Secretary of State for the Home Department v LF

For the purposes of a TPIM, terrorism-related activity is deliberately defined in wide terms and need not amount to a criminal offence. Conduct which gives encouragement to terrorism is distinct from conduct which facilitates it. Encouragement may include religious or political speech, even where the speaker relies on freedom of expression or religion; those rights are qualified.

On a review under the Terrorism Prevention and Investigation Measures Act 2011, the court applies judicial review principles but must intensely scrutinise measures interfering with Convention rights. A residence requirement may be necessary and proportionate where physical separation disrupts a proscribed organisation and reduces the subject’s influence. Individual deterrence is not a legitimate TPIM purpose.

The Secretary of State imposed a TPIM notice on LF, alleging that he was a senior member of the proscribed organisation ALM, that ALM had pledged allegiance to ISIL, and that LF’s speeches, online activity and organisational roles amounted to terrorism-related activity. LF sought review under section 9 of the Terrorism Prevention and Investigation Measures Act 2011.

The central issues were whether the statutory conditions were met; whether the Secretary of State had wrongly treated encouragement as facilitation; whether the measures were necessary and proportionate; and whether the residence requirement unlawfully interfered with LF’s and his family’s rights under article 8.

1. Conditions A and B. The court found, on the balance of probabilities, that ALM continued to exist, that LF was a member and senior leader, and that he performed significant communications, logistical and financial functions for it. His speeches, considered together, endorsed ISIL’s self-declared Caliphate and encouraged travel to territory controlled by ISIL. That conduct amounted to terrorism-related activity under section 4(1) of the Terrorism Prevention and Investigation Measures Act 2011. Condition B was agreed to be satisfied.
2. Construction of terrorism-related activity. Section 4(1)(c) is not confined to conduct amounting to the criminal offence of encouragement under section 1 of the Terrorism Act 2006. The statutory language is intentionally wide. Conduct may constitute terrorism-related activity even if the relevant statements are arguably exercises of freedom of speech or religion. The court distinguished encouragement, involving words intended to persuade, from facilitation, involving practical steps which make an act easier. The Secretary of State had mischaracterised some encouragement as facilitation, but the error was immaterial because the factual case established encouragement and other qualifying conduct.
3. Conditions C and D. The Secretary of State was entitled to consider a TPIM necessary and proportionate to protect the public from a risk of terrorism and to prevent or restrict LF’s involvement in terrorism-related activity. The residence requirement disrupted ALM and removed LF from a geographical concentration of its members and potential recruits. Individual deterrence was not a legitimate purpose, but organisational disruption was.
4. Proportionality. The court gave the Secretary of State appropriate deference but applied intense scrutiny to each measure. LF’s family life and the children’s interests were considerations of substantial importance. They did not outweigh the assessed risks. Most measures were necessary and proportionate, including restrictions on association and internet access.
5. Order. The TPIM continued in force. The reporting requirement was varied from five days per week to reporting on Mondays, Wednesdays and Fridays, with telephone contact on Tuesdays and Thursdays. The religious association measure was replaced by the parties’ agreed wording.