A. AND OTHERS v. THE UNITED KINGDOM JUDGMENT
11
unnecessary to examine the basis for its finding, but there was evidence that
“upwards of a thousand individuals from the UK are estimated on the basis
of intelligence to have attended training camps in Afghanistan in the last
five years”; that some British citizens were said to have planned to return
from Afghanistan to the United Kingdom; and that the background material
relating to the applicants showed the high level of involvement of British
citizens and those otherwise connected with the United Kingdom in the
terrorist networks. Lord Bingham continued:
“33. ... It is plain that sections 21 and 23 of the 2001 Act do not address the threat
presented by UK nationals since they do not provide for the certification and detention
of UK nationals. It is beside the point that other sections of the 2001 Act and the 2000
Act do apply to UK nationals, since they are not the subject of derogation, are not the
subject of complaint and apply equally to foreign nationals. Yet the threat from UK
nationals, if quantitatively smaller, is not said to be qualitatively different from that
from foreign nationals. It is also plain that sections 21 and 23 do permit a person
certified and detained to leave the United Kingdom and go to any other country
willing to receive him, as two of the appellants did when they left for Morocco and
France respectively ... Such freedom to leave is wholly explicable in terms of
immigration control: if the British authorities wish to deport a foreign national but
cannot deport him to country ‘A’ because of Chahal their purpose is as well served by
his voluntary departure for country ‘B’. But allowing a suspected international
terrorist to leave our shores and depart to another country, perhaps a country as close
as France, there to pursue his criminal designs, is hard to reconcile with a belief in his
capacity to inflict serious injury to the people and interests of this country. ...
...
35. The fifth step in the appellants’ argument permits of little elaboration. But it
seems reasonable to assume that those suspected international terrorists who are UK
nationals are not simply ignored by the authorities. When [the fifth applicant] was
released from prison by SIAC on bail ... it was on condition (among other things) that
he wear an electronic monitoring tag at all times; that he remain at his premises at all
times; that he telephone a named security company five times each day at specified
times; that he permit the company to install monitoring equipment at his premises;
that he limit entry to his premises to his family, his solicitor, his medical attendants
and other approved persons; that he make no contact with any other person; that he
have on his premises no computer equipment, mobile telephone or other electronic
communications device; that he cancel the existing telephone link to his premises; and
that he install a dedicated telephone link permitting contact only with the security
company. The appellants suggested that conditions of this kind, strictly enforced,
would effectively inhibit terrorist activity. It is hard to see why this would not be so.
36. In urging the fundamental importance of the right to personal freedom, as the
sixth step in their proportionality argument, the appellants were able to draw on the
long libertarian tradition of English law, dating back to Chapter 39 of Magna
Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the
Petition of Right 1628, upheld in a series of landmark decisions down the centuries
and embodied in the substance and procedure of the law to our own day. ... In its
treatment of Article 5 of the European Convention, the European Court also has
recognised the prime importance of personal freedom. ...