Commissioner of Police of The Metropolis v Haroon Aswat

Where the statutory conditions for a notification order under the Counter-Terrorism Act 2008 are satisfied, the court must make the order. The statutory scheme leaves no general scope for an individual proportionality assessment. Article 8 may arguably retain an exceptional, individualised jurisdiction, but any such jurisdiction is confined to wholly exceptional cases. Serious terrorism offences and evidence of continuing terrorist risk, particularly where mental instability increases uncertainty and risk, do not constitute such a case.

The Commissioner applied under section 57 and Schedule 4 to the Counter-Terrorism Act 2008 for a notification order against a person convicted in the United States of terrorism-related offences and sentenced to 20 years’ imprisonment. The defendant did not oppose the application, but the court was required to determine whether the statutory conditions were met.

The central issues were whether the foreign convictions and sentence satisfied the statutory requirements, whether the notification period remained current, and whether the court had any power to refuse the order on proportionality or Article 8 grounds.

1. Notification order made. The defendant had been convicted abroad of corresponding terrorism offences and sentenced to 20 years’ imprisonment. The statutory conditions in paragraph 3 of Schedule 4 to the Counter-Terrorism Act 2008 were satisfied.
2. The first condition was met. It was deemed satisfied because it had not been contested in the acknowledgment of service. In any event, paragraph 2 of Schedule 4 identified the corresponding domestic offence as actual acts done for the purposes of terrorism. There was no evidence of a flagrant denial of a fair trial.
3. The second condition was met because the sentence was imposed in 2015, after Part 4 of the 2008 Act came into force. It was immaterial that the offending occurred before commencement.
4. The third condition was met. The applicable triggering sentence was imprisonment for 12 months or more under section 45(1)(ii), and the notification period was 30 years under section 53(1)(a)(ii).
5. Under paragraph 3(6) of Schedule 4, once the conditions in sub-paragraphs (2), (4) and (5) are proved, the court must make the order. The statutory scheme is ECHR-compliant and provides no general room for an individualised proportionality exercise.
6. The court assumed, for present purposes, that Article 8 might have an independent scope in a wholly exceptional case. That jurisdiction did not arise here. The offences were very serious, there was evidence of continuing risk to national security, and the risk assessment was inherently uncertain and compounded by the defendant’s mental instability.