The Commissioner of the Police of the Metropolis v Ahsan

A foreign conviction for terrorist conduct may qualify as a corresponding foreign offence even where the conduct occurred in the United Kingdom and was not prosecuted here. A chief officer’s discretion to apply for a notification order is reviewable on public-law grounds, although the statutory scheme strongly favours an application where its conditions are met.

Notification requirements may breach Article 8 where their particular impact on a person with serious mental-health vulnerabilities is disproportionate to the public risk. The absence of any review mechanism is material.

The Commissioner applied under the Counter-Terrorism Act 2008 for a 15-year notification order against Syed Talha Ahsan, who had been convicted in the United States of conspiracy to provide material support for terrorism through a website. The conduct occurred principally in the United Kingdom, and no domestic prosecution had been brought.

Mr Ahsan challenged the application on statutory, public-law and Convention grounds. The issues were whether the foreign conviction qualified under Schedule 4, whether the Commissioner had lawfully exercised his discretion, and whether the proposed requirements were compatible with Articles 3 and 8 of the ECHR.

1. The United States offences were corresponding foreign offences. Schedule 4 paragraph 2(3)(a) had to be construed purposively. Parliament intended the scheme to cover serious terrorist conduct committed in the United Kingdom which resulted in a foreign conviction, even if it could have been prosecuted domestically.
2. The Commissioner had discretion whether to apply for an order, and its exercise was open to public-law challenge within the existing proceedings. Successful challenges would be exceptional because the legislation strongly favoured an application where the statutory conditions were met. The Commissioner had not unlawfully omitted relevant considerations: Mr Ahsan’s mental health, the United States sentencing remarks and the absence of a domestic prosecution were not legally relevant or so obviously material that their omission defeated the legislative purpose.
3. The notification requirements did not reach the minimum severity required for Article 3. They did interfere with Article 8 rights. Their impact had to be assessed for Mr Ahsan individually, including the undisputed evidence that his Asperger’s syndrome and recurrent depressive disorder created a serious risk of mental deterioration and attempted suicide. The absence of a review mechanism meant that the requirements would continue for 15 years regardless of their consequences. In light of the sentencing judge’s finding that Mr Ahsan posed no serious future terrorist risk, the interference was not shown to be necessary and proportionate.
4. The application was dismissed.