Neutral Citation Number: [2008] EWHC 1743 (Admin)
Case No: PTA/18/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21 July 2008

Before :

MR JUSTICE SILBER
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Between :

	AE	Appellant 	
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	Secretary of State for the Home Department	Respondent	

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Owen Davies QC and Ali Naseem Bajwa (instructed by Chambers Solicitors of Bradford) for the Appellant
Lisa Giovannetti and Andrew O’Connor (on 4 February 2008) and Alan Payne (on 10 and 11 June 2008) (instructed by Treasury Solicitor) for the Respondent

Michael Supperstone QC (instructed by Special Advocates’ Support Unit) as the Special Advocate

Hearing dates: 4 February 2008 and 10-11 June 2008

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Judgment

Mr Justice Silber:
I Introduction 
1.	AE, who is subject to a control order made pursuant to the provisions of sections 2 and 3 of the Prevention of Terrorism Act 2005 (“the PTA”), appeals against a decision of the Secretary of State for the Home Department (“the Secretary of State”) made on 18 September 2007 refusing to permit him to attend the Regional College in the town in which he lives (“the specified college”) during the 2007-2008 academic year in order to undertake AS level courses in Human Biology and Chemistry.  It is common ground that the purpose of this appeal is now to permit AE to carry out this course in the 2008-2009 session.

II The Background.
2.	The circumstances leading to the imposition of the control order are set out in paragraphs 4-6 of an open judgment in this case handed down on 20 March 2008 with the neutral citation number [2008] EWHC 585(Admin) (“the March judgment”).

3.	 In paragraph 60 of the March judgment, I concluded that the Secretary of State had reasonable grounds to believe first that AE had received terrorist training and had taken part in terrorist activities; second that he was also involved in providing support for the Jihadist insurgency in Iraq and in radicalising individuals in the United Kingdom; third that he is a well-known figure in the Iraqi Kurdish community and had expressed extremist views; fourth that he has been in contact with Ansar Al Islam (“AI”) associated Iraqi Kurds and others with extremist connections and fifth that he is a leading figure in Islamist extremist circles in the town in which he lives.  Further reasons for my decision were set out in a closed judgment accompanying the March judgment.  The reasons for the need for closed judgments accompanying both that judgment and the present judgment were first that AE and his legal representatives were not served with some of the material relied on by the Secretary of State and second that they were not present at those closed hearings in which the Special Advocate has represented the interests of AE and who had also seen the material which was withheld from AE and his legal representatives.

4.	In the March judgment, I held that the renewed control orders imposed by the Secretary of State on AE as well as the procedures adopted in this court in determining applications relating to those orders did not infringe AE’s article 5 and article 6 rights under the European Convention on Human Rights (“the ECHR”).  I gave permission to AE to appeal against that order but the appeal has not yet been determined.

5.	The circumstances leading up to the present appeal are that on 12 September 2007, AE’s solicitors informed the Home Office that he had enrolled on A-level Human Biology and Chemistry courses at the specified college and which were due to begin on 17 September 2007.  On 13 September 2007, the Home Office asked AE’s representatives for evidence that the A level course which AE was to undertake did not require the use of computers that connect to the Internet.  At that time, the Home Office officials were unclear whether by attending these courses AE would be in breach of any obligation in his control order.

6.	It was then decided for national security reasons that it was necessary to ensure that AE’s access to courses was controlled by the Home Office but that his existing obligations did not achieve that end.  Accordingly on 18 September 2007, the Home Office modified AE’s control order requiring him to seek approval from the Home Office before commencing any new employment, training or course of academic study provided by third parties.  The solicitors for AE subsequently explained that contrary to the earlier request, the academic study on which AE wished to embark was not a single A-level course but rather two courses at AS level in Chemistry and Human Biology. 

7.	On 20 September 2007, the Home Office wrote to the solicitors for AE and confirmed that the Secretary of State had not agreed to AE’s requests to study AS level courses in Chemistry and Human Biology on national security grounds and stating that: 

“The Secretary of State considers that [AE] is or has been involved in terrorism-related activities.  His control order was recently renewed on that basis and the combination of obligations imposed on him are necessary to restrict or prevent the terrorist-related risk posed by him.  Attendances of AS level courses in Chemistry and Human Biology would present national security concerns relating to access to materials and opportunities to develop understanding and knowledge in areas that could be used for terrorist-related activities”.

8.	It was stated that the Home Office would be prepared to consider any future request from AE to participate on an academic course and it would not rule out any possible agreement in the future to this or other academic courses.  Indeed the solicitors acting for AE subsequently asked for permission to enrol on the ESOL English Immediate course at the same college at which he wished to study his AS levels in Chemistry and Biology.  Permission was duly given to AE to attend this course by the Home Office by a letter dated 9 October 2007. 

III The Legal background 
9.	There is no dispute about the issue which I have to determine and therefore I will set out the relevant statutory provisions in the Appendix to this judgment. It is common ground between counsel that the approach that I should adopt was that explained by the Master of the Rolls in MB v Secretary of State [2007[ 1 QB 415 at paragraph 63-65 when he stated with my emphasis added that:
“63. The object of the obligations is to control the activities of the individual so as to reduce the risk that he will take part in any terrorism-related activity. The obligations that it is necessary to impose may depend upon the nature of the involvement in terrorism-related activities of which he is suspected...

64. The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State.  That it is appropriate to accord such deference in matters relating to state security has long been recognised, both by the courts of this country and by the Strasbourg court, see for instance: Secretary of State for the Home Department v Rehman [2003]1 AC 153; Ireland v United Kingdom (1978) 2 EHRR 25.

65. Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so.  The exercise has something in common with the familiar one of fixing conditions of bail.  Some obligations may be particularly onerous or intrusive and, in such cases, the court should explore alternative means of achieving the same result.  The provision of section 7(2) for modification of a control order “with the consent of the controlled person” envisages dialogue between those acting for the Secretary of State and the controlled person, and this is likely to be appropriate, with the assistance of the court, at the stage that the court is considering the necessity for the individual obligations”.

10.	Mr. Owen Davies QC counsel for AE contends that the question to be determined in this judgment can be formulated in a way with which I am content and which is whether the Court is satisfied – making its own findings of fact and paying a degree of deference to the Secretary of State on matters relating to resources and alternative measures–whether it is necessary and proportionate in the circumstances of AE’s current control order to refuse to allow the appellant to undertake AS level courses in Chemistry and/or Human Biology at the specified college.

IV The issues
11.	In his grounds of appeal, AE contended that there was no basis for asserting that his attendance at each or both of the AS level courses would provide him with access to materials and/or an opportunity to develop understanding and knowledge in areas that could be related for terrorist-related purposes.  In any event, AE’s case is that the courses would not advance his knowledge to dangerous levels, particularly as he had studied the subjects to a higher level in the course of his medical studies in Iraq and that he also had access to textbooks, which contained the material taught in each of the AS level courses.  Reliance is placed on the evidence of the two experts called on behalf of AE who gave evidence about the knowledge which he would acquire on the AS level course.  Professor Alexander Forrest, the Honorary Professor of Forensic Chemistry at the University of Sheffield gave evidence about the Chemistry course while Dr. Alan Malcolm, who has expertise in Biochemistry and biological weapons commented on the Human Biology course.

12.	Mr. Owen Davies QC counsel for AE contends that AE is unlikely to be able to obtain any materials used in practical exercises on either course.  It is also submitted that the terms of the present control order would make it very difficult for AE to acquire the necessary materials and to prepare any dangerous pathogens or chemicals at his home whilst he remained subject to the present control orders.  In all the circumstances it is submitted that it is neither necessary nor proportionate for the order under appeal to remain in force and so the appeal should be allowed.

13.	The Secretary of State adopts as her starting point my conclusions in paragraph 60 of the March judgment that AE had (i) received terrorist training and taken part in terrorist activities as well as being involved in providing support for the Jihadist insurgency in Iraq and (ii) since arriving in the United Kingdom, he has continued to mix with Islamist extremists and has been a leading figure in Islamist extremist circles in the town in which he lives.

14.	The Secretary of State considered it to be necessary to refuse AE’s application to study these particular courses because of the knowledge, structure and practical techniques and access to chemicals and facilities that AE would receive through the proposed courses which would increase his ability to participate in or to provide support to those involve in terrorism related activity.

15.	The Secretary of State places reliance on the evidence of witness X who concluded that the practical experience that AE would obtain whilst doing each of these courses would give him the confidence to work safely with chemical and biological substances and increase his confidence and ability to produce chemical or biological substances.  By completing the proposed AS level courses, AE would then become better able as a result of the experience acquired on the course to assist in the production of chemical or biological substances and in that sense he would become a competent laboratory technician.  Her case was that there was no evidence that AE had studied medicine and this indicated the benefits that he would obtain from doing such work.  It was in conclusion submitted that the order under appeal was necessary and proportionate. 

16.	Professor Forrest, Dr. Malcolm and X were all cross examined and it is common ground that I have to make factual findings.  There was much agreement between them none of these witnesses have visited the college at which AE wishes to study and accordingly their evidence was based on the general practice at such colleges.  It became clear in the course of the evidence that the Human Biology AS course is being discontinued at the specified college but that AE now instead wishes to attend the same course but at a different, but as yet unspecified, college.  It was therefore agreed that if AE succeeds in principle on his appeal in relation to the Human Biology AS level course, I would defer making such an order permitting him to do the course until further information was supplied by AE relating to the college at which he wished to do this course so that the Secretary of State would then have the opportunity so that if she then wishes to object to the facilities at that college, there would then be a further hearing at which it could be decided if AE could be allowed to attend at the course.

17.	The case for AE is that although he wishes to do both the Chemistry and Human Biology AS level courses, if his appeal fails in respect on one of those courses, he still wishes to pursue the other course.  I will therefore start by considering whether AE had received any previous medical training and or is knowledgeable in relation to the aspects of human biology and chemistry covered in the AS level courses.  The significance of this issue is that the expert evidence adduced on behalf of AE by Dr. Malcolm and Professor Forrest was based on the assumption that AE already had knowledge of both of the subjects as he had been a medical student.  Neither of them has spoken to AE nor apparently have either of the Secretary of State’s witnesses and so they are relying on what they were told which was that AE already had knowledge of both of the subjects as he had been a medical student.

18.	 I should add that it is common ground that much of the information learnt on an AS Level course can easily be learnt from books but the grounds for not allowing AE to go on the course do not relate to these matters but as the Secretary of State explained when refusing to give AE permission to do each of these courses, she reached her decision on the basis of “national security concerns relating to access to materials and opportunities to develop understanding and knowledge in areas that could be used for terrorist-related activities”.  The appeal was concerned solely with those issues.

19.	The issues that have to be resolved are:-
a.	whether AE had received any previous medical training and/or is knowledgeable in relation to the aspects of human biology and chemistry covered in the AS level courses (Issue A) (see paragraphs 20 to 27 below);

b.	whether AE would learn matters of relevance or could he acquire items to use for terrorism related activities from attending the Chemistry AS level courses? (Issue B) (see paragraphs 28 to 36 below);

c.	whether AE would learn anything of value for the purpose of conducting terrorism related activities from studying the Human Biology AS level course(Issue C) ( see paragraphs 37  to 39 below);

d.	whether it is necessary and proportionate to impose the order precluding AE from attending either or both of the Chemistry and Human Biology AS level courses(Issue D) ( see paragraphs 40 to 55 below); and

e.	whether the article 6 rights of AE have been infringed (Issue E) (see paragraphs 56  and 57 below).

V Issue A (Has AE received any previous medical training and or is knowledgeable in relation to the aspects of human biology and chemistry covered in the AS level courses?)

20.	In his grounds for appeal AE said that the AS level in Chemistry was not going to advance his knowledge of chemicals to a dangerous level “particularly in view of the fact that he had already studied chemistry in Iraq to an equivalent or higher level”.  In his witness statement in support of the present appeal, AE said that he had been a “medical student at a medical college in Iraq” and that he had completed the first year in which he had studied Chemistry, Physics, Human Biology, Physiology, Bio-Chemistry and Pathology.  He further explained that he “had studied Chemistry and Human Biology to a higher level in Iraq than the AS level offered by the college”.

21.	In a witness statement made in reply on behalf of the Secretary of State, Ms Catherine Byrne a Senior Civil Servant at the Home Office explained that the Home Office had seen no evidence that AE had studied medicine in Iraq beyond his assertion in his witness statement.

22.	By a letter dated 9 June 2008 to AE’ s solicitors, the Treasury Solicitor on behalf of the Secretary of State explained that the AE’s uncorroborated and un-detailed account of having received medical training in Iraq was not accepted by the Secretary of State and that additional doubts had been caused by the discovery in AE’s asylum application of a signed statement provided with the assistance of an interpreter in which AE explained that he had been a student in a medical institute studying “community medicine”.

23.	For that reason, it was pointed out in this letter that it was and that it remained open to AE to address the Secretary of State’s concerns by giving oral evidence (which could be limited by a direction that any cross examination in respect of it would be limited to that point) or providing evidence about the study and training that AE claims to have undertaken with relevant details or taking other steps to provide some corroborating documentary evidence.

24.	No further evidence has been adduced by AE and no explanation has been given for that failure even though AE was present at court on 12 June 2008 for the first day of the adjourned appeal.  I then considered whether I could give weight to his assertion that he had had this previous experience by reason of the fact that he was an Imam to the Iraqi community in the town in England in which he lives with the result that he should be regarded a religious leader and as a man of God.  I concluded that as I explained in paragraph 58 of the March judgment, AE had been dishonest in a number of respects with the consequence that he is not entitled to any presumption that as a religious leader and a man of God that he was a man of integrity and good character.  Of course AE’s dishonest conduct does not demonstrate an involvement in terrorist activities and I do not regard it as such.

25.	It is striking that AE has failed to respond to the invitation referred to in paragraph 22 above to respond to the letter from the Treasury Solicitor to give any details of his studies in Iraq and significantly he has also failed and continues to fail to explain why he has not responded.  This suggests that what he has said about his previous medical and scientific studies is untrue especially as I cannot think of any reason why if AE had done the previous medical course, he would not give some further details.  Thus it follows that I must reject the contention of AE that he had undergone any medical training or any other training which gave him the knowledge of a first year medical student or which meant that he already had the knowledge which he would also obtain by pursuing the AS level courses in Chemistry and Human Biology.  This means as I have explained that his experts, who were Professor Forrest and Dr. Malcolm, have through no fault on their part prepared their evidence on a false basis.  In considering this issue, I have not overlooked Mr. Davies’ submission that the appeal does not depend on the extent to which AE has previously pursued medical studies in Iraq but the evidence of AE’s experts does and that is which is why I have considered it.

26.	I should add for the purpose of completeness that after I reached that conclusion , I came across an authority which had been referred to in the Treasury Solicitor’s letter of 9 June 2008 which was Secretary of State for the Home Department  v E [2007] HRLR 472 in which Beatson J applied the approach of Sullivan J sitting in SIAC in S v Secretary of State (SC/25/2003- 27 July 2004) in which the statements setting out the case against S were substantially amended following the rule 38 process (which is equivalent to the rule 29 process under the PTA) and extensive further particulars were thereby provided to S.  The first statement was served on 13 February 2004 and the fuller disclosure was made on 30 June 2004. Sullivan J, delivering SIAC's judgment, explained that a person who has been confronted with generalised assertions which he has answered to the best of his ability, and who then discovers that his appeal has been dismissed on the basis of material presented in closed session may be entitled to feel aggrieved.  Where, however, the person has before him a great deal of open material to which he could have responded, had he chosen to do so, but did not do so, the position is different because: 
"31. While we do not draw any adverse inference from S's failure to give evidence or otherwise participate in the hearing of his appeal, we do not feel able to place any weight upon the general denials of guilt, and the bald assertions of innocence, contained in the representations submitted on his behalf. We have to determine his appeal on the evidence and we are left with the position that there has been no challenge by way of evidence, cross-examination or submission, to the open material produced by the respondent."

27.	In the light of the Treasury Solicitor’s letter of 9 June 2008 to which I referred in paragraphs 22 and 23 above this principle would provide an additional reason for not accepting AE’s contention that he had previously studied medicine.

VI  Issue B (Would AE learn matters of relevance or could he acquire items to use for terrorism related activities from the Chemistry AS level course?)

28.	Mr Owen Davies said that Professor Forrest was of the view that any practical experience gained at AS level in the handling of dangerous chemicals was of negligent or marginal value to a terrorist and in any event because of the security in which chemicals were stored AE “simply could not acquire any dangerous pathogens”.  It is also said by Mr Davis that whilst some or all of the chemicals required to make an improvised explosive device might lawfully and be more easily obtained by somebody doing an AS level course, the Secretary of State has not suggested that AE presents a risk of bombing public places in the United Kingdom.  His final submission is that even if AE did present a terrorist attack, it is difficult to see how AE could acquire the necessary materials and prepare any dangerous chemicals at his home whilst subject to the present control order.

29.	Professor Forrest’s approach to his written report was that “an important factual element in the case is the degree of knowledge of chemistry already possessed by AE” (paragraph 47).  Neither of the experts saw or spoke to AE and were therefore relying on information communicated to them to the effect that AE had previously completed a first year course in medicine but as I have explained I do not consider that to be correct.  This means that a number of matters set out in Professor Forrest’s report are through no fault of his no longer valid.

30.	Professor Forrest explained that there are books available which contain material for potential terrorists as they provide information on the clandestine production of explosives and chemical weapons.  He also referred to the explicit instructions for the manufacture of the explosive TATP using hydrogen peroxide, acetone and a small amount of concentrated sulphuric acid which can be obtained on the internet but Professor Forrest explained that it would require some knowledge of good laboratory practice to successfully and safely follow the instructions.  He points out that the purpose of the skills learnt on the AS level course is what is described as “synoptic assessment” and which is the important ability to integrate the knowledge taught and then to apply it in practice.  Professor Forrest concludes that “a person who has acquired such skill would be more likely to be able to follow successfully the instructions for the production of clandestine chemical weapons and explosives in the sources that I have outlined than a person who did not have those skills” and he regards this skill as the most significant aspect of the AS level course.

31.	Another conclusion of Professor Forrest which shows the importance of the synoptic assessment skills learnt from the AS course is that:-
“I would say that any person who was  intellectually capable, that has had education that enhanced his or her synoptic assessment skills and was motivated would be more likely to be able to successfully produce, for example, a bomb, by following written instructions that(sic) would a person who was motivated only”.

32.	The importance of such skills was explained by Professor Forrest who stated not surprisingly that it was very dangerous to produce explosives because of the risk that the person or persons producing them would be injured or killed.  Professor Forrest’s view was that somebody who had completed the AS level course in Chemistry and had benefited from the practical training and experience would have more confidence to perform the task. In consequence, he or she would be less likely to injure themselves than somebody who had not done the course.

33.	Witness X who is a security service officer with much expertise on chemical and biological related threats gave similar  evidence as he explained that, by attending either AS level course, in which there is a heavy emphasis on students carrying out practical work, students are likely to become familiar with a wide range of laboratory equipment, to gain significant practical experience as to how to work safely with chemicals and biological substances and thereby acquire increased confidence and ability in producing chemical/biological substances. X considered that the training and experience gained on such courses could provide anyone involved in terrorist activity with the confidence and skills to safely and effectively follow instructions on the production of chemical devices and toxins. Such students would become better able, due the experience acquired on the course, to successfully follow instructions from others and/or to pass on practical advice to others who wish to attempt to produce chemical/biological substances.  X stated that without this practical experience, he considered it unlikely that a person would successfully manage to grow biological cultures or safely make dangerous chemical substances.  I accept his evidence.

34.	I therefore conclude that a factor of great importance on this appeal is that it is a great deterrent and a crucial source of concern to those who might wish to handle explosives that there is a risk that they might be killed or injured in producing explosives.  So anybody who has learnt how to handle explosives or has confidence in doing so would be useful as an instructor to others wishing to prepare explosives or in preparing explosives himself.

35.	Apart from gaining crucial expertise and confidence in handling explosives, there is another matter of concern about what benefits could be obtained for terrorist-related activities from the Chemistry AS Level course and that relates to access to materials.  Professor Forrest also accepted that chemicals such as concentrated sulphuric acid were not readily obtainable and that only small quantities of it were needed to act as a catalyst in order to make sufficient quantities of explosives to create “a loud bang” which he subsequently explained meant destroying a tube train.  I also accept the evidence of witness X that students on AS level Chemistry courses would carry out their work using white coats and many of those coats would belong to the student who could easily slip a small container of concentrated sulphuric acid into his or her white coat and remove it.  No evidence was given to show that students were or are routinely searched leaving the premises or that any efficient and effective tests were carried out to ascertain if any chemicals had been removed by students.

36.	Thus my conclusion is that by doing the AS level Chemistry course AE would be in a stronger position to produce or to assist in the production of explosives than somebody who had not because first he would have been told on the course as to how to handle explosive substances, second he would have more confidence in doing it than somebody who had not done the course and third he would have access to and could readily obtain and remove concentrated sulphuric acid which is a vital ingredient of many explosive devices and which witness X had said was not easily available.

VII Issue C (Would AE learn anything of value for the purpose of conducting terrorism related activities from studying the Human Biology AS level course?) 

37.	The case for AE was that any practical experience gained at AS level in the Human Biology course relating to the handling of pathogens was of negligible or marginal value to a terrorist and that in any event in the light of the terms of the control order, it was difficult to see how AE could acquire the necessary materials and prepare any dangerous pathogens at his home whilst subject to the control order.

38.	Dr Malcolm accepted that he had relied extensively on AE’s previous medical experience when discounting this risk in his written report but as I have explained in section V above that assumption is not correct.  Dr Malcolm’s evidence was that any skills developed as a result of the practical aspect of the AS Human Biology course were of little value without access to dangerous bacteria which were hard to come by.  Dr Malcolm did implicitly accept that the skills acquired in the course would be useful in developing bacterial matter because  such dangerous bacteria could be obtained from certain farm animals and that there was a risk of obtaining it from abroad.

39.	As I have explained in paragraph 33 above, witness X stated that without practical experience, he considered it unlikely that a person would successfully manage to grow biological cultures.  X also considered that the training and experience gained on such courses could provide anyone involved in terrorist activity with the confidence and skills to safely and effectively follow instructions on the production of toxins.  In the light of his evidence and that of Dr. Malcolm, I am satisfied that by doing the AS level Human Biology course AE would be in a substantially stronger position to produce or to assist in the growth of pathogens than somebody who had not because first he would have been told how to handle and produce such pathogens and second he would have more confidence in doing it than somebody who had not done the course in handling and producing pathogens.  These pathogens are and can be very dangerous and one such culture is anthrax which can be obtained, cultured and disseminated as a powder.  X explained not surprisingly that some biological agents are of concern to the United Kingdom Government because of their potential terrorist use and some of them (including anthrax) are listed in Schedule 5 of the Anti-Terrorism Crime and Security Act 2001 as amended in 2007 which provides a system of control.

VIII Issue D. Is it necessary and proportionate to impose the order precluding AE from attending either or both of the Chemistry and Human Biology AS level courses?

40.	At this stage it is now necessary to appraise all the evidence bearing in mind that while the Secretary of State is entitled to some deference, the courts have an obligation to appreciate and to respect the importance of the rights of AE especially to receive an education.

41.	It is necessary therefore to attach importance to the circumstances in which AE is living because the greater the actual control of his activities imposed by the order the less likely it is that he can be involved in terrorist-related activities.  The starting point has to be the terms of the control order now in force and which is set out in Part 1 of the Appendix of the March judgment save that first significantly the requirement for AE to obtain permission for visitors to see him during non-curfew hours as set out in paragraph 6.1 of that order was removed as I explained in paragraph 101 in the March judgment and second the length of the curfew was extended from 14 to 16 hours as I explained in paragraphs 103 and 104 of the March judgment.

42.	The features of the present control order relevant to this appeal are first that AE is subject to a 16 hour curfew, second that a police officer or other authorised person can at any time enter and search his residence, third that the authorities have installed overt monitoring equipment, such as a dedicated telephone line, to ensure that the reporting obligations under the order are complied with, that AE cannot permit any person to enter his residence without the prior agreement of the Home Office during curfew hours save for a very limited number of categories.  Furthermore AE is not permitted outside the residence to meet any persons by prior arrangement other than with the approval of the Home Office or to attend pre-arranged meetings or gatherings at the mosque.

43.	It is clear that these terms of the control order greatly limit opportunities for AE to produce harmful chemicals or pathogens but it cannot be assumed that he cannot think of ways of passing on information and material although this might be a risky manoeuvre.  He can, of course, talk to people who he meets in the street but not by prior arrangement.  In addition the need for visitors to have the consent to visit the residence only applies during curfew hours and so he can receive visitors outside those periods.  I consider that in spite of the terms of the control order AE would have limited – but still some opportunities either to pass on information relating to the production and handling of explosives and pathogens or to use it himself.

44.	The second factor to take into account are the findings in paragraph 60 of the March judgment are that the Secretary of State had reasonable grounds to believe that AE had received terrorist training and had taken part in terrorist activities; that he was also involved in providing support for the Jihadist insurgency in Iraq, and in radicalising individuals in the United Kingdom; that he is a well-known figure in the Iraqi Kurdish community and had expressed extremist views; that he has been in contact with AI associated Iraqi Kurds and others with extremist connections; and that he is a leading figure in Islamist extremist circles in the town in which he lives.  This is an important factor and it shows reasons for there to be concerns about AE’s activities and the need for them to be carefully scrutinised.

45.	A third factor of significance is that on 28 September 2006 an audio statement from Abu Ayyub Al-Masri otherwise known as Abu Hamz Al-Muhajir the leader of Al Qaeda in Iraq had posted a message on the Internet which focussed on support for the jihad and it announced interest in and sought experts with Chemical, Biological, Radiological and Nuclear weapons.  Al-Masri called for scientists and explosive experts to travel to Iraq to experiment with unconventional “dirty” and “biological” weapons against the United States based there.  He said that the Mujahidin in Iraq was in “dire need” of chemists and physicists, experts in electronics, nuclear scientists and explosive experts and invited them to join the jihad (namely the holy war) against the West.

46.	This request for assistance is very relevant to his appeal as there has been evidence that AE has links to Al Qaeda in Iraq and thus the security service could not rule out the possibility that AE might seek to acquire additional and up to date knowledge of the theory, techniques and practical elements including access to chemicals, facilities and equipment of Chemistry and Human Biology for terrorism-related purposes.  In my view this call for scientific information to be used in the holy war against the West is significant.  

47.	A further and obvious factor in favour of concern about AE carrying out either or both the AS level courses is that the use by a terrorist of the practical experience learnt on those courses to produce explosives or pathogens could lead to a substantial loss of lives.  It requires relatively small amounts of either to cause loss of life and damage to property.  It will be recollected that the bombs which caused so much loss of life on 7 July 2005 were created by individuals in their own homes.  There is no suggestion that AE was involved with those events but they show how much damage can be caused by such bombs by people who have the expertise and confidence to produce dangerous items.

48.	I am conscious as was explained by the Master of the Rolls in MB of the need to explore alternative means of achieving the results sought by AE which is to study medicine.  I have concluded that AE is incorrect when he says that has studied “Chemistry and Human Biology to a higher level in Iraq to a higher level than the AS Level offered by the College”, but I must consider the position if that conclusion is incorrect to see if there are alternative ways in which he could study medicine.

49. One such alternative means was described by Professor Forrest who said that AE could apply for one of those medical courses for which previous AS level qualifications in either or both Human Biology and Chemistry were not required if the candidate had other relevant qualifications and if he or she did well in the United Kingdom Clinical Aptitude Test.  He himself says in his witness statement that he had been advised by the specified college that an alternative to taking the AS Level in Chemistry and Human Biology he could take a course called IELTS (International English Language Testing System) and then apply to University.  So I conclude that if AE has previously “studied Chemistry and Human Biology to a higher level in Iraq to a higher level than the AS Level offered by the College”, then there are other ways in which he could obtain a place to study medicine in the United Kingdom other by studying either of both of the two AS Level courses. 

50.	 If as I believe to be the position, AE had not previously studied Medicine or Chemistry and Human Biology to a higher level in Iraq to a higher level than the AS Level offered by the College, then I would have great doubts about his motives for studying those subjects now.  The reason for that is his alleged stated purpose for doing the course was to continue his medical studies which were abandoned because of “my personal difficulties in Iraq” and that this reason would then have been shown to be dishonest. This would raise serious doubts about the genuineness of his expressed motive for doing these courses and suggest that he has an ulterior motive.  I consider that the likely motive in the light of my findings in the March judgment which I have set out in paragraph 3 above would be a wish to use the information gained on such courses for some form of terrorist purposes which might be to teach others how to produce explosives or pathogens or to do so himself especially in the light of the call for help from Al Qaeda in Iraq to which I referred in paragraph 45.  AE sought to start course in the next academic year after this call for help was received.

51. 	As I have explained in paragraph 10 an issue to be determined on this appeal is whether the Secretary of State’s action in refusing to allow AE to do both or either of these AS level courses was proportionate.  Applying with appropriate amendments, the very well-known proportionality tests set out De Freitas v Permanent Secretary of Ministry of Agriculture [1999] 1 AC 69, 80 C-H, I conclude that:
(a) the objective of the Secretary of State in seeking to prevent or restrict involvement by AE in terrorism related activity is sufficiently important to justify limiting the right of AE to education;

(b) the decision by the Secretary of State in refusing to allow AE to do these courses was rationally connected to the objective and was not based on arbitrary, unfair or irrational considerations.  There was no cogent contention to the contrary; and

(c) the decision of the Secretary of State refusing consent was no more than was necessary to accomplish the objective of seeking to prevent or restrict involvement by AE in terrorism related activity.  As I have explained AE contends that the “primary” purpose for him in doing these two AS Level course in the words of his witness statement “was an effort to start on the ladder to my medical studies”.  In paragraph 49 above, I have explained that if AE had studied, as he contends was the case, “Chemistry and Human Biology to a higher level in Iraq to a higher level than the AS Level offered by the College”, there would be alternative ways in which he could be admitted to study Medicine at a university in the United Kingdom.  If AE’s contention is incorrect, this would raise very serious doubts about his motive for wishing to study medicine as I have explained in paragraph 50 above.

52.	Bearing in mind the deference owed to the Secretary of State I have come to the conclusion that the factors in favour of dismissing the appeal outweigh those in favour of those allowing it because in relation to the issue which I have to consider I am satisfied – making my own findings of fact and paying a degree of deference to the Secretary of State –that it is necessary and proportionate to refuse to allow the appellant to undertake AS level courses in Chemistry and Human Biology.

53.	I should add that if I had been in any doubt of whether to reach that conclusion (which I am not) I would have also reached it on account of the matters set out in the accompanying closed judgment.

54.	Until now, I have been considering the position if AE does both AS level courses and I must now consider if a different result would be reached in respect of an appeal to do either the Human Biology or the Chemistry course.  I accept that the ability of AE to become involved in terrorist-related activities would be reduced if he could do just one of those courses but the risk would still be there.  Nevertheless, there would still be a risk because as I have explained which would mean that I am satisfied – making the relevant  findings of fact and paying a degree of deference to the Secretary of State – it is necessary and proportionate to refuse to allow the appellant to undertake AS level courses in either Chemistry or Human Biology.  So I would dismiss an appeal on that basis.

IX  Issue E.  Whether the article 6 rights of AE have been infringed?

55.	There have been a number of hearings relating to whether  AE’s Article 6 rights have been infringed because of the use of closed material and what further disclosure should be made to AE.  In consequence of those hearings the Secretary of State disclosed additional amounts of additional material. AE has called two experts.  As I have found that the appeal must be dismissed on the basis of the open material, AE’s Article 6 rights have not been infringed in respect of this material which is known to the appellant.

56.	As I have explained in paragraph 53 above, there is additional material set out in the closed material on which I have relied as supporting my conclusion to dismiss the appeal.  Mr. Michael Supperstone has not disputed that AE’s article 6 rights have not been infringed because this material has not been disclosed. I explain in the closed judgment why I have concluded that AE’s article 6 rights have not been infringed.

X Conclusion
57.	I therefore dismiss AE’s appeal and also hold that AE’s article 6 rights have not been infringed.