Commissioner of the Police of the Metropolis v Ahsan  EWHC 2354 (Admin),  MHLO 62
The Commissioner of Police of the Metropolis applied for an order to impose notification requirements for a period of 15 years on Syed Talha Ahsan under the Counter-Terrorism Act 2008. The notification order would require him for that period to attend police stations to provide, and update, information about his living arrangements and to provide details about his travel plans, for which permission can be refused; breach of the requirements is punishable with imprisonment of up to 5 years. (1) Ahsan had been convicted in the United States of providing material assistance for the Taliban, while they were harbouring Osama bin Laden, through his involvement in a US-hosted website, but he argued that this did not constitute an act which "would have constituted an offence… if it had been done in any part of the United Kingdom…" because it was in fact done within the United Kingdom. The judge decided that (a) Parliament must have intended that the notification requirements should apply to terrorist conduct committed here which results in a conviction in a foreign court, even if it could have been prosecuted here but was not; (b) by inadvertence Parliament had failed to give effect to that purpose; (c) taking a purposive approach, even assuming that all elements of Mr Ahsan's offending occurred here, the offences he was convicted of in the US were corresponding foreign offences. (2) Ashan argued that the Commissioner had failed to take into account relevant considerations and therefore the exercise of discretion to make the application was unlawful. The judge decided that: (a) since there is a discretion, its exercise should be open to public law challenge; (b) only in exceptional circumstances would this be successful, because of the strong legislative steer that, where there has been a corresponding foreign conviction and the requisite sentence has been imposed, an application should be made; (c) the public law challenge should, to avoid wasting time and money, be heard within the 2008 Act proceedings rather than by separate judicial review proceedings; (d) failure to consider the sentencing remarks, his mental health, and the fact that Ahsan had not been prosecuted here, did not render the decision unlawful. (3) The notification requirements did not meet the minimum level of severity required for a successful Article 3 claim. (4) The interference with Ahsan's private and family life was not necessary and proportionate under Article 8: (a) this was an exceptional case where there was no significant future risk; (b) the medical evidence was that that the notification requirements were likely to have a severe adverse impact on Ahsan's mental health, and despite this likelihood the requirements would continue for 15 years with no review mechanism. (5) The application was therefore dismissed.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
TERRORISM — Notification requirements — Offence committed abroad — Defendant convicted in United States of running terrorist website from within United Kingdom — Whether “corresponding foreign offence” allowing making of notification order — Defendant suffering from depressive illness — Medical evidence that need to comply with requirements of order likely to exacerbate condition — Whether order necessary and proportionate interference with defendant’s Convention right to private life — Human Rights Act 1998, Sch 1, Pt I, arts 3, 8
Commissioner of Police of the Metropolis v Ahsan
B ;  WLR (D) 362
QBD: Cranston J: 7 August 2015
The power of the court to order that a person previously convicted of a terrorism offence abroad be subject to a notification order, requiring him to notify the police of his living arrangements and travel plans for a specified number of years, was not restricted to acts committed abroad and covered a person whose acts in the United Kingdom had been the basis of the foreign conviction.
Cranston J so held in refusing, on other grounds, an application by the Commissioner of Police of the Metropolis for a notification order under section 57 of, and paragraphs 2 and 3 of Schedule 4 to, the Counter-Terrorism Act 2008 in respect of the defendant, Syed Talha Ahsan.
The defendant, a British citizen who suffered from a depressive illness, had been extradited to the United States of America where he admitted in a plea agreement to having been involved (whilst living in England) in assisting in the running of a website soliciting funds for a terrorist organisation. When sentencing him, the judge in the US District Court had accepted that he had had a limited role in the operation of the website and was himself a non-violent person with a low risk of re-offending. On his return to the United Kingdom, following his release from custody, the police had applied for the defendant to be made subject to a notification order (to which persons convicted in the United Kingdom of specified offences were automatically subject under section 40 of the 2008 Act) , as a person having committed a corresponding offence in another country, pursuant to section 57 of, and paragraphs 2 and 3 of Schedule 4 to, the Act, requiring him to provide details of his living arrangements and travel plans to the police for a period of 15 years. The defendant had resisted the application on the grounds, inter alia, that (1) section 57 and Schedule 4 applied to offences committed abroad whereas all of the acts which constituted the offences relied upon by the police had been committed in the United Kingdom and so were domestic offences, not corresponding foreign offences; and (2) there was medical evidence that the imposition of notification requirements was likely to exacerbate the defendant’s mental illness and so made the order contrary to his rights under articles 3 and/or 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CRANSTON J said, on the corresponding foreign offence point, that the context of the legislation was of terrorist offending, which could have an extra-territorial and cross-border character. Such offending might be an offence and be prosecuted in more than one jurisdiction. Parliament’s intention must have been to encompass it. The plain intention of Parliament was to ensure that those who committed serious terrorist offences, whether here or abroad, should be the subject of the notification requirements in the 2008 Act. As to the Convention rights claim, the inhuman treatment alleged to result from the effect of the order on the defendant’s condition did not meet the minimum level of severity required for a successful article 3 claim. However, the application would be dismissed on the article 8 ground. First, there was doubt whether, in the defendant’s case, a notification order was necessary or proportionate to protect the public from the risk of his engaging in further terrorist offending, given the US judge’s conclusion that he posed no serious risk of engaging in terrorism. Secondly, it was accepted that article 8 rights of a person with a mental health condition might be interfered with to a greater extent than would be the case for a person without it. The undisputed medical evidence was of serious detrimental consequences for the defendant's mental health from the imposition of the notification requirements. Once the requirements were imposed there was no review mechanism. They would continue for 15 years whatever the adverse consequences upon the defendant even if, as the defendant’s psychiatrist predicted, they led to a significant deterioration in his mental health. That likely deterioration in the defendant’s mental health meant that the interference with his article 8 rights required significantly more by way of justification if it were to be lawful. Against the background of the US judge’s findings that he did does not pose a threat, the police had not made that case.
Appearances: Tom Little (instructed by the Solicitor, Metropolitan Police) for the commissioner of police; Daniel Squires (instructed by Birnberg Peirce & Partners) for the defendant
Reported by: Colin Beresford, Barrister.
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