Secretary of State for the Home Department v LG & Ors

A review of a TPIM under TPIMA 2011 requires separate consideration of whether Conditions A, C and D were met and continue to be met. Condition A concerns the Secretary of State’s satisfaction, on the balance of probabilities, that the individual is or has been involved in terrorism-related activity. Conditions C and D require evaluative judgments about necessity and proportionality. The court must apply judicial review principles, while undertaking an intense review of proportionality. The Secretary of State may take account of the resources available to her and the demands upon them. A measure may have consequences which deter others, provided that its statutory purpose remains connected with preventing or restricting the respondent’s own involvement in terrorism-related activity. The best interests of affected children are a consideration of substantial importance, but are not paramount.

The Secretary of State imposed TPIM notices on LG, IM and JM in June 2016. Cranston J had granted permission for the notices to be issued, applying the statutory threshold that the applications were not obviously flawed. The present proceedings were reviews under TPIMA 2011 s.9.

The Secretary of State alleged that each respondent was a senior figure in Al Muhajiroun, had engaged in terrorism-related activity, and presented continuing risks connected with terrorism and radicalisation. The respondents challenged the factual basis of the notices, the necessity and proportionality of the measures, the alleged use of TPIMs for general deterrence, and the impact on their families and children. The central issues were whether Conditions A, C and D were satisfied and whether particular measures, including relocation, reporting and restrictions on religious advice, should continue.

1. Conditions A, C and D. The court reviewed each respondent separately. It concluded that the Secretary of State was entitled and, where relevant, right to conclude that Condition A was satisfied on the balance of probabilities. It also concluded that Conditions C and D were satisfied, subject to specified variations.
2. Standard of review. Under TPIMA 2011 s.9, the court reviews the Secretary of State’s decisions by applying judicial review principles. For Condition A, the judge considered for himself whether involvement in terrorism-related activity was established on the balance of probabilities. Conditions C and D involved evaluative judgments about necessity, risk and proportionality. The Secretary of State remained the primary decision-maker and was entitled to a degree of deference, particularly on predictive national-security assessments.
3. Necessity and proportionality. A measure must be more than useful, reasonable or desirable. The court must scrutinise the measure intensely and balance its adverse impact against its marginal utility, having regard to the other measures in the package. The Secretary of State could take account of her resources and competing demands. The court applied the proportionality questions identified in Bank Mellat v HM Treasury (No.2) [2014] 2 AC 700, including whether a less intrusive measure could achieve the objective without unacceptably compromising it.
4. Purpose and deterrence. It would not be lawful to impose a TPIM solely to deter unrelated third parties. Here, however, disruption of the respondents’ leadership of ALM was connected with the risk of their own future involvement in terrorism-related activity. The incidental or wider deterrent effect therefore did not make the measures ultra vires or criminal in character.
5. Children. The best interests of children were a consideration of substantial importance through the interpretation of Article 8 ECHR. They were not paramount, and other public-interest considerations could prevail. The Secretary of State was entitled to conclude that relocation remained proportionate despite its serious effects on the respondents’ families.
6. Variations and final orders. The restrictions on religious advice were too vague and broad. They had to be narrowed to advice or instruction reasonably understood as encouraging, glorifying, inducing or assenting to violence, or supporting a caliphate or ISIL. The reporting measures were varied so that personal reporting occurred on Mondays, Wednesdays and Fridays, with telephone reporting on the other days. The remainder of the measures, including relocation and the packages as a whole, were upheld. LG’s TPIM had been revoked shortly before judgment, but the review was completed to the date of revocation.

The judgment records earlier permission proceedings before Cranston J and an earlier appeal by LG concerning variation of his TPIM measures before Hickinbottom J. Those proceedings were distinct from the present s.9 reviews. The present court conducted the reviews and varied specified measures.