be no doubt that the obligations imposed on CE under the control order,
and which are summarised earlier in this judgment, constitute a very considerable interference with his family
and private life within art 8 ECHR. It is necessary, therefore, to address whether they are necessary and
proportionate to the objective to be attained. In considering this question I have taken account of the witness
statements of CE and his wife and the expert reports from Judith Jones (an independent social worker) and
Dr Tim Winter (an expert in Islamic studies). I have also taken into account the witness statements of Mrs
Hadland on behalf of the Secretary of State.

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[90] The proportionality test as formulated by Lord Bingham in Huang v Secretary of State for the Home
Department [2007] UKHL 11, [2007] 2 AC 167 (at para 19), [2007] 4 All ER 15 may be paraphrased as
follows. First, the legislative objective must be sufficiently important to justify limiting a fundamental right.
Secondly, the measures designed to meet the legislative objective must be rationally connected to it. Thirdly,
the means used to impair the right or freedom must be no more than are necessary to accomplish the
objective. Fourthly, the judgement on proportionality must involve striking a fair balance between the rights of
the individual and the interests of the community. The severity and consequences of the interference will call
for careful assessment at this stage.
[91] The minimum interference test was considered further by the Court of Appeal in Bank Mellat v HM
Treasury (No 2) [2011] 3 WLR 71. There, Maurice Kay LJ urged the cautious deployment of the minimum
interference test as opposed to its wholesale rejection:
". . . it does not amount to insistence that the least intrusive measure is selected. It is that consideration be given to
whether the legitimate aim can be achieved by a less intrusive measure without significantly compromising it. Where,
as in the present case, the legitimate aim is one of very high value and the context is one in which the decision-maker
is to be accorded a wide margin of appreciation, sensitivity to the risk of compromise and a dose of common sense
should provide the decision-maker with ample protection against undue judicial interference." (At paragraph 30)

[92] In Bank Mellat a vital international interest was at stake and therefore the value of the legitimate aim
was extremely high. In the present case Mr Hermer submits that there has been no suggestion that the
terrorism-related activities of CE include any risk of his carrying out a terrorist atrocity in the United Kingdom.
That is correct. However, the Secretary of State's view, which she is reasonably entitled to hold in my
judgement, is that in the absence of a control order CE would attempt to travel to Somalia to engage in
terrorism-related activity and would engage with his associates in terrorism-related activity in the United
Kingdom. The prevention of such activities is undoubtedly a legitimate aim of very high value.
[93] In a case involving an individual suspected of involvement in terrorism-related activities, an interference
with Convention rights may more easily be justified as proportionate because the object is to protect the
public from the risk of terrorism. (R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ
414, [2009] 4 All ER 951, [2010] 1 WLR 123 per Dyson LJ at para 84.) Furthermore, as the Secretary of
State is better placed than the court to decide the measures necessary to protect the public against
terrorism, a degree of deference should normally be paid to the decisions taken by the Secretary of State in
this area. Nevertheless, the court remains under an obligation to subject to intense scrutiny the necessity for
each of the obligations imposed on an individual under a control order (see MB [2006] EWCA Civ 1140,
[2007] QB 415 at para 65, [2006] 3 WLR 839, cited above).
OBLIGATION 2.1: RELOCATION
[94] The current version of obligation 2 provides, in relevant part "You shall reside at [address] ('the
residence'). 'Residence' encompasses only the house at this address and does not include any private
outside space associated with it."
[95] The Secretary of State accepts that obligation 2.1 interferes with the art 8 rights of CE and his family to
respect for their family life. However, she submits that the justification for obligation 2.1 is strong and the level
of interference is, under the circumstances, relatively low.
[96] On behalf of CE it is submitted that there is no good evidence that relocation is necessary to prevent
CE's travel to Somalia. Attention is drawn to Mrs Hadland's acceptance that in the spectrum of compliance
with conditions of control orders CE falls towards the more compliant end and that there have been no
proven breaches of the control order by CE. It is said that there is a range of measures in place to prevent
travel: it is obvious that he is under close surveillance, he carries an "approved" mobile phone from which he

 Page 18

can be tracked, he is under a curfew, he is denied access to funds necessary for travel, contact with the
network said to be able to facilitate travel and access to the internet. The point is made that this is not a
control order, unlike others, that requires isolation to prevent a terrorist attack in the United Kingdom. Rather
it is focused on the aim of preventing international travel and that is a risk that is capable of management by
a range of measures short of removing CE from his family.
[97] The justification advanced by the Secretary of State for the relocation obligation is in fact wider than
suggested by CE's counsel. The Secretary of State considered and considers it necessary to locate CE away
from London in order to provide physical separation between CE and the other members of his network so as
to restrict his ability to engage with them and coordinate plans to travel to Somalia and to engage in
terrorism-related activity.
[98] I consider that the case for relocating CE is compelling. The Secretary of State has reasonable grounds
to suspect that CE is a member of a group based in London and overseas which is engaged in terrorismrelated activity and that he has a continuing intention to travel to Somalia to engage in such activities. I am
entirely satisfied that the relocation obligation is rationally connected to the objective of protecting the public
from the risk of terrorism. The placing of physical distance between members of a group is a valuable and
legitimate means of controlling the risk which they pose to members of the public. (See the observations of
Mitting J in BG and BH v Secretary of State for the Home Department [2009] EWHC 3319 (Admin) at para
20). The justification for relocation is therefore very strong indeed.
[99] CE deals in detail in his first witness statement with the impact of relocation on him and his family. His
evidence may be summarised as follows:
36

(1) Prior to relocation he worked five days a week at a garage which he and his father had set
up about two years previously. On Saturdays he had an Islamic stall where he used to
distribute materials. He had many friends and an active social life. Although he was not living
with his wife and children, he had frequent contact with them. He was very close to his children
and saw them every day. On Sundays he used to take his children out for four or five hours and
he would also take his children to the mosque. He would usually attend his mosque at least
once a day for prayers.

37

(2) The relocation was a great shock to him. He was worried whether the area where he now
lives was racist. He felt completely disempowered and unable to fulfil his responsibilities to his
children and his business. He describes himself as distraught.

38

(3) The lives of his wife and children have been shattered. They no longer have a normal family
life. They are, instead, occasional visitors to him in a city where they have no existence of their
own. They try to visit him most weeks, generally at the weekends. As a result their lives are split
in half and they are overwhelmed with anxiety and uncertainty. His wife is under an increased
pressure as she now has the expense of travelling and spending money in the new location. He
too has become a very stressed person. At present he sees his children only a couple of days a
week. When they are with him it is not in a normal or stable setting and their behaviour tends to
be over-excited and frantic. They are at an age when they need a strong and steady father
figure but he finds it difficult to discipline them when they only have a short time together. He
explains that although he and his wife had difficulties in their relationship before the control
order was imposed, they managed to maintain a responsible way of jointly looking after the
children. The control order has strengthened his commitment to his family. His wife and children
and their wellbeing are the central focus of his thinking for the future.

39

(4) He gives an account of the difficulties of seeking work in the new location. Eventually he
decided to set up a stall in the town centre to distribute religious materials. This occupied two
days a week but there were still five days when he was listless and felt he was wasting away.

 Page 19

40

(5) In around July he obtained a pedlar's licence which enabled him to sell perfume in the
streets.

41

(6) While he has been in the new location his friends occasionally come to see him. This
happens about once a week. His mother, father and sister visit him around once every two
weeks.

42

(7) The mosque which he is allowed to attend at the new location is generally attended by
mainly older Pakistani and Afghani men. The language spoken is generally Urdu which he does
not speak. There are very few young people.

43

(8) Recently he has met some non-Muslims, some of whom he has asked back to his house.
However the obligations of the control order constrain him and he cannot naturally develop
friendships with people as he normally would.

[100] CE's wife provides in her witness statement an account of the effect of the control order on her and the
children:
44

(1) She states that between her wedding to CE in May 2005 and the imposition of the control
order they had struggled in their relationship. They had not always lived together. However they
took joint responsibility for bringing up their children. She relied heavily upon him. She did not
have any other family on whom she could rely. Before the control order was imposed CE used
to visit the children almost every day. He would spend time with the children on weekends. He
took an active part in the schooling of his son and was teaching him Arabic, the Qur'an and
Islamic studies.

45

(2) CE's wife explains that the immediate impact of the control order was hugely traumatic for
her and the children. Their routine was totally disrupted. She focused simply on the urgent
necessities at the expense of the wider needs of the children and her own needs. This had a
very negative impact on the quality of care she could give to the children. In April 2011 she and
CE decided that she should move to the new location with the children to be with him. However,
after some four to six weeks, following a police search, they decided that she should move
back to London with the children.

46

(3) CE's wife explains that initially CE's friends and family went to visit him but over time these
visits became less frequent. This has further increased the pressure on CE's wife. She is
finding it very difficult financially.

47

(4) The relocation has had a negative impact on the children. She has also seen changes in CE
since the control order was imposed. He now loses his temper very quickly. She thinks the
control order is mainly affecting her and she feels that the relationship is a struggle.

[101] The evidence relied on by CE is this regard includes a very detailed report by Judith Jones, an
independent social worker. I do not propose to summarise this report in my judgment although I have
considered it in detail. It is sufficient to record her conclusion that the absence of CE has disrupted the
children socially, emotionally and practically and has also affected their mother who is unusually anxious and
concerned about the impact on her children if the situation continues. Ms Jones also states that CE's son is
currently exhibiting significant emotional distress and she is concerned that should the situation continue this
might become a more chronic and damaging reaction.
[102] The Secretary of State draws attention to the following matters as reducing the impact of relocation:
48

(1) It is said that CE has not always had an unwavering attachment to his wife and children. In
September 2006 he left to go to Somalia the day after his first child was born.

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49

(2) Prior to the imposition of the control order CE's relationship with his wife was in difficulties
and they were not living together. CE's wife has always been the primary carer for their
children.

50

(3) Since relocation CE's wife and children have been able to visit him most weekends for a
long weekend and they stayed with him for the whole of the school summer holidays. It is not
suggested that CE's accommodation in the new location is too small to accommodate his family
when they come to stay.

51

(4) Neither CE nor his wife has sought to take advantage of the Secretary of State's policy as to
payment of travel expenses.

[103] I accept that relocation has undoubtedly had a profound impact on CE and his family. However, I am
persuaded that the relocation of CE is necessary in order to achieve the legitimate objective of protecting the
public from his involvement in terrorism-related activity. This legitimate aim cannot, in my judgement, be
achieved by any less intrusive measure without significantly compromising it. In view of CE's security
awareness and previous attempts to impede coverage of his activities by the authorities, there is no less
intrusive way of ensuring that CE is isolated from his London network. If CE were to reside in West London,
that would enable him more easily to maintain contact with other members of the network and enable him to
take measures intended to conceal such contact.
[104] On behalf of CE it is submitted that control orders are to be abolished within a matter of weeks and
replaced by a new system of TPIMs which will deprive the Secretary of State of any power to order a person
to reside out of his locality. AG accepted in his evidence that the Security Services have known of this since
the commencement of this control order and have been planning for its implementation. It is submitted,
therefore, on behalf of CE, that as a matter of common sense it cannot be necessary for the relocation
condition to remain in force. The Security Services can be assumed to have the capability to manage
perceived risk without CE living in the new location. It is said that the position must have moved on since
earlier this year when the Security Service contended that the relevant surveillance resources were not yet in
place (Secretary of State for the Home Department v BM [2011] EWHC 1969 (Admin) at para 38). In addition
counsel for CE submit that it is legitimate, when considering the necessity for this obligation, to take into
account the criticisms of such a measure made by the Parliamentary Joint Committee on Human Rights and
the Secretary of State's Independent Reviewer of Counter-Terrorism and Security Powers.
[105] A Bill now before Parliament will, if it becomes law, replace control orders with a system of TPIMs
under which an order for relocation could not be made. However, as matters stand at present, this is only a
proposed change in the law. Moreover there can be little doubt that if this change in the law were enacted
significant additional resources would be required in order to achieve the same level of public protection as
under the current system. The surmise on the part of CE's counsel that appropriate alternative security
measures will already be in place is pure conjecture. I have to consider the legality of the Secretary of State's
order on the basis of the law as it presently stands. I remain of the view that the relocation order is a
necessary and proportionate response to the need to protect the public from a risk of terrorism posed by CE.
PARAGRAPH 5.3: CHANCE MEETINGS
[106] Article 5.1 of the control order imposed on CE, in its original form, prohibited him from meeting any
person by prior arrangement outside the residence save with the prior agreement of the Home Office and
subject to certain specified exceptions. It also established a procedure for the provision of information to the
Home Office to enable it to consider any request for such agreement. The first security statement explains
that the Secretary of State considered that it was necessary to prohibit CE from meeting any person outside
the residence by prior arrangement or attending any pre-arranged meetings or gatherings outside the

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residence without clearance from the Secretary of State. It states that this obligation limits CE's ability to
engage with extremist associates.
[107] Mrs Susan Hadland, a civil servant at the Home Office, states in her third witness statement that, in
many control order cases including CE's case, there is a need to place restrictions on the individual's ability
to meet associates outside the residence. However it is accepted that it would not be proportionate to prohibit
all meetings as this would catch chance meetings over which the individual has no control. For example it
would require the individual to ignore someone who approached him in the street and the Secretary of State
accepts that this would not be proportionate. Accordingly the approach that was originally taken was to
impose an obligation prohibiting pre-arranged meetings. However, Mrs Hadland explains that two problems
have arisen with such prohibitions. The first is that in various control order cases difficulties have been
experienced in proving "pre-arrangement" in an open hearing. This has made it impossible effectively to
prosecute breaches of the "meetings" obligation which, from the closed material, appear to be attempts by
the controlled individual to meet associates without monitoring by the authorities. The second is that the
Home Office considers that there is a potential ambiguity in the term "pre-arranged". The Home Office has
always interpreted this term to include a decision to continue or resume a chance meeting at another time or
place. However, she states that it has become clear over time that the term is open to other interpretations.
She states that in CE's case a decision was taken by the Crown Prosecution Service in June 2011 not to
prosecute him for a breach of the "meeting" obligation arising from events on 30 March 2011. It appears that
CE met friends from London outside the mosque and then continued the meeting in the mosque and later in
two different restaurants. CE admits that a meeting took place. Mrs Hadland says there was no direct
evidence to show that it was pre-arranged. The circumstances were not plain enough to infer that it was. It
appears that it is this that has triggered the modification.
[108] Mrs Hadland explains that, accordingly, following discussions with the police, the Crown Prosecution
Service and the Security Service, the Home Office is in the process of modifying the "meetings" obligation in
all applicable control order cases to clarify that, subject to a range of exceptions, the controlled individual
must seek Home Office permission for meetings outside the residence. She states that to ensure
proportionality the obligation has also been modified to exclude chance meetings, where they are ended as
soon as possible and not continued at another place or time, and meetings involving the provision of goods
or services to the controlled individual as a member of the public.
[109] As a result the control order applicable to CE was amended on 17 October 2011. Obligation 5 now
reads as follows, in relevant part:
"5.1) Subject to obligations 5.2, 5.3 and 6.1 (prohibited associates), you must not intentionally meet any person outside
your residence or attend any meetings or gatherings without the prior permission of the Home Office. For the
avoidance of doubt, a meeting shall be deemed to take place outside of the residence if one or more parties to it are
outside of the residence (and a meeting comprises you meeting with one or more other individuals). If permission is
granted subject to conditions, you must comply with those conditions:
5.2) You do not need prior Home Office permission to meet:
...
(xi) any person for employment purposes at a place of employment notified to and agreed by the Home Office before
your first attendance in accordance with obligation (19) below; or
(xii) any person providing goods or services to the public generally, and without appointment, to you as a member of
the public; or
(xiii) any person whilst attending prayers at a mosque.

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5.3) Obligation 5.1 does not apply to chance meetings. However, you must end such meetings as soon as possible and
must not continue such meetings at another place or time without the prior permission of the Home Office."

Obligation 19 provides that "employment" includes "self employment" for the purpose of obligation 19.
[110] By letter dated 20 October 2011 to CE's solicitors, the Home Office confirmed that CE's business in
which he sells perfume as a pedlar is employment which has been notified and he may therefore meet
individuals for the purpose of carrying on this employment under obligation 5.2(xi)). Furthermore it confirmed
that CE has permission to meet people in the course of operating his stall distributing religious material.
[111] It is clear from Mrs Hadland's evidence that the specific objective of the amendment to the control
order is not to prevent or to bring to an end as soon as possible genuine chance meetings but, rather, to
prevent arranged meetings which cannot be proved to be such in open proceedings. The question is
therefore whether the restrictions imposed on chance meetings are a proportionate means of preventing
arranged meetings. In my judgement they are not.
[112] First, the modification to the obligation is not effective to achieve that objective. The obligation read in
conjunction with the Home Office's letter of 20 October 2010 leads to the result that CE is under no obligation
to end as soon as possible chance meetings which occur when he is trading as a pedlar, at his religious stall
or whilst attending prayers at a mosque. Thus, for example, CE can speak freely to anyone (other than a
prohibited person) who comes to his religious stall, yet a similar conversation is prohibited if it takes place
away from the stall, for example if he chats with someone who approaches him in a cafÈ or a library. The
Secretary of State seeks to justify the distinction which permits CE to carry on a conversation with someone
he meets by chance at his stall because the stall is in a particular location and it is easier to monitor what he
is doing. However, I note that although the religious stall has a fixed location, the perfume business is run
under a pedlar's licence the terms of which require CE to keep moving continuously.
[113] No doubt great deference is due to the Security Service and the Home Office in respect of an issue
such as the effectiveness of an obligation imposed by a control order. Nevertheless, the situations falling
outside the obligation in respect of chance meetings, and in particular those identified above, are so
extensive that I conclude that the provision does not achieve the stated aim.
[114] Secondly, I am unable to accept the suggestion by Mrs Hadland in her oral evidence that para 5.3 is a
clarification of what the Secretary of State had understood to be the position under the original control order,
a tightening of wording. Paragraph 5.3 goes far beyond that by imposing, for the first time, obligations in
respect of genuinely chance meetings. Furthermore, although Mrs Hadland draws attention to the exceptions
to the obligations now imposed in respect of chance meetings, the residual area in which obligations are
imposed on genuinely chance meetings is extensive. This is a considerable tightening of the restrictions on
CE.
[115] In his second witness statement CE states that the obligation to bring a conversation to an end as
soon as possible and not to continue chance encounters at another place without Home Office permission
means that even the few small pieces of normality in human encounters which he has started to achieve are
now made the subject of potential criminal charges under the Prevention of Terrorism Act. His understanding
is that he cannot say more than a few words to anyone. He understands that he will effectively have to ignore
on the street all the people he has met since he has relocated including those he has met through the
mosque, his stall and his business. He is concerned that it will make it exceedingly difficult to meet anyone
new. He considers that the modification will destroy the limited social life he currently leads. Furthermore, he
expresses his concern over the impact of the modification on the operation of his business. He states that it
is not just necessary to be able to conduct lengthy conversations whilst actually completing sales; he
frequently has to rely on others such as other stall holders in order to manage his business when he leaves it

 Page 23

briefly. He also needs to develop and maintain relationships with other people working in the town centre
including, for example, Community Support Officers in order to make a success of his business. This is
necessary not only when he is making sales but at other times.
[116] In her evidence Mrs Hadland accepted that as a result of the modification CE would no longer be able
to have a conversation in a cafÈ or join in a chance game of football. Moreover if he met a person on his stall
and then saw them again in the street he would have to end the conversation as soon as possible. Mrs
Hadland also accepted that if CE has to bring conversations to an end as soon as possible it would be
practically impossible for him to obtain the information which he needs - the other participant's name and
address - in order to obtain Home Office approval to meet that person again.
[117] I accept that the prevention of pre-arranged meetings without prior approval of the Home Office is a
legitimate objective. However, in my judgement the modification imposing obligations on chance meetings is
highly intrusive on CE's private life. Furthermore, I consider that it is more than is necessary for the
attainment of the objective. For example, the Secretary of State drew particular attention in this regard to an
incident where CE had met friends from London outside the mosque and then continued the meeting in the
mosque and later at two restaurants. To the extent that the concern is to prevent CE from meeting an
individual or individuals, it would be possible to add those persons to the list of those CE is prohibited from
meeting or to require that any meeting with them take place at CE's house. Furthermore, the Security
Service is, no doubt, well placed to monitor CE's activities including apparently chance encounters.
Notwithstanding the fact that the ultimate objective of preventing CE from participating in terrorism-related
activity is of very high value indeed and notwithstanding the need to accord the decision-maker a wide
margin of appreciation, I have come to the conclusion the measures adopted are more intrusive than is
necessary for the attainment of the legitimate objective.
[118] A third difficulty with the modification is the uncertainty relating to the obligation to end a chance
meeting as soon as possible. Breaching an obligation imposed by a control order is a serious criminal
offence punishable by imprisonment. CE complains that he has no means of himself assessing and his
lawyers are unable to tell him what crosses a line between a permitted activity and a criminal offence. Mrs
Hadland was cross-examined at length as to precisely what CE is required to do in various situations which
were described to her. She expressed her view on each but, very fairly, accepted that the Crown Prosecution
Service might take a different view. She also accepted that wording such as "as soon as possible", unless it
means "immediately" is difficult because it is context specific. In the course of his submissions on the point,
Mr Moffett, responding to a question from me, accepted that the obligation to end a conversation as soon as
possible could mean to end it immediately because it would almost always be possible to do so by walking
away. If that is correct, the obligation in relation to chance meetings approaches a total ban on conversations
in chance meetings which the Home Office accepts would not be a proportionate response.
[119] I consider that the modification is unfair to CE because it fails to define with sufficient precision the
conduct which will constitute a breach of the control order and expose him to the risk of prosecution.
Furthermore, I consider that its imprecision lends further weight to my conclusions that it is not necessary for
the achievement of the objective and that it is a disproportionate intrusion into CE's private life.
[120] For these reasons I consider that the modification imposing the obligation to end chance meeting as
soon as possible and not continue such meeting at another place or time without the prior permission of the
Home Office is flawed. Consequently I have directed that obligation 5.3 should be modified to read
"Obligation 5.1 does not apply to chance meetings. However, you must not continue such meetings at
another place or time without the prior permission of the Home Office."
[121] In the light of my conclusions stated above it is not necessary to consider CE's argument that the
modification infringes his right to freedom of religion under art 9 ECHR. Here, he contends that he has a
religious duty to call people to the Muslim faith and that he does so not only by manning his stall but also

 Page 24

when he encounters people, for example in the street or on public transport. An expert report by Dr Tim
Winter of the University of Cambridge concludes that "it may be said that if the amended control order
effectively prevents CE from proselytising among the public in [the new location] . . . one of CE's fundamental
religious duties is being obstructed." I would simply observe, in passing, that the effect of modification is not
to impose a total ban on such activities. CE is free to carry on such activities from his stall.
OBLIGATION 2.2: CURFEW
[122] Obligation 2.2 in the current version of the control order provides in relevant part "You shall remain in
the residence at all times ('the curfew period') save for a period of 12 hours between 08.00 and 20.00."
[123] The last occasion on which CE sought a modification of his curfew was in July 2011 when his request
to attend evening prayers during Ramadan was granted. There was no further request to modify the curfew
until 21 October 2011, the last working day before the start of the hearing before me.
[124] On CE's behalf it is submitted that the hours of the curfew should be relaxed for the following reasons:
52

(1) He has generally complied with the curfew and when it was extended for Ramadan he
demonstrated that he would not abuse such extensions. It is said that in these circumstances
the existing restriction is shown to be unnecessary.

53

(2) Technology has moved on since the days when surveillance was dependent upon daylight.
Furthermore, now that British summertime has ended, CE's existing curfew will mean that he is
free to leave his house during four to five hours of darkness each day.

54

(3) Attention is drawn to the conditions imposed in other cases.

[125] Dealing with each of these points in turn:
55

(1) The fact that CE has complied does not undermine the need for a curfew. Similarly, the fact
that special arrangements were made during Ramadan does not mean that the normal curfew
provision is unnecessary.

56

(2) Monitoring and surveillance are likely to be more difficult in the hours of darkness and the
fact that during the winter he will not be subject to curfew for a period of four to five hours of
darkness each day is no reason to increase that period.

57

(3) Each case has to be considered on its own facts and I derive little assistance from other
cases.

[126] I note that there is no evidence from CE as to why he wishes to be out of his house in the evenings
and that he has not pointed to any particular activities or events that he would miss if the curfew period were
not altered. I accept the view that the existing hours of the curfew are necessary to permit effective
surveillance and monitoring of CE and to prevent CE from engaging in any terrorism-related activity. The
present provision is rationally connected to that objective and is no more than is necessary to accomplish the
objective. The balance drawn here between the rights of CE and the interests of the community as a whole is
a fair one.
OBLIGATION 10: REQUIREMENT FOR PRIOR APPROVAL OF ATTENDANCE AT MOSQUE
[127] The current version of obligation 10 provides:

 Page 25

"10.1 Subject to obligation 10.2, you may attend one mosque of your choosing from those within your permitted area.
10.2 Before your first visit to any mosque that you wish to attend, you must obtain approval from the Home Office. The
prior approval of the Home Office shall not be required for subsequent visits to that mosque."

[128] On 14 March 2011 CE was granted permission to attend a local mosque. A month later he requested
permission to attend Friday prayers at a local community centre, whilst continuing to attend the local mosque
on other days. This permission was refused "for purposes connected with preventing or restricting CE's
involvement in terrorism-related activity". However the Home Office indicated that it would be prepared to
consider granting permission for CE to attend other mosques within his geographical boundary. CE has not
made any further requests to attend a different mosque.
[129] CE submits that there is no good reason why he should not be able to attend the Friday prayers of his
choice. In particular he says that mainly older Pakistani and Afghani men attend the mosque which he is
allowed to attend and the language spoken is generally Urdu which he does not speak. In addition there are
very few young people. Furthermore, he submits that the Secretary of State has given no proper gist as to
why he could not attend those prayers or what real risk to national security would result.
[130] Evidence was given in closed hearing in relation to this issue. Further gisting was provided by the
Secretary of State to CE and his legal advisors. It read:
"The mosque based at the [community centre] has, amongst its attendance, a number of young individuals from an
East African background. Given the activity that the Security Service assesses that CE has been involved in, including
[as] a member of a network that has sought to recruit individuals to engage in terrorism-related activity, it is assessed
that CE could seek to use the population at this mosque to further his terrorism-related activity."

[131] The Secretary of State submits that the real challenge advanced by CE in this regard is not a
challenge to the decision of the Secretary of State on the imposition of an obligation imposed by the order
and that accordingly it falls outside the scope of the present proceedings which are brought pursuant to s
3(10) of the Act. Strictly, this is correct. CE is not here saying that the requirements for prior Home Office
approval or the limitation to one mosque are in themselves unnecessary or disproportionate. Rather, it is a
challenge to a decision to refuse permission under a provision of the control order. Nevertheless, such a
decision must be open to legal challenge and it is appropriate to consider it in these proceedings.
[132] I consider that, given CE's history, the Secretary of State has identified a legitimate objective here,
namely the need to prevent CE from recruiting among young men of East African origin. Furthermore I
consider that preventing CE from attending prayers at the named community centre is necessary for the
attainment of that objective. The Secretary of State argues that the reason for CE wanting to attend this
alternative Friday prayers is not a religious reason but a social reason and that accordingly art 9 is not
engaged. It is not necessary to decide this point because even if art 9 is engaged, this is a very limited
interference with religious observance. Even if the request were granted, it appears that CE would wish to
continue to go to his current mosque for six days out of seven. Furthermore, no explanation has been
provided as to why he does not apply for permission to attend one of the other mosques in that location. In
the circumstances, the decision of the Secretary of State is not open to challenge.
OBLIGATION 3.2: REPORTING REQUIREMENTS
[133] Obligation 3.2 of the control order currently provides "You must report in person to a designated police
station (notified to you in writing by the police on the service of this order) each day, at a time and in a
manner also to be notified to you."

 Page 26

[134] On behalf of CE it is submitted that the reporting requirements are unnecessary, especially when
considered in the light of the other restrictions to which he is subject. It is said that he has shown that he can
and will comply with reasonable requirements imposed on him. It is said that electronic tagging plus the
obligation to report to the monitoring company is sufficient.
[135] One of the legitimate objectives of the control order is to prevent CE from travelling to Somalia. The
obligation is rationally connected to that objective. The decision of the Secretary of State that reporting
requirements are necessary in addition to the other restrictions to which CE is subject is well within the
margin of appreciation allowed to her in such matters. It is not difficult to see why tagging and an obligation to
report by telephone may be considered, without more, insufficient for the attainment of the objective. The fact
that CE may have complied with the terms of his control order so far does not affect the necessity for such an
obligation or its proportionality. The balance drawn here between the rights of CE and the interests of the
community as a whole is a fair one. This is a necessary and proportionate response.
OBLIGATION 9.1: INTERNET ACCESS.
[136] Obligation 9.1 of the control order in its current form provides in relevant part:
"9.1. Subject to obligations 9.2 and 9.6 you shall not (whether directly or indirectly) use, have acquire or keep (whether
in or outside the residence) or bring or permit into the residence any of the following articles without the prior
permission of the Home Office:
(a) any equipment capable of connecting to the internet (either directly or indirectly);
. . ."

[137] At a late stage in the hearing counsel for CE suggested for the first time that there was no good reason
why CE should be denied access to the internet from a single monitored computer at his home. It is
submitted that once TPIMs come into effect, a ban on internet usage will no longer be lawful. Furthermore it
is suggested that the Security Service is well able to monitor a single internet connection and there is no
suggestion that CE has ever sought to use the internet for improper purposes.
[138] This is not a matter which has been fully canvassed at the hearing before me. In particular there is no
evidence from CE suggesting that he is particularly affected by being denied access to the internet.
Furthermore there was no cross examination of either of the witnesses called on behalf of the Secretary of
State, on this point. Given the history of CE's involvement in terrorism-related activity, I am satisfied that this
obligation is necessary to prevent CE from contacting his associates in the network. The restriction is a
necessary and proportionate means of achieving that end. In any event there is no evidence to suggest that
this obligation has had any significant impact on CE. Different considerations may apply if there is a change
in the law. That may well require the Security Service to take other measures to protect the public. However,
as matters stand I consider that the Secretary of State's decision to impose this obligation is not flawed.
ORDER.
[139] I will hear further submissions in relation to the appropriate form of order.
Judgment accordingly.