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IN THE HIGH COURT OF JUSTICE Case No:

ADMINISTRATIVE COURT

BETWEEN: THE QUEEN

on the application of

(1). PAMELA GELLER First Applicant

(2). ROBERT SPENCER Second Applicant

- and -

THE SECRETARY OF STATE FOR HOME DEPARTMENT

Respondent

______________________________________________

GROUNDS FOR JUDICIAL REVIEW

______________________________________________

Introduction

1. The Applicants, respected authors and human rights campaigners, apply

for judicial review of a decision of the Secretary of State seeking to exclude

them from the UK on the basis that their views may cause offence to

Muslims and “may lead to inter community violence” in the UK.

2. The tradition of English liberty, which runs through the rule of law and

political culture, is a deep one. It is traceable to John Milton’s

Areopagitica, published in 1644, through to Thomas Paine’s The Age of

Reason and John Stuart Mill’s On Liberty. The essence of it is best

encapsulated by Mill when he wrote: “If all mankind minus one, were of

one opinion, and only one person were of the contrary opinion, mankind

would be no more justified in silencing that one person, than he, if he had

the power, would be justified in silencing mankind”. It is with this in mind

that the Court is invited to consider the decision to exclude in the present

case.

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3. The decision to exclude is taken on the basis of two decision letters that are

dated 25/6/2013. These rely on the unacceptable behaviour policy. This lists

as unacceptable the expression of views which may lead to inter community

violence.

4. The Unacceptable Behaviours Policy is based on the so called “Prevent”

scheme designed to prevent the proliferation of terrorist ideologies in order

to prevent terrorist acts. On the Secretary of State’s construction, it in effect

permits terrorist groups to induce the Secretary of State to exclude

individuals such as the Applicants from entering the United Kingdom

merely by stating frequently that their views or websites are Islamophobic.

5. The application raises important issues. It is the first to challenge the

legality of the Government’s Unacceptable Behaviours Policy in excluding

foreign nationals. In modern times, it is the first to raise human rights

accountability of the Secretary of State for her actions in excluding US

nationals.

6. The previous cases heard include Geert Wilders v Secretary of State [2010]

Imm. A.R. 269 (a case involving an EEA national, the exclusion of a Dutch

MP who was successful in appealing the exclusion); Naike v Secretary of

State [2012] Imm. A.R. 381 (a non EEA Indian national who was

unsuccessful in overturning the ban); a more historic case called R v

Farrakhan [2002] QB 1391 (a US national excluded from the UK, where

violent protests were already taking place leading to the arrest and charge of

three members of the Nation of Islam).

7. The Applicants intended to visit the UK in order to visit the English

countryside and meet individuals here in the UK. Both Applicants intended

to lay a wreath at the site of Drummer Lee Rigby, a soldier whose brutal

murder by an Islamic extremist was televised extensively worldwide. They

intended to do so as a symbolic gesture against religious extremism and

violence. The Applicants’ exclusion has been published worldwide. The

present claims are plainly of overwhelming public importance in relation to

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issues concerning the legality of the Secretary of State’s policy, including its

construction, and impact on civil liberties. In R (Gentle) v Prime Minister

[2006] EWCA Civ 1078 at [23] the Court of Appeal granted permission to

proceed by way of judicial review on the basis of the importance of the issues

alone. The Court is invited to do the same in the present case and/or to

grant permission on the basis that the Applicants have real prospects of

success.

8. The grounds for judicial review relied upon in summary are as follows:

(i). The decision to exclude was an abuse of power. The decision to exclude

was capricious, arbitrary, and based upon an improper motive.

(ii). The decision to exclude was unlawful and/or ultra vires.

(iii). The decision was erroneous in law.

(iv). The Applicants had a legitimate expectation that they would be allowed

to enter and express their views in the UK pursuant to the government’s

“Prevent” policy. The decision to exclude was not, therefore, permissible.

(v). The decision to exclude was arrived at through a procedurally improper

manner, failed to take into account and/or weigh the relevant facts and/or

took into account irrelevant facts without further enquiry. The decision did

not take into account the Applicants’ views regarding the exclusion.

(vi). The decision was contrary to Articles 9, 10, 11, 14 and 17 of the ECHR as

set out in schedule 1 to the Human Rights Act 1998 (“HRA”).

(vii). The decision was irrational and/or Wednesbury unreasonable.

9. The two claims are brought together, though the views expressed by each

Applicant are separate, and the decision letters are addressed separately to

each Applicant.

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10. These grounds are accompanied by evidence contained in the witness

statements of the First Claimant, Ms Pamela Geller, and Mr Robert Spencer,

the Second Applicant dated 6/9/2013. [Tab 5; and 6].

Background

(1). Ms Pamela Geller

11. The First Applicant is an internationally recognised writer and human rights

activist. She is the founder, editor and publisher of Atlas Shrugs.com. She is

the President of the American Freedom Defense Initiative (AFDI) and Stop

Islamization of America (SIOA). She has published innumerable books and

articles on the subject of Islamic extremism. She has led awareness

campaigns in relation to the same in Israel, US and the Europe. Notably, she

led the fight to protect Rifqa Bary, a former Muslim (a teenage apostate)

from Islamic extremism. She did this by preventing her from being forcibly

returned to her Muslim parents. Rifqa Bary fled from her parents in fear for

her life.

12. The First Applicant has made appearances on news media around the world.

Her articles and writings have been published in newspapers worldwide the

Guardian, the Los Angeles Times, Fox News, The Washington Times,

Haaretz, Breitbart, Human Events, The American Thinker, Newsmax,

Hudson NY, Pajamas Media, Israel National News, World Net Daily,

FrontPage magazine, New Media Journal, and Canada Free Press.

13. The First Applicant has received innumerable awards for her work including

the following:

(i). In October 2011, the United States Marine Corps presented her with the

flag flown on September 11, 2011 over Camp Leatherneck, "amid the

battlefields of Afghanistan during decisive operations against enemy forces

in Helmand Province."

(ii). The Guardian of Liberty award from the New York N.C. Federation of

Republican Women.

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(iii). The American Patriot of the Year 2013 awarded to her by the Queens

Village Republican Club.

(iv). The 2012 Liberty Award from the Independence Hall Tea Party

Association.

(v). The Annie Taylor Award for Courage in 2010 from the David Horowitz

Freedom Center.

(vi). The Queen Esther Award for Jewish Heroism awarded to her by the

Creative Zionist Coalition.

The First Applicant has published books, all of which are freely available here

in the UK, for which she has received impressive reviews including the

following:

(1). The Post-American Presidency: The Obama Administration’s

War On America. The Foreword was written by John Bolton, former US

Ambassador to the United Nations. Brad Thor, the Times best-selling author

of Foreign Influence, described this book as “Sheer brilliance”. The book has

been reviewed by other best-selling authors who have described it as “must

read”1 and an “excellent book”.2

(2). Stop the Islamization of America: A Practical Guide to the

Resistance (WND Books, September 6, 2011). This book has been

reviewed by Dr. Wafa Sultan, former Muslim and author of “A God Who

Hates”. She states “This book fills an urgent need. Pamela Geller has

brought together all her experience fighting the stealth jihad and

Islamization to create the first practical guide to stopping the spread of

Sharia and Islamic supremacism in America. Every patriot, everyone who

loves the freedom we enjoy in America, must get this book and use it to

equip themselves for the great struggle that lies ahead.” Others have

reviewed the book and described it as follows:

1 Andrew C. McCarthy, National Review legal affairs editor and bestselling author of Willful

Blindness: A Memoir of the Jihad)

2 David Horowitz, conservative activist, co-author of Destructive Generation and author of Radical Son).

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“Geller is a forceful and courageous voice, providing in this powerful book a

democratic defense to fight the stealth jihadist threat against civilization”.3

“An essential handbook for every freedom fighter.”4

It is important to note that, in this book, the First Applicant provides advice

to activists. She condemns incitement of hatred or violence as follows:

“Do not say things or chant slogans that can be construed as racist or

inciting to violence… Use your common sense: don’t say anything that

contradicts your own most cherished beliefs and principles. Remember

always that you are fighting for human rights and human dignity. This

doesn’t mean that we say, or that we believe, that we hate Muslims or want

to kill all Muslims – contrary to the mainstream media’s caricature of our

position” (pp44-5). [Tab 5, para 14, 192].

(3). Freedom or Submission: On the Dangers of Islamic

Extremism and American Complacency (E-book, Create Space

Independent Publishing Platform, April 3, 2013).

14. Contrary to the assertion in the Secretary of State’s refusal letter dated

25/6/2013 (Tab 2), the First Applicant does not operate a website called

Jihad Watch. She operates the Atlas Shrugs website. On the Atlas Shrugs

website, she has published her comments on Islam. These include the

following comments, which are readily available in the UK, but selectively

included in the refusal letter, dated 25/6/2013, in text marked bold below:

Comment 1

1. “Obama would speak only about ‘al-Qaeda.’ Al-Qaeda is a

manifestation of devout Islam. Just as Hamas, Hezb'allah, al-

Muhajiroun, The Armed Islamic Group, the Moro Islamic Liberation Front,

MILF, CAIR, ISNA, Fatah, the Muslim Brotherhood, al-Gama'a al-Islamiya,

3 – Bat Ye’or, eminent historian, author of eight books, including Eurabia: The Euro-Arab Axis; Islam and Dhimmitude: Where Civilizations Collide; The Decline of Eastern Christianity Under Islam: From Jihad to Dhimmitude; and The Dhimmi: Jews and Christians Under Islam.

4 Robert Spencer.

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the Armed Islamic Group of Algeria... It is Islam. And by refusing to name

the enemy, Obama has perpetrated yet another devastating attack on

American security.”

This quote is explained by the First Applicant, as part of her fight against

extremism, as follows in her witness statement:

“This was referring to the fact that al-Qaeda makes recruits among

peaceful Muslims and justifies its actions by appealing to Qur’anic teaching.

It presents itself as the true manifestation of devout Islam, and moderates

have as yet mounted no effective rejoinder to that. Thus for Obama to limit

the fight to al-Qaeda when other Muslim groups share the same views is

short-sighted. Muslims who genuinely reject the al-Qaeda version of Islam

need to confront al-Qaeda’s appeal to the devout much more honestly and

thoroughly than they have thus far”. [Tab 6, 196].

Comment 2

“The conquest of Israel would indeed be nothing more than the conquest of

the good. That piece of beach, that narrow strip of land, produces no oil,

gold, or any other valuable resources. It, however, holds the Jewish people.

The Islamic world knows that getting control of that tiny patch of land is

meaningless; it is getting the Jew out that will be the victory for the forces

of evil. However, if the Jew dies, the Muslims will die as well: their

survival depends on their constant jihad, because without it they will lose

the meaning and purpose of their existence. And so it goes. It is a never-

ending struggle. And it is one in which the lines are drawn quite clearly.

All decent people, all free people, whether or not they are religious, must

stand with Israel. It is a matter not only of the survival of the Jewish

people, but of the survival of all free people, and, indeed, the principle of

freedom in the world.”

The First Applicant has explained this quote in her witness statement as

follows:

“This quote was from an article… about the jihad against Israel referring to

Hamas and Hizballah. The reason for their existence is solely for the

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destruction of the Jewish State. Without that objective, they cease to exist.

As is clear from the context, the phrase “However, if the Jew dies, the

Muslims will die as well” was referring specifically and solely to the jihad

groups arrayed against Israel, not to all Muslims”. [Tab 6, 196].

(2) Mr. Robert Spencer

15. The Second Applicant is an internationally recognized author and a human

rights activist. He is the director of an organization called Jihad Watch and

Associate Director of the American Defence initiative. He wrote his first of

twelve books about Islam after the 9/11 attacks, and is currently working on

a book about the Arab Spring and its aftermath. He has since led seminars

on Islam and Jihad for official US Government bodies. These include: the

United States Central Command, United States Army Command and

General Staff College, the U.S. Army’s Asymmetric Warfare Group, the FBI,

the Joint Terrorism Task Force, and the US intelligence community. The

seminars were hosted by, among others, former FBI agent Mr. John

Guandolo and U.S. Army Colonel Herman Nordbruch.

16. The Second Applicant is widely published. His publications include the

following books, freely available in the UK, for which he has received

impressive testimonials as outlined in his witness statement: Islam

Unveiled: Disturbing Questions About the World's Fastest Growing Faith

(Encounter, 2002); Onward Muslim Soldiers: How Jihad Still Threatens

America and the West (Regnery, 2003); Inside Islam: A Guide for Catholics

(with Daniel Ali, Ascension, 2003); The Myth of Islamic Tolerance: How

Islamic Law Treats Non-Muslims (Prometheus, 2004); The Politically

Incorrect Guide to Islam (and the Crusades) (Regnery, 2005); The Truth

About Muhammad (Regnery, 2006); Religion of Peace? Why Christianity Is

and Islam Isn't (Regnery, 2007); Stealth Jihad: How Radical Islam is

Subverting America without Guns or Bombs (Regnery, 2008); The

Complete Infidel's Guide to the Koran (Regnery, 2009); The Post-American

Presidency: The Obama Administration's War On America (with Pamela

Geller, Simon & Schuster, 2010); Did Muhammad Exist? An Inquiry Into

Islam's Obscure Origins (ISI, 2012); and Not Peace But A Sword: The Great

Chasm Between Christianity and Islam (Catholic Answers, 2013).

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17. The testimonials he received are more fully stated in his witness statement,

but include the following:

1. Not Peace But a Sword. “Robert Spencer is a careful observer of

Islam and a courageous voice on behalf of Christians. In his new book,

Not Peace But a Sword, he shows Catholics how to take Islam

seriously without falling into alarmism, hatred, or bigotry. He

provides a needed corrective to the misinformation and

disinformation propagated by so many media today.” -- Scott Hahn,

author of The Lamb's Supper, Understanding the Scriptures and many

other books.

2. Did Muhammad Exist? “The great service Spencer provides goes

beyond popularizing the critical study of one of the world’s largest

religions in order to advance our knowledge and establish historical

reality”. Bruce Thornton, Research Fellow at Stanford’s Hoover

Institution and Professor of Classics and Humanities at the California

State University.

“Robert Spencer has displayed brilliant scholarship”. Bat Ye’or,

author of The Decline of Eastern Christianity under Islam.

3. The Complete Infidel’s Guide to the Koran. “For 1,400 years

Muslim leadership spread misinformation and covered up what is in

the Koran, even criminalizing exposing the truth or asking questions.

The truth is too scary for many, both Muslims and non-Muslims. I

thank Robert Spencer for bringing the truth of what is in the Koran to

non-Muslims.” — Nonie Darwish, ex-Muslim and author of Now

They Call Me Infidel.

“In an informed, sardonic antidote to the usual soft-peddling of the

Koran, he concludes that its actual contents should alarm infidels and

prompt them to defend their ‘freedom of speech, freedom of

conscience, and the legal equality of all people.’ — Daniel Pipes,

director, Middle East Forum.

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4. Stealth Jihad. “Robert Spencer makes a solid case that the major

threat to our way of life does not come solely from those radical

Islamists who embrace violence and terrorism. It also comes from

those who do not accept that they must live side-by-side on a basis of

equality with those of other faiths in a civil society and who instead

work in multiple ways toward obtaining special standing for Islam in

our society and, ultimately, toward theocracy. A vital wake-up call of

a book.” — R. James Woolsey, former director of Central

Intelligence.

5. Religion of Peace?. “Brilliantly written and argued” Ann Coulter.

“Spencer’s thought-provoking book persuasively demonstrates the

ways in which Western civilization, rooted as it is in the Judeo-

Christian tradition, is profoundly different from the model of society

dictated by Islamic sharia. Rich in its insights and analysis, this is a

book that should be read and appreciated by Christians and Jews

alike.” — Rabbi David G. Dalin, author of The Myth of Hitler’s Pope.

6. The Truth About Muhammad. “Intrepid Robert Spencer continues

his quest to dispel myths, cure ignorance, and open our eyes to hard

truths about Islam. Spencer trades platitudes for scholarship;

delusions for reality. If we are going to win ‘the War on Terror,’ we

need to know how Muhammad really lived — and why he endures as

the inspiration for global jihad. This book is a threat to ‘religion of

peace’ propaganda that lulls the West into submission. Strike a blow

for survival: buy it.” — Michelle Malkin, nationally syndicated

columnist and bestselling author of Unhinged, In Defense of

Internment, and Invasion.

18. The Court is referred to the Second Applicant’s witness statement for

further information on the Second Applicant’s published books and

reviews. [Tab 5].

19. The Second Applicant is portrayed by the Secretary of State as saying

the following:

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“‘[Islam] is a religion and is a belief system that mandates warfare

against unbelievers for the purpose for establishing a societal model

that is absolutely incompatible with Western society because media

and general government unwillingness to face the sources of

Islamic terrorism these things remain largely unknown.’” [Tab 2,

74].

20. This comment is alleged by the Secretary of State to provide a basis for

exclusion, though it did not prevent the Second Applicant from entering

the UK in 2009. As the Second Applicant explains in his witness

statement:

“This is a mangled transcription of a statement I made in the

documentary Islam: What the West Needs to Know. The Home

Office’s footnote comes from a You Tube video trying to claim that I

am responsible for murders committed by a madman in Norway

who cited me along with innumerable others in a lengthy and

incoherent document.

I filmed the interview for the documentary in Los Angeles in

summer or fall 2004. Others, including Bat Ye’or, Serge Trifkovic

and Walid Shoebat are also featured in the documentary, which is

still available for purchase at Amazon.com and elsewhere. This

video did not prevent my visit from taking place in the UK in 2009”.

[Tab 5, 107].

21. The Second Applicant, in his witness statement, then provides the

evidential basis upon which the above comments are made. He provides

detailed support for those comments in the Quran and Islamic

jurisprudence which can be, and are, used by extremists.

22. It is wholly misleading to assume that the Applicants are critical of all

Muslims. They are not. As the First Applicant puts it in her witness

statement:

“Neither Robert nor I are critical of all people who describe

themselves as Muslims. On the contrary, the first effort on which

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Spencer joined my efforts was an attempt to obtain a tombstone for

a Muslim honour killing victim, Aqsa Parvez, who had been buried

in an unmarked grave. I have come to the aid of numerous Muslims

who faced difficult situations in their families for staying from

strict adherence to Sharia. I do not oppose Islam as such and

certainly not Muslims as such; any Muslim who renounces Jihad

violence, Islamic supremacism, Islamic anti-Semitism and the

other elements of Islamic law that are at variance with universal

principles of human rights are invited to stand with us”. [Tab 6,

197].

The facts

Events leading to the exclusion

23. Drummer Lee Rigby of the Royal Regiment of Fusiliers was killed near

his army barracks in Woolwich by an Islamic extremist. The First and

Second Applicants intended to visit the UK. They intended to see the

English countryside and visit Buckingham Palace. Both intended to lay

a floral wreath at the site of Mr Rigby’s murder on Armed Forces Day as

a symbolic gesture on behalf of their country’s struggle against

extremism and terrorism.

24. Both Applicants intended to do so in the company of other freedom

activists from around the world who intended to pay their respects to

Lee Rigby, including Ashraf Ramelah, president of Voice of the Copts.

The Applicants intended to leave New York from John F. Kennedy

Airport on Thursday 27 June 2013 arriving in London on Friday June

28. They planned to leave the UK on June 30 2013.

25. Tommy Robinson and Kevin Carroll of the English Defence League

intended to participate in a charity walk. The Applicants had no

intention of participating in that walk. The Applicants intended to meet

Tommy Robinson and Kevin Carroll and others after the charity walk at

the site of the memorial to Lee Rigby.

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26. A floral arrangement was obtained in the form of US Star and Stripes.

These flowers were in fact placed at the site after the Applicants’

exclusion without any violence or public disorder.

27. Mr Robinson and Mr Carroll did undertake a charity walk. They were

peacefully arrested for attempting to walk through Tower Hamlets. The

legality of the arrest is unclear. Tower Hamlets is said to be a Muslim

area. Despite this, there was no backlash from Muslims. No real

incident of public disorder has been reported. Nevertheless, neither

Applicant had any intention of visiting Tower Hamlets.

28. Both Applicants have no previous convictions. They have no cautions,

warning or reprimands. Both condemn violence.

The exclusion

Background

The Metropolitan Police request for exclusion on 24 June

2013

29. By a letter dated 24/6/2013 addressed to the Home Secretary, the

Metropolitan Police (MP) enclosed representations seeking the

Applicants’ exclusion; it being alleged that the Applicants have been

forthright about their views about the Islamic community and have

been considered to be provocative. [Tab 5, 149].

30. The commander of the mission states that the Leader of the Council and

the Chief Executive have informed him that, if the Applicants were

“allowed to address a rally on Saturday”, they will be making cross

party and community representations to the MPS on 25/6/2013. The

identities of the Leader of the Council and the Chief Executive are not

revealed.

31. It is evident from the redacted and non-transparent representations

that the MP made an application to the Home Office to exclude the First

and Second Applicants on the basis that their visit will inflame

community tensions and may result in significant public disorder. The

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redactions themselves seek to hide the identity of those parties that the

Secretary of State does not wish to associate with in public.

32. The basis for the request for exclusion is that the Applicants are anti-

Islamic. It is said that this increases the risk of disorder, as it is likely to

augment the number of people who attend in order to oppose the EDL

event, including Muslims and pro-Palestinian groups.

33. The MP cite cases where “the policing minister” in October 2012 had to

ban a planned EDL march in Walthamstow, citing “public safety

concerns”. It cites other EDL events where it had to curtail EDL

gatherings through the deployment of the police force at expense.

The evidence against the First Applicant

34. The redacted and non-transparent submissions document dated 20

June 2013 refers to the following evidence against the First Applicant

[Tab 6, 232]:

1. The First Applicant, through the American Freedom Defense

initiative (AFDI), was responsible for a widely circulated poster

stating “in any war between the civilized man and the savage,

support the civilized man. Support Israel. Defeat Jihad” which

the US Court found “was permissible under the First

Amendment ground” [para 5].

2. The First Applicant is said to have defended the advert through the

following statement:

“The premise of my ad was that a war on innocent civilians is

savage… As long as the Palestinian Authority continues its

savage policy to foment violence, promote hatred and teach

Palestinian children to hate, the number of young Muslims

willing to blow themselves up or to slit Israeli throats will

continue to increase. That is savage. The Palestinian Authority

propaganda of Holocaust denial calls for the killing of the Jews

and glorification of bloodthirsty jihad is savage”. [para 5]

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3. Although the First Applicant’s writings “do not appear to promote

violence against Muslims”, the MP submission states that the First

Applicant “expresses views which meet the unacceptable behavior

criterion of fostering hatred which might, should she visit the UK,

lead to intercommunity violence in the UK”. [para 7].

4. It is alleged that “there is a strong possibility that moderate and

law-abiding members of the UK muslim community and other UK

citizens would find Geller’s views offensive and take strong

exception to her having a public platform”. [para 7]. This is

despite the fact that there was no evidence of or prior history of

imminent and/or uncontrolled violence.

5. It is alleged that the First Applicant’s Article 10 rights were

outweighed by “potential adverse consequences of Geller being

permitted to visit the UK in order to speak at the demonstration”.

[para 7]. The Applicants had no plans, however, to hold a

demonstration. No separate consideration is given to the First

Applicant’s rights under s.29 J of the Race and Religious Hatred

Act 2006 and/or her other convention rights.

6. It is suggested that “some individuals in the Jewish community

may object [to the exclusion – emphasis added]: either out of

direct sympathy for them (less likely) or due to a perception of

double standards (more likely)” [para 9].

35. The redacted and non-transparent case research and analysis report,

marked Annex A, upon which the above submission is based states the

following against the First Applicant [Tab 6, 237]:

1. The First Applicant is a “high profile figure in the counter jihadist

movement” and responsible for an advertising campaign in

support of Israel [page 237, 238].

2. The First Applicant states “the only good Muslim is one who

doesn’t want to commit jihad and subjugate unbelievers, doesn’t

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want to impose the sharia on non-Muslims, doesn’t want to

subjugate women, and doesn’t hate Jews” [page 240].

3. The First Applicant is opposed to burning of religious books and

“does not advocate violence” and states “Al-Qaeda is a

manifestation of devout Islam” [page 241].

4. The First Applicant “advocates defence against the spread of

extremist Islam”. [page 243].

5. The First Applicant “gives a tolerant message after her

comments have been challenged”. [page 243].

6. “Despite her attempts to explain some of these statements, there

is a strong possibility that there are Muslim and other UK

residents who would take exception to her having a public

platform to espouse her views”. [page 243].

7. The First Applicant does not meet the threshold for exclusion

under the unacceptable behaviours policy elements relating to

terrorism and serious criminal activity or provocation of others to

serious criminal acts. [Page 243].

8. The First Applicant, it is said, “as such…reaches the threshold for

exclusion from the UK under the following element of the

“unacceptable behavior policy: ‘public speaking which fosters

hatred which might lead to inter-community violence in the

UK’”. [page 243].

The evidence against the Second Applicant

36. The redacted and non-transparent submissions against the Second

Applicant dated 21/6/2013 state [Tab 5, 135]:

1. The Second Applicant is “a best-selling author and founder of the

blog Jihad Watch (a site widely criticised for being Islamophobic)

who is known for his criticism of Islam, Islamic terrorism and jihad

ideology”. [para 4].

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2. The Second Applicant is “influential and high profile”. [para 4].

3. It is said that “moderate and law abiding members of the UK Muslim

community and other UK resident would find Spencer’s view

offensive and would take strong exception to him having a public

platform to espouse his views” [para 6].

4. The Second Applicant’s writings are said to have inspired a

Norwegian terrorist Anders Breivik. [para 5].

5. The following statement made by the Second Applicant in a You Tube

interview is said to come within the exclusion under the unacceptable

behavior criteria:

“It [Islam] is a religion and is a belief system that mandates

warfare against unbelievers for the purpose of establishing a

societal model that is absolutely incompatible with Western

society because media and general government willing to face

the sources of Islamic terrorism these things remain largely

unknown”. [para 5]

6. The Second Applicant has published numerous articles and blog

postings, highlighting the threat of Islam and “some individuals in the

Jewish community may object to the exclusion either out of direct

sympathy for them (less likely) or due to a perception of double

standards (more likely)”. [para 8].

7. The Second Applicant may choose to publicize his exclusion on the

basis of his support for Israel. [para 7].

37. The redacted and non-transparent case research and analysis report on the

Second Applicant states [Tab 5, 139]:

1. The Second Applicant is “a well known American author that

includes two New York Times best sellers, and blogger known for

his criticism of Islamic terrorism, jihad, and conspiracy theories”.

[page 140]

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2. The Second Applicant’s blog is “considered to be a significant site

that opposes Jihad” and had “won the people’s choice blog award”.

[pages 140, 142].

3. The Second Applicant “is to some extent respected as a

commentator on Islam and Islamism/jihad” but is a “controversial

character”. [page 148].

4. “There are sufficient grounds to exclude the subject from the UK

under the UK policy because his published works and presence at

the EDL rally could foster hatred which might lead to inter-

community violence in the UK” (see assessment and

recommendation section, page 140).

5. In a You Tube interview the Second Applicant describes the

Norwegian terrorist as “a psychopath” and states that any Muslims

who reject war against unbelievers “I count as an ally in the defence

of freedom”. [page 144].

6. The Second Applicant has visited the UK and spoken with the First

Applicant at an event in relation to which there were “peaceful

protests against Geller and the subject [i.e. the Second Applicant] in

Stockholm in 2012”. [page 146].

7. “How he might be perceived in the Muslim community that would

appear to be the central issue here” and that “it is fair to conclude

that many Muslims, including those termed ‘moderate’, would find

his presence in London, and the UK in general, offensive. Under the

UB (unacceptable behavior policy) 2005 it is reasonable to

conclude that Spencer’s exclusion from the UK is justified because

he has published or said (and will continue to do so) words that

foster hated which might lead to inter community violence in the

UK”. [148]. Again this is stated without any evidence of imminent

and/or uncontrolled violence.

8. It is alleged the Second Applicant’s Article 10 rights are outweighed

by the potential adverse consequences of the Second Applicant being

19

allowed to speak at the demonstration.[page136]. No separate

consideration is given to the Second Applicant’s rights under section

29J of the Race and Religious Hatred Act 2006 and/or his other

convention rights.

The exclusion letters [Tab 2, 73-76]

38. By a letter dated 25/6/2013 addressed to the First Applicant, the Secretary

of State personally directed (though the letter is signed on her behalf) in so

far as material as follows:

“I am writing to inform you about the British government’s measures for

excluding or deporting extremists under the Unacceptable Behaviour policy.

The list of unacceptable behaviours covers any non-UK national whether in

the UK or abroad who uses any means or medium … to express views that…

foster hatred which might lead to inter-community violence in the UK… The

Home Secretary notes that you are a prolific blogger, author, political

activist and commentator. You co-founded Stop Islamisation of America, an

organisation described as an anti Muslim hate group. You also operate a

number of websites including Jihad Watch and Atlas Shrugs.

You are reported to have stated the following:

Al-Qaeda is a manifestation of devout Islam…it is Islam.

If the Jew dies, the Muslims will die as well: their survival depends on their

constant jihad, because without it they will lose the meaning and purpose of

their existence.

The Home Secretary considers that should you be allowed to enter the UK

you would continue to espouse such views. In doing so, you will be

committing listed behaviours and would therefore be behaving in a way

that is not conducive to the public good.

You are therefore instructed not to travel to the UK”.

39. By a letter dated 25 June 2013, addressed to the Second Applicant, the

Secretary of State personally directed (though the letter is signed on her

behalf) in so far as material as follows:

20

“I am writing to inform you about the British government’s measures for

excluding or deporting extremists under the Unacceptable Behaviour policy.

The list of unacceptable behaviours covers any non-UK national whether in

the UK or abroad who uses any means or medium … to express views that…

foster hatred which might lead to inter-community violence in the UK.. The

Home Secretary notes that you are the founder of the blog Jihad Watch (a

site widely criticized for being Islamophobic). You co-founded the Freedom

Defense Initiative and Stop Islamization of America, both of which have

been described as anti Muslim hate groups.

You are reported to have stated the following:

“It [Islam is a religion and is a belief system that mandates warfare against

unbelievers for the purpose for establishing a societal model that is

absolutely incompatible with Western society because media and general

government unwillingness to face the sources of Islamic terrorism these

things remain largely unknown.

The Home Secretary considers that should you be allowed to enter the UK

you would continue to espouse such views. In doing so, you would be

committing listed behaviours and would therefore be behaving in a way

that is not conducive to the public good.

You are therefore instructed not to travel to the UK as you will be refused

admission on arrival..”.

40. The Applicants wrote a pre-action letter challenging the exclusion on

3/7/2013. [Tab 3]. By a response dated 12/7/2013, the Treasury Solicitors

sought an extension of time within which to respond contending that the

Respondent will not rely on any delay defence. That request was duly

granted by the Applicants. By a letter dated 2/8/2013 (received 5/8/2013),

the Secretary of State wrote seeking to justify the decision on the basis of the

“Prevent” strategy, contending that there was no breach of the ECHR rights

relied upon by the Applicants. [Tab 4]. The Secretary of State expressly

contends the decision to exclude the Applicants “was taken in accordance

with the governments ‘Prevent’ strategy for combating extremism and/or

terrorism”. This makes it clear that, in order to prevent terrorism, it is

21

necessary to combat extremist ideologies and that the Secretary of State has

identified a number of “unacceptable behaviours” which pose a threat to

public safety, including the expression of views which “foster hatred which

might lead to inter community violence”. It is alleged by the Secretary of

State that the assessment of the Secretary of State is reasonable. It is alleged

by the Secretary of State that the unacceptable behaviours policy is lawful

(even though it runs contrary to the objectives of Prevent). It is not

suggested that it has been approved by Parliament. The Secretary of State

alleges that there exists no actionable breach of the Applicants’ convention

rights.

GROUNDS

Abuse of power

41. The Secretary of State’s decision to exclude the Applicants constitutes an

abuse of power because the Secretary of State relies on the power to curtail

terrorism and terrorist ideology for the collateral purpose of excluding the

Applicants and/or on policies which fail the test for legal certainty.

42. The decision to exclude the Applicants is based on the Unacceptable

Behaviours Policy made under the government “Prevent” and “Contest”

policies. [Tab 7, 8]. As reflected upon above, these apply only to combating

terrorism through dealing with terror suspects and/or those extremists who

encourage terrorism. There is no power under “Prevent” to exclude non-

terror suspects such as the Applicants who are in effect assisting the Home

Secretary in the implementation of the “Prevent” policy by opposing Islamic

extremists and terrorists in their writings. The Applicants are not promoting

ideas which can be said to form part of a terrorist ideology. The “Prevent”

policy itself states that “we remain absolutely committed to protecting

freedom of speech in this country, but preventing terrorism will mean

challenging extremists (and non-violent ideas that are also part of a

terrorist ideology)” (3.10). It is to be noted that the “Prevent” policy does

expressly state “The Terrorism Act of 2006 established offences which in

effect relate to Prevent” (6.13), though the policy does not state the enabling

provisions under which it is made. If the power to exclude exists under

22

“Prevent”, it is limited to those cases which encourage terrorist ideology. This

is evident from Hansard, where the Secretary of State states:

“Prevent provides a template for challenging the extremist ideas and

terrorist actions which seek to undermine the rule of law and fundamental

British political values and institutions…

So where propagandists break the law in encouraging or approving

terrorism, it will mean arrest and prosecution, and where people seek to

enter this country from overseas to engage in activity in support of

extremist or terrorist groups, we will exclude them. Since coming to power,

I have already excluded 44 individuals from the UK either because of

unacceptable behaviour or for national security reasons”. [Hansard 7 June

2011, Columns 52/53].

43. The Unacceptable Behaviours Policy, therefore, does not permit the

exclusion of the Applicants who do not, on the evidence, fall within the

“Prevent” policy. If it were otherwise, terrorists could induce the Secretary

of State to exclude those who are said to be Islamophbic. The policy can thus

be used to divorce the right to visit from any impropriety whatsoever on the

part of the persons to be excluded. “The “Prevent” policy is only limited to

possible terrorist activities and their encouragement. The post decision

letter of the Secretary of State dated 5/8/2013 admits that the inter

community violence clause in the Unacceptable Behaviours Policy goes

contrary to the objectives of “Prevent”. [Tab 4, 83]. Accordingly, this is a

classic case where the Secretary of State is exercising her powers for an

extraneous purpose, in that she is using her powers provided to curtail

terrorism for a collateral object: that is, for the purposes of excluding foreign

nationals by dangerously curtailing their freedom of expression and/or

other freedoms on a personal whim: a clear abuse of power. As Lord

Bingham held in R (Gillan) v Comr of Police of Metropolis [2006] 2 AC 307:

“the Public must not be vulnerable to interference by public officials acting

on any personal whim, caprice, malice, predilection or purpose other than

for which the power was conferred. This is, what, in this context, is meant

by arbitrariness..” 346, F.

23

44. This is particularly true when the Secretary of State seeks to rely on s. 3 (1)

of the Immigration Act 1971 in order to legitimise the exclusion under the

“Prevent” strategy. S 3 (1), however, does not permit the enactment or

interpretation of policy to exclude individuals such as the Applicants whose

views are conducive to the public good within the meaning of s.3 (1) and/or

in accordance with the law. The Applicants’ views are either permissible

under s.29 J of the Race and Religious Hatred Act 20065 and/or under the

“Prevent” policy since their views target Islamic extremism and are

protected under s. 29 J referred to above. Any order made by the Secretary

of State under s. 3 (1) (a) has to comply with section 29 J. Otherwise, it

would be ultra vires: see Laker Airways v Department of Trade [1997] QB

643 referred to in para 66 below.

45. In Galloway v London Corp (1866) L.R. 1 HL 34, at 43, it was held that the

Secretary of State cannot exercise its discretionary powers for any collateral

object. The Courts have more historically held that it is unlawful to exercise

a power for unauthorised purposes: see R v Secretary of State for Foreign

Affairs Ex p. World Development Movement [1995] 1 W.L.R 386; R v

Somerset CC Ex p. Fewings [1995] 1 WLR 1037. In the World Development

case, it was held that the minister’s dominant purpose in funding the

uneconomic project was not the authorised one of furthering the economy or

welfare of the people of Malsia. In Somerset, it was held that the dominant

purpose of fulfilling the ethical perceptions of councillors did not fulfil the

authorised statutory purpose, namely the improvement of the amenity of the

area. It is “for the Courts and not the Secretary of State to determine

whether the conduct is within the statutory purpose”: see the World

Development case.

46. Accordingly, the power has not thus been validly exercised since it is

exercised for a collateral and/or unauthorised purpose.

5 See para 64 below.

24

47. The Prevent and Unacceptable Behaviours policies, moreover, do not pass

the test for legal certainty (see para 97 (4) below). It is not clear under which

statutory provision the “Prevent” policy is enacted and can be modified to

allow exclusion of foreign nationals who do not promote any terrorist

ideology. The same applies to the Unacceptable Behaviours Policy.

Consequently, it is an abuse of power to rely on these policies to exclude the

Applicants, particularly when the Applicants have a legitimate expectation

to enter the UK on the basis of these policies (see legitimate expectations

ground below) and oppose the same behaviours targeted in the Prevent

policy. In her post decision letter, the Secretary of State accepts that the

Unacceptable Behaviours Policy list is not a requirement itself to be

satisfied. Ironically, however, her decision letters dated 25/6/2013, referred

to above, state the opposite. This is evident from the following words in the

two respective decision letters: “The Home Secretary has reached this

decision because you have brought yourself within the scope of the list of

unacceptable behaviours”.

Article 17 of the ECHR

48. Article 17 of the ECHR in so far as material states:

“Nothing in this Convention may be interpreted as implying for any State,

group or person any right to engage in any activity or perform any act

aimed at the destruction of any of the rights and freedoms set forth herein

or at their limitation to a greater extent than is provided in the

Convention”.

49. Given that the exclusion orders constitute an abuse of power; this article is

engaged, particularly since the Applicants oppose violence. Article 17 precludes

any interference with Applicants’ Article 10 rights to protect religious

minorities under Article 9 of the ECHR. Consequently, the Secretary of State

cannot rely on the rights of minorities, particularly in relation to causing them

offence.

25

Illegality

50. The exclusion based on the Unacceptable Behaviours Policy is unlawful and

ultra vires since the so-called “Prevent” policy does not provide for it and it

has not been suggested by the Secretary of State that the Unacceptable

Behaviours Policy has been approved by Parliament. The Applicants rely on

the following reasons:

1. For the reasons referred to in paragraphs 41-46, there exists an abuse

of power.

2. The “Prevent” policy has not been enacted under s.3 (1) of the

Immigration Act 1971 and/or under any other enabling provision in

primary legislation.

3. Even if the “Prevent” policy is made under s. 3 (1) of the Immigration

Act 1971, as implicitly claimed by the Secretary of State in her reply to

the Applicants’ pre-action letter, the “Prevent” policy is not a

concessionary policy. Rather it is a policy which introduces an

absolute discretion as to the circumstances in which the Home

Secretary can exclude individuals from the UK. The Secretary of State

in her post decision letter states the Unacceptable Behaviours Policy

is not “exhaustive”. [Tab 4, 84]. This means that it has shifted from a

policy to the conferral of unilateral power to exclude at will. The

Unacceptable Behaviours Policy, therefore, amounts to a statement

“as to the practice to be followed” regarding exclusion of individuals

at will. Consequently, it constitutes an “immigration rule” within the

meaning of the Immigration Act 1971 s. 3 (2) and must be approved

by Parliament: see Munir v Secretary of State for the Home

Department [2012] 1 WL.R. 2192; The Alvi case [2012] 1 WLR 2208.

In her reply to the Applicants pre action letter, the Secretary of State

has not suggested that the policy has been approved by Parliament. In

Naike v Secretary of State [2011] EWCA Civ 1546, although the

legality of the unacceptable behaviours policy was not challenged by

26

the Appellant, the Secretary of State did not suggest that it had been

approved by Parliament through the negative resolution process.6

Consequently, the unacceptable behaviours policy is unlawful.

4. The Secretary of State’s explicit reliance on the “Prevent” policy to

retrospectively justify the Applicants exclusion under the

Unacceptable Behaviours Policy renders the decision unfair (see the

post decision letter of the Secretary of State dated 5/8/2013). This is

because it does no more than pick and choose policies that match its

restricted powers to exclude under s.3 (1) of the Immigration Act

1971.

5. Exclusion under “Prevent” has not been placed on a statutory footing

which is necessary to provide the Secretary of State expressed powers

of exclusion. At present, the “Prevent” policy is being used to confer a

power on the Secretary of State to legislate – a power which is

unconstitutional and ultra vires - legislative power is the prerogative

of Parliament.

51. It is clear that the requirement of conducive to the public good in

immigration rule 320 (6) fetters the Secretary of State’s discretion and is

incompatible with a position of absolute power which the policy seeks to

import.

52. The Unacceptable Behaviours Policy amounts to a change in immigration

rule 320 (6) without grant of Parliament and therefore is unlawful. It

introduces wording and listed behaviours not found in rule 320 (6). It

enables the Secretary of State to exclude non-UK nationals in

circumstances where rule 320 (6) does not.

6See paras 16 and 65. The Court of Appeal merely held that “The Home Secretary announced to

Parliament that there would be a presumption in favour of exclusion of those found to have

engaged in the types of behaviour listed in the August 2005 statement” (para 16).

27

53. Rule 320 (6) permits exclusion of a non-UK national where the exclusion

is not conducive to the public good without specifying listed behaviours

contained in the Unacceptable Behaviours Policy or containing the

provision referring to views which “might lead to inter community

violence” (“the inter community violence provision”).

54. Rules 320 (6) has to be construed compatibly with article 10, 11, 9, 17 and

14 of the ECHR. It does not permit premature pre-emptory exclusion of

non-UK nationals without the deployment of law enforcement to curtail

the perceived threat to the peace or public order. This is evident from the

decision of the House of Lords in R v Laporte [2007] 2 A.C 105.

55. R v (Laporte), concerned a challenge to the decision to exclude the

Appellant from a lawful protest. The decision to exclude was taken on the

basis that his lawful presence may lead others at some time in the future

to breach the peace. Their Lordships (Lord Bingham, Lord Roger, Lord

Carswell and Lord Mance) held that the police action to exclude the

Appellant from a lawful assembly, on the basis that others might have

behaved unlawfully, was premature. It was, therefore, disproportionate.

The breach of peace was not sufficiently imminent to justify an arrest.

56. In R v (Laporte), their Lordships House held that a threshold test of

imminence must be passed before action may be taken to prevent a breach

of the peace. Once that test of imminence is passed, reasonably necessary

action to prevent a breach of peace can only be taken where it is

proportionate to do so. Per Lord Bingham, at paras 39-40 and 46-49, Lord

Roger at para 62, Lord Craswell para 101, Lord Brown at para 114, and

Lord Mance at para 141.

57. Lord Mance ruled in R (Laporte) at para 141.

“I regard the reasonable apprehension of an imminent breach as an

important threshold requirement, which must exist before any form of

preventative action is permissible at common law. Where a reasonable

28

apprehension of an imminent breach of peace exists, then the

preventative action taken must be reasonable and proportionate”.

58. In determining whether a breach of peace was imminent, an essential

condition is the “immediacy of the threat to the peace” in the sense of

“close proximity both in place and time” (see per Lord Carswell in R v

Laporte, page 148, C-D; and Lord Bingham at page 130, paras A-B citing

Moss v McLachlan [1985] IRLR 76).

59. Lord Mance ruled at 141.

“The requirement of imminence is relatively clear-cut and appropriately

identifies the common law power of last resort catering for situations

about to descend into violence”.

60. Referring to the action taken by the respondent to exclude lawful

protesters on the ground of a threat of violence from third parties, Lord

Mance ruled at 161 E-F as follows:

“... the action taken was premature – taken at a time when a breach of

peace was not imminent. (In fact, for the reasons which will appear in

paras 152 – 154, I would not anyway accept that the suggested difficulty

and need existed”.

61. His Lordship continued at 152 -154:

“...152 the question then is whether the preventive action actually taken is

justified so far as it concerned the claimant, Ms Laporte. In my opinion it

was not, because it has not been shown to have been either reasonable or

proportionate...

62. It is evident from the Judgment of Lord Bingham at page 131 A-B “it is not

enough to justify action that a breach of peace is anticipated as a real

possibility”. His Lordship held at para 50 the intervention by the

authorities cannot occur when the action is short of arrest, thereby

29

acknowledging that intervention on imminent breach of peace can only

take place where the action in question is unlawful.

63. The policy seeks to circumvent these limitations in Rule 320 (6) by

introducing, without Parliamentary approval, a non-exhaustive list of

unacceptable behaviours. This provides the Secretary of State with an

absolute discretion to exclude those exercising offensive speech which

“may” lead to a breach of peach or public disorder offences under part 3A

of the Public Order Act 1986 (as in this case). The important test of

lawfulness referred to in Laporte has, therefore, been abrogated.

64. The application of the policy in this way clearly offends the statutory

context in which the powers are to be exercised, namely the ECHR

limitation in 320 (6) referred to above and the provision of 29J of the

Race and Religious Hatred Act 2006.

65. Section 29 J protects offensive speech from the purview of public disorder

offences referred to in Part 3A. Part 3A of the POA 1986 came into force

on 1 October 2007. It provides protection in relation to threatening speech

against “a group of persons defined by reference to religious belief or lack

of religious belief” that is carried out with the intention to stir up hatred.

Section 29J of the Public Order Act 1986 provides that nothing in part 3A

“shall be read or given effect in a way which prohibits or restricts

discussion, criticism or expression of antipathy, dislike, ridicule, insult or

abuse of particular religions or beliefs or practices of their adherents”.

66. Thus Parliament has provided for the expression of the Applicants’ views

via section 29J but the policy seeks to deprive the Applicants of such

protection through application of an open ended discretion. In Laker

Airways v Department of Trade [1977] QB 643 (CA), the Secretary of

State’s policy guidance was held unlawful as it cut across statutory

objectives which made it clear that the British Airways Board was not to

have a monopoly. The Secretary of State should have amended the Act,

rather than issue guidance. The same reasoning applies to the present case

where the policy cuts across s.29J. It is not open to the Government to

30

deprive individuals of statutory protection through a policy even where

that policy provides an open ended discretion: see Congreave v Home

Office [1976] QB 629 where the Court of Appeal held that the minister

could not use his power to revoke the licensees in order to deprive

licensees of the advantage that they had secured through parliamentary

authorization. The policy, therefore, is ultra vires and/or unlawful.

67. There is nothing in the Secretary of State’s plea for deference contained in

the post decision letter. Indeed, it is for the Court, as a matter of law, to

determine a policy’s meaning, and if the decision maker fails properly to

understand that meaning, it will have committed an error of law: see per

Brook LJ in R v Derbyshire Ex p. Woods [1997] J.P.L 958, at 967-968; per

Sedley LJ in First Secretary of State v Sainsbury’s Supermarkets Ltd

[2005] EWCA Civ 520 “the interpretation of a policy is not a matter for

the Secretary of State”, para 16.

Error of law

68. The Secretary of State’s decision, whether viewed under the rules or the

policy, is unlawful in any event, since it fails to apply the correct

“imminent violence” test for exclusion referred to in Laporte. The existing

evidential material did not show that there was a situation that was about

to descend into violence following the reasoning in Laporte. As a matter of

law, the Applicants could not be excluded on the existing materials. This

was a question that ought to be asked and was not asked. The Secretary of

State instead proceeded to exclude the Applicants without any further

enquiry. In doing so, she set the threshold for exclusion at the lowest,

when it was a high one following the reasoning in Laporte. The Secretary

of State thereby erred in law. As Ouseley J held in Moon v ECO [2006]

INLR 190, errors of law committed by the Secretary of State are amenable

to judicial review. As his Lordship held:

“no special deference is called for in the assessment of facts…the point

could not be disposed of as a matter of upon which the Secretary of

States decision was reasonable without further consideration of the

31

material before the Secretary of State and the adjudicator.. We have to

say that the approach of the adjudicator read as a whole was far too

deferential to the Secretary of State’s appraisal, even if Farrakhan test

represents the correct approach to adopt.. If that degree of deference is

called for, it had to be earned with the care with which the Secretary of

State addressed the relevant issues, and had come to a reasoned and

balanced decision. It is difficult to characterise the secretary of state’s

decision in that way. It then had to withstand the effect of the new

material before the adjudicator... This is a case, however, where the

decision was based on material which did not warrant the conclusion

reached… This is not disagreement with an evaluation as to what

constitutes the public interest or as to a balance struck between

competing public and private interests, but a judgment that the factual

material simply does not justify the Secretary of State’s conclusion as to

the factual basis for the existence of a risk”. Para 131 and 138.

69. The Secretary of State has not concluded that there exists a threat to

national security arising out of the conduct of the Applicants. The case is

wholly different from Rehman [2005] 1 AC 153 (a case relied upon by the

Secretary of State) where the conduct concerned association with

organisations concerned with terrorist activities and endangered national

security of the United Kingdom justifying deportation.

70. On the evidential materials before the Secretary of State, it was accepted

that the Second Applicant was a respected scholar on Islam. It was

accepted that the First Applicant would preach a message of tolerance

when challenged on her views. Both had no previous convictions and were

opposed to violence. The law enforcement agencies could, and should,

have curtailed any alleged outburst threatening an “imminent” breach of

peace or public order. This was hardly evidence of a situation that may

lead to violence. The mere possibility of public disorder or violence did not

justify exclusion following the reasoning in Laporte. Nor is it sufficient

that violence is anticipated: see per Lord Bingham 131 A-B. The perceived

possibility of public disorder or violence can exist almost in any form of

public gathering.

32

71. Thus the State’s entire approach is flawed. Instead of spending time and

effort reviewing the views of the Applicants, there should have been an

identification of the likely perpetrators of violence, so that the threat could

be managed and/or curtailed through law enforcement. The Secretary of

State made no attempt to contact the Applicants and question them about

their views. If the Secretary of State can exclude on the basis of the views

of a select few in society, a wall against dissent is being improperly

construed through exclusion orders.

72. The evidential material available to the Secretary of State refers to a You

Tube video which shows that, in 2012, there were peaceful protests against

the Applicants in Stockholm. The wreath was laid, in the absence of the

Applicants, without any incident of public disorder in the UK.

73. The evidential material referred to above shows that the Applicants do not

promote violence or hate. Their actions were lawful actions. It was not

shown that the material upon which the exclusion was made had led to

any violent protests or that such protests were in progress.

74. The fact that, Breivik, a Norwegian, may have been inspired to commit

murder in the past did not show that publications or writings of the

Applicants were the cause of current unrest in the UK. There was no

evidence that the Applicants publications had caused inter community

violence or any violence that could not be managed through law

enforcement. No one really knows why Breivik did what he did. In any

event, the fact that somebody is inspired to commit offences through

reading literature is an issue for law enforcement rather than exclusion.

Breivik cited many people besides the Applicants, and specifically,

criticized the Second Applicant for not calling for violence.

75. The materials that the exclusion was based upon were readily available in

the UK, where far more extreme views have been expressed without any

inter community violence. Both the Applicants drew a clear line between

33

Islamic extremists in favour of violence and peaceful Muslims whom they

regarded as part of their struggle for freedom – ironically - this is the very

basis for the “Prevent” policy. That policy seeks to move the former

towards the latter.

Legitimate expectation

76. The Applicants have a legitimate expectation to enter into the UK on the

basis of the strategy outlined in the “Prevent” policy. That this is so can be

amply discerned through the following:

(i). On the evidential materials before the Secretary of State, it is plain that

the Applicants are critical of Islamic extremism and are opposed to

violence, including terrorism. The “Prevent” strategy makes it clear that

persons such as the Applicants who criticise Islamic extremism, religious

violence and terrorism will be useful to the policy aims of the prevention

of terrorism in the “Prevent” strategy which the Secretary of State relies

on. The Applicants’ presence in the UK is thus conducive to the public

good within the meaning of s.3 (1) of the Immigration Act 1971.

(ii). In engaging in the discussions referred to in the exclusion letters

dated 25 June 2013, the Applicants are engaging in theological discussion.

These theological discussions involve thorny issues, such as whether the

societal model that Islam in radical form offers is actually compatible with

Western values predicated upon the Judeo-Christian ethic, and whether

the concept of Jihad has, at its heart, anti-Semitism that has fuelled

savage jihadi groups in the Palestinian Authority and Israel (the issue

raised in the First and Second Applicants’ discussions). The “Prevent”

strategy provides a clear evidential basis for the legitimate expectation

that the Applicants will be allowed to express such views on the basis that

theological discussions are conducive to the public good. It states:

‘The last strategy recognised the difficulty of the Government taking a

position on matters of theology. But the Government designated Islamic

studies as a ‘strategically important and vulnerable subject’, allowing the

34

Department to facilitate networking and collaboration between

academics. It supported work by a group of leading scholars, community

leaders and academics to consider how Islam is contextualised in this

country.’ (Paragraph 8.36 of Prevent).

It is thus clear that the Applicants’ discussions on theology, and thus their

presence in the UK, would fall within “Prevent”. They were correct in

assuming that their presence in the UK would be allowed on the test of

“conducive to the public good”. In fact, they believe their presence would

be conducive to the public good. Their views on Islamic extremism are

consistent with the February 2011 speech of Prime Minister David

Cameron on radicalisation and causes of terrorism delivered in Munich.

This in essence states that Islamic extremism, as a political ideology, is not

the same thing as Islam and needs to be questioned through open debate.

The speech is said to have angered some Muslim groups and was made

during an EDL rally in the UK. The speech, however, did not cause any

inter community violence (see para 20 of the First Applicant’s witness

statement and exhibit PG1).

Theological dissent is a key part of the integration strategy for minority

groups that “Prevent” seeks to bring about. “Prevent” states: ‘“Prevent

depends on a successful integration strategy” (“Prevent” at para 3.14).

Theological dissent shown by the applicants’ views brings theology in line

with a pluralistic democratic society with different views and opinions.

The acceptance of pluralism and dissent amongst religious groups is

clearly fundamental to the prevention of terrorism and to creating

community cohesion. Exclusion would have directly the opposite effect by

entrenching a lack of tolerance and related extremism.

(iii). The “Prevent” policy has been relied on by successive Governments

and the Secretary of State since 2005. It thus is regular practice that the

government can be expected to follow, and as such, forms the basis of a

legitimate expectation. As Lord Fraser stated in Council for Civil Service

Union v Minister for Civil Service [1985] AC 374 at 401B: “Legitimate . . .

expectation may arise either from an express promise given on behalf of

35

a public authority or from the existence of a regular practice which

the claimant can reasonably expect to continue”.

Recently, the Secretary of State has, six years after the creation of

“Prevent”, relied on “Prevent” on 7 Jun 2011 (Hansard: 7 June 2011

Column 52). Consequently, the existence of “Prevent” is “regular state

practice which the claimant can reasonably expect to continue”.

It is, moreover, clear law that legitimate expectations may fetter the

discretion of the Secretary of State to exclude persons on an absolute

basis. The Court of Appeal allowed legitimate expectations to fetter the

discretion of the exercise of power in R v North and East Devon Health

Authority ex p. Coughlan [2001] QB 213, CA. Hence, the Secretary of

State must be open to different forms of reliance on the “Prevent” strategy

to the extent that it is permissible for the Court to provide a legitimate

expectation based on “Prevent” that fetters the discretion of the Secretary

of State to exclude.

(iv). The Secretary of State has also breached the Applicants’ legitimate

expectation that Articles 9, 10 and 11, 14 and 17 of the ECHR will not be

breached. A legitimate expectation can also be based on the existence of a

convention right where there is government policy indicating that the

presence of the Applicants in the UK is conducive to the public good (see

by analogy per Lord Woolf MR in R v North and East Devon Health

Authority ex p. Coughlan [2001] QB 213 (CA) at paras 90-93).

Accordingly, the Applicants’ exclusion was not permissible. Their

exclusion is contrary to their legitimate expectation, namely that their

entry is conducive to the public good in accordance with “Prevent”. The

language in s.3 (1) of the Immigration Act 1971 places a positive obligation

on the Secretary of State to include persons within the UK whose presence

would be conducive to the public good.

(v). In any event, the Secretary of State allowed the wreath to be laid in the

absence of the Applicants which constitutes an impermissible evisceration

of the Applicants’ legitimate expectation that they will be allowed to

undertake such peaceful activity in the UK.

36

Procedural impropriety

77. Given that the “imminent” test in Laporte was never applied by the

Secretary of State to its fact finding process, the subsequent decision to

exclude the Applicants is procedurally improper or tainted with

procedural impropriety. The decision thus must be annulled.

78. It is clear, moreover, from the authorities that it is essential for the

Secretary of State to be adequately and fully informed of the relevant facts.

Indeed, the wider the discretion, the more important it is that the

Secretary of State has all the relevant material to enable her to properly

exercise it: see R v Secretary of State for the Home Department ex p

Venables [1998] AC 407 (CA) 453F; 466G. A failure to conduct adequate

enquiries is a ground of review: see R v Kensington and Chelsea Royal

London Borough Council ex p. Silchenstedt (1997) 29 HLR 728.

79. The Courts are not thus powerless to intervene. The Secretary of State

relies on the decision in Farrakhan. That case is plainly distinguishable.

In Farrakhan violent protests were already taking place leading to the

arrests of several members of the nation of Islam. There exists no evidence

of such violence in the present case. In any event, the case of Farrakhan

was considered by the Court of Appeal in Naike where their Lordships

held thus:

“the modern law is not fully reflected in Farrakhan, or the other cases

cited by the judge. The position which emerges is reasonably clear.

Ministers, accountable to Parliament, are responsible for national

security; judges are not. However, even in that context, judges have a

duty, also entrusted by Parliament, to examine Ministerial decisions or

actions in accordance with the ordinary tests of rationality, legality, and

procedural regularity, and, where Convention rights are in play,

proportionality. In this exercise great weight will be given to the

assessment of the responsible Minister. However, where rights under

Article 10 are engaged, given the special importance of the right to free

speech, it is for the Court, looking at the interference complained of "in

37

the light of the case as a whole", to determine whether the reasons given

to justify the interference were "relevant and sufficient". This will involve

a judgment whether the measure taken was proportionate to the

legitimate aims pursued, based on "an acceptable assessment of the

relevant facts", and in conformity with the principles embodied in Article

10 (see Cox above). A range of factors may be relevant, including

whether the speaker occupies "a position of influence in society of a sort

likely to amplify the impact of his words" (para 42 above). The

supervision must be "strict", because of the importance of the rights in

question, and the necessity for restricting them must be "convincingly

established". [para 48].

80. The present case is not a case involving national security issues. The

supervision must be strict. The necessity for the restrictions into the

Applicants’ free speech must be convincingly established, which cannot be

established on the facts of the present case. The decision of the Secretary

of State to exclude the Applicants was procedurally improper. The

Secretary of State was not presented with the full picture, failed to take

into account relevant facts, and/or failed to conduct an enquiry into the

relevant facts. The Applicants rely on the following facts to demonstrate

procedural impropriety falling within the Court’s review functions:

1. The Secretary of State did not take into account the Applicants’

personal views about the subject matter of the exclusion. In the

case of (Khatum) v London Borough of Newham [2004] EWHC

Civ 55 Laws LJ held that the duty of a decision maker to have

regard to relevant consideration may require him/her to take into

account the person’s views about the subject matter.

2. The Secretary of State based her decision on political

considerations, in that the letter from the Metropolitan Police

contains a threat from the Leader of the Council and the Chief

Executive. The threat states, if the Applicants were allowed to

address the rally, they would make cross party and community

representations. Following this letter dated 24th June 2013, the

38

Secretary of State decided to exclude the next day on 25th June

2013 despite the fact that, on the materials before the Secretary of

State, the visit was not due to take place until 29/6/2013. This

meant that the Secretary of State made a rapid decision taking into

account an immaterial consideration and/or her decision was

tainted with a improper purpose: see Local Commissioners for

Administration in North and North East England ex part

Liverpool City Council [2001] 1 All ER 462 [36]; R v Secretary of

State for Foreign and Commonwealth Affairs, ex p World

Development Movement Ltd [1995] 1 WLR 386, 398C-D. It is to be

noted that the email in response to the above threat does not reveal

the identity of the decision maker. The Court is entitled to see that

discretion is not exercised for an improper motive: see Laker

Airways.

3. The Secretary of State failed to make any further enquiry into

whether the alleged threat of inter community violence could be

avoided through police powers by banning orders, area exclusions

and/or by restricting the Applicants’ visit to a private one. These

powers were readily available to the police under the Public Order

Act 1986 and following the reasoning in R v Laporte ought to have

been used. The police report expressly mentions instances where

the police intervened by way of banning orders to prevent disorder

without making any arrest. The police submissions referred to

above, however, do not make available any evidence regarding

whether it was possible to curtail the alleged threat through law

enforcement.

4. The Secretary of State failed to take into account the following

relevant facts:

1. The Applicants were opposed to violence and their views were

theological views, which are required to be received under the

“Prevent” policy and/or in the general public interest.

39

2. The right of assembly and/or protest of other interested groups

such as Muslims and/or other minorities such as certain Jewish

groups who, on the evidential materials, were said to be

sympathetic to the Applicants.

3. The public’s right to be informed of a different perspective

irrespective of how unpalatable that perspective may have been,

since the ECHR required her to do so: see Surek and Ozdemir v

Turkey7 referred to in paragraph 88 below.

4. That, even on the redacted material presented by the MP, the

protests recorded in You Tube were peaceful protests. Any threat

could, and should, have been curtailed by law enforcement.

5. That the Applicants had published numerous books on the topic

of Islam, for which they received excellent reviews and that in a

pluralistic society of dissent, there was a public interest in the

debate advanced by the Applicants.

6. The material subject to the exclusion was already freely available

in the UK on the internet, and had not caused any public disorder

in the UK.

7. There were numerous Muslims in the US who had not reacted to

commit a public disorder offence when dealing with the

Applicants’ work.

8. The available materials did not justify a factual basis for the

existence of a risk or appropriate degree of risk that the

Applicants’ views may lead to inter community violence. There

was no situation that was about to descend into violence, as

required by the reasoning in Laporte. The MP report, for

instance, identifies instances where the police had intervened to

cancel a rally without any arrests.

7 8 July 1999, Application Nos. 23927/94 and 24277/94, para 61.

40

9. Contrary to Article 14 (see below), the evidence gathered was

almost entirely one sided, and failed to present similar views to

those of the Applicants from other organizations within the UK,

including organizations and individuals such as:

(1). EDL.

(2). Geert Wilders.

(3). Paul Weston.

(4). UKIP (Lord Pearson).

(5). Richard Dawkins.

(6). Douglas Murray.

(7). Melanie Phillips.

10. The Applicants had a complete defence to their speech and

conduct pursuant to s. 29J of the Race and Religious Hatred Act

2006 and/or domestic common and international law.

11. The Secretary of State did not take into account the Applicants’

Articles 9, 10, 11, 14 and 17 rights and gave no reasons as to why

those rights were outweighed. No reasons were given on the basis

upon which the situation in the UK was about to descend into

violence and/or otherwise.

Inadequate reasons were given in support of the decision that

there may be inter-community violence arising from the

expression of the Applicants’ views.

Article 10 of the ECHR/International law

81. The Secretary of State’s decision to exclude the Applicants breaches their

rights under Article 10 of the ECHR and/or is contrary to international

law.

41

82. Article 10 of the ECHR states:

"(1) Everyone has the right to freedom of expression. The right shall

include freedom to hold opinions and to receive and impart information

and ideas without interference by public authority and regardless of

frontiers. This article shall not prevent States from requiring the

licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are necessary in a

democratic society, in the interest of national security, territorial

integrity or public safety, for the prevention of disorder or crime, for the

protection of health or morals, for the protection of the reputation or right

of others".

83. The Applicants were meeting individuals here in the UK and intended to lay

flowers at the memorial site of Lee Rigby together with other freedom-loving

individuals in the UK. The Applicants were excluded from the UK because it

was alleged that they would continue to “espouse” their views.

84. Freedom of expression under Article 10 protects the right to receive

opinions and information, as well as the right to express them. Article 10

prohibits the State from restricting the receipt by an individual of

information that others wish or may be willing to impart.8

85. The right to receive and impart ideas is of such importance has been

described as the “lifeblood of democracy”.9

86. Freedom of expression encompasses expression in any medium, including

symbolic acts such as laying of flowers, which is analogous to displaying a

8 Leander v Sweden (1987) 9 E.H.R.R. 433 (para 74).

9 London Regional Transport v The Mayor [2003] E.M.L.R.4, CA per Sedley LJ, para 55.

42

banner or exhibiting a painting to which Article 10 extends: see X v

Germany (Application No. 9235/81) 29 DR 194; Muller v Switzerland

(1988) 13 EHRR 212.

87. Freedom of expression is also guaranteed under Article 19 of the

International Covenant on Civil and Political Rights (ICCPR).10 It is one of

the essential foundations of a democratic society and includes the right not

only to express “ideas that are favourably received”, but also those that

“offend, shock or disturb” (Sunday Times v UK (No. 2) [1992] 14 EHRR 123,

para 65). In modern, pluralistic democracies, there are few matters worth

debating that will not elicit a viewpoint that someone will find offensive,

shocking, or disturbing. Consequently, as his Lordship, Lord Justice Sedley,

aptly observed in Redmond Bate v DPP (2000) H.R.L.R. 249 "Freedom only

to speak inoffensively is not worth having".

88. Both the ECHR and the ICCPR protect, not only the right of every person to

express themselves, but the right of the public at large to hear a wide range

of points of view, including those which some may find shocking or

offensive. This is illustrated by the case of Surek and Ozdemir v Turkey11 in

which the ECHR found a violation of freedom of expression where a

newspaper had printed an interview with a PKK activist calling for a

separate Kurdish state. Noting the public’s right to hear different points of

view, the Court held that “the domestic authorities in the instant case failed

to have sufficient regard to the public’s right to be informed of a different

perspective on the situation in south-east Turkey, irrespective of how

unpalatable that perspective may be for them”.

89. In Nolan v Russia App 2512/04 6th July 2009, it was held that a state must

exercise its immigration controls consistently with its convention

obligations when dealing with foreign nationals. In Farrakhan v Secretary of

10 Adopted and opened for signature, ratification and accession by UN General Assembly Resolution 2200A (XXI), 16 December 1966, entered into force 3 January 1976.

11 8 July 1999, Application Nos. 23927/94 and 24277/94, para 61.

43

State it was held (whether by concession or otherwise) that Article 10 of the

ECHR was engaged, even though Mr Farrakhan, was a US national outside the

UK.

90. In Cox v Turkey [2010] Imm AR 4 it was held:

"31. The Court considers that the ban on the applicant's re-entry is

materially related to her right to freedom of expression because it

disregards the fact that Article 10 rights are enshrined "regardless of

frontiers" and that no distinction can be drawn between the protected

freedom of expression of nationals and that of foreigners. This principle

implies that the Contracting States may only restrict information

received from abroad within the confines of the justifications set out in

Article 10 § 2 (Autronic AG v. Switzerland, 22 May 1990, §§ 50 and 52,

Series A no. 178). The scope of Article 10 of the Convention includes the

right to impart information. The applicant is precluded from re-entering

on grounds of her past opinions and, as a result, is no longer able to

impart information and ideas within that country. In light of the

foregoing, the Court concludes that there has been an interference with

the applicant's rights guaranteed by Article 10 of the Convention. The

Court will thus proceed to examine whether that interference was

justified under the second paragraph of that provision." [para 31].

91. In Naike v Secretary of State for the Home Department [2011] EWCA Civ the

Court of Appeal held (without deciding the point finally):

“a line of more recent Strasbourg authorities supports a wider view of

article 10, emphasis being placed on the words "regardless of frontiers.

Thus in Cox v Turkey [2010] Imm AR 4, the court held that article 10 was

engaged by the ban on the re-entry of a US woman who had expressed

strong views on issues of Kurdish assimilation and the treatment of

Armenians. The court mentioned a recent case (Women On Waves v.

Portugal, no. 31276/05 3rd Feb 2009) in which it had –

44

"… examined a ban imposed by the Portuguese authorities on a ship

whose crew was about to launch a campaign in Portugal in favour

of the decriminalisation of abortion. The ban which effectively

prevented the ship from entering Portuguese territorial waters was

held by the Court to amount to an interference with the applicants'

right to freedom of expression." (para 29)

Reference was also made to a case to similar effect under article 9:

Nolan v Russia App 2512/04 6th July 2009). The judgment in Cox

continued:

"31. The Court considers that the ban on the applicant's re-entry is

materially related to her right to freedom of expression because it

disregards the fact that Article 10 rights are enshrined "regardless

of frontiers" and that no distinction can be drawn between the

protected freedom of expression of nationals and that of foreigners.

This principle implies that the Contracting States may only restrict

information received from abroad within the confines of the

justifications set out in Article 10 § 2 (Autronic AG v. Switzerland, 22

May 1990, §§ 50 and 52, Series A no. 178). The scope of Article 10 of

the Convention includes the right to impart information. The

applicant is precluded from re-entering on grounds of her past

opinions and, as a result, is no longer able to impart information

and ideas within that country. In light of the foregoing, the Court

concludes that there has been an interference with the applicant's

rights guaranteed by Article 10 of the Convention. The Court will

thus proceed to examine whether that interference was justified

under the second paragraph of that provision." (para 31)…

the modern jurisprudence tends to support the approach adopted by

this court in Farrakhan, The judgments in Women on the Waves and

Cox provide persuasive support for the argument that article 10, at

least, is not limited by the same strict principle of territoriality as

applies to other parts of the Convention. That view is reinforced by

Mr Eadie's concession. It is difficult to see any logic in treating an

45

applicant less favourably because he takes the sensible course of

applying for entry clearance from abroad, rather than simply

arriving at border control at Heathrow…”.

92. Contracting states are bound to secure the rights and freedoms under the

ECHR to all persons under their actual authority and responsibility, whether

that authority is exercised within their own territory or abroad: Cyprus v

Turkey (1976) 4 EHRR 482 , 586, para 8.

93. In Smith v Ministry of Defence [2013] 3 WLR 69 it was held that a state's

agents and those whom they affected when exercising authority and control

on the state's behalf were brought within the state's Article 1 jurisdiction by

reason of this principle.12 The list of circumstances in which control can be

exercised is not closed.

94. Consequently, Article 10 is engaged and/or interfered with in the present case,

even though the Applicants are US citizens, due to the following reasons:

1. The Applicants were due to visit the UK and meet UK citizens whose

Article 10 rights are engaged and evoked.

2. The Second Claimant has a substantive connection with the UK; having

already visited the UK without any obstruction.

3. The Applicants have a large body of supporters here in the UK who have

signed a petition in the thousands seeking the entry of the Applicants into

the UK so that they can receive and impart with their ideas.

4. The decision of the Secretary of State must be exercised consistently with

the Convention, and the act of exclusion amounts to the exercise of

authority or control over the Applicants in the US, thereby bringing them

within the jurisdiction for the purposes of convention rights.

12This is consistent with Isa v Turkey (2004) 41 E.H.R.R 567, at 74 where the Court held

that jurisdiction arises whenever victims of human rights abuses are under the control of the

state operating through its agents.

46

5. The Applicants’ exclusion amounts to a substantial interference with their

right to freedom of expression (see para 95 below).

Prescribed by law

95. The interference in question must have some basis in domestic law, and the

phrase "law" covers not only statute law, but also unwritten law and/or a

regulation (Sunday Times v UK (No.1) App. 6538/74, para 47; Golder v UK

(1975) 1 EHRR 524, para 45; Silver v UK [1979] 2 EHRR 245, para 86).

96. The law must be adequately accessible: the citizen must have an indication

that is adequate in the circumstances of the rules applicable to a given case.

A norm cannot be regarded as law unless it is formulated with sufficient

precision to enable the citizen to regulate his conduct: he must be able if

need be with appropriate advice to foresee, to a degree that is reasonable in

the circumstances, the consequences which a given action may entail

(Sunday Times v UK, para 49).

Is the exclusion prescribed by law?

97. The Applicants contend that the decision to exclude them does not pass the

prescribed by law test for the following reasons:

1. For the reasons referred to above, the exclusion was an abuse of power.

2. For the reasons referred to above, the Applicants have been excluded on

the basis of a policy which is unlawful and has not been approved by

Parliament. The decision of the Secretary of State is based on a

misapplication of the rules and the policies. The decision, therefore,

has no legal basis in domestic law in any event (see Silver v UK, para

86).

47

3. The Applicants’ views on Islam, on the Secretary of State’s own evidence

referred to above, amount to nothing more than criticism of Islamic

extremism. Such views are permissible under the common law (see

Redmond v Bate). The Applicants’ views are sanctified by Parliament

under section 29 J of the Race and Religious Hatred Act 2006. In order

for the Applicants to be deprived of the protection under s. 29J, they

have to advocate violence towards Muslims. But the available materials

placed before the Secretary of State referred to above show that the

Applicants do not advocate violence towards Muslims. They seek to

criticise the extremist ideology directed towards the West and all people

targeted by Jihad in particular Jews, Christians, Copts, Hindus, Bahais,

Buddhists, and Sikhs.

4. The Unacceptable Behavours policy introduces an open ended

absolute discretion and infringes the requirement of certainty in that

“it does not provide for the scope of the discretion and the manner of

its exercise with sufficient clarity, having regard to the legitimate

aim of the measure in question, to give the individual in question

adequate protection against arbitrary interference”: Gillow v United

Kingdom (1989) 11 EHRR 335 at 51. Para 47 above is repeated. This

undermines the objective of formulating the list in the first place,

which was to clarify the Home Secretary’s powers to deal with the

prevention of terrorism under the “Prevent” strategy. Rather, it allows

the Secretary of State to exclude at will through use of powers used

and intended to curtail terrorism rather than free speech. The

operative term “express views which may lead to intercommunity

violence” is not defined. It does not distinguish between permissible

speech under s.29J on the one hand and impermissible speech such

as glorification of terrorism on the other. A key problem with the term

is that it fails to distinguish between social or even academic

discussions about the role of violence, on the one hand, and actual

exhortations to violence, on the other. The policy could be used to

48

exclude legitimate historical and theological discussions concerning

the basis of Jihad. Open discussion and critical thought in this area is

particularly required at present, and the contested rules run directly

counter to this social need. The operative term in question captures

forms of expression which may offend and disturb, which are yet

entirely legitimate under the English common and statute law. This

term, moreover, fails to take into account the reasoning of the House

of Lords in Laporte and explain that there has to be a direct and

immediate connection with the expression and the imminent

violence.

A legitimate exclusion cannot be prematurely achieved without

identifiable evidence indicating that law enforcement cannot contain

actual or imminent violence. The operative degree of threat is,

moreover, left undefined. It is evident from discussions in cases

involving national security issues concerning exclusion under the

2006 EEA regulations that nothing less than “a serious risk to public

security” would suffice and the evidence establishing that risk must

be “cogent”.13 In the policy, it is not possible to discern whether the

threat has to be a serious threat or something less than serious would

suffice, which renders it impossible to foresee with appropriate

advice, to a reasonable degree, the consequences which the

Applicants’ action may entail. For all these reasons, the policy does

not, therefore, pass the prescribed by law test.

In order to pass this test the policy must follow the Johannesburg

principles, adopted by a group of experts from around the world.

These show that the restrictions on freedom of expression in the

name of national and public security may be imposed only where the

13 See Bonsignore v Stadt Koln [1975] ECR 297, page 316 column 1 and page 315 column

1, para 3.

49

speech was intended to incite imminent violence. There must exist a

direct and immediate connection between the expression and the

likelihood or occurrence of such violence. In order to comply with the

certainty principle, the policy needs to be redrafted with

Parliamentary approval so that it reads:

“may lead to community violence means:

Expression is intended as a threat to national and/or public

security only if a government can demonstrate that:

1. The expression is intended to incite imminent violence;

2. It is seriously likely to incite such violence; and

3. There is a direct and immediate connection between the

expression and the serious likelihood or occurrence of such

violence”.

Is the decision necessary in a democratic society? Is the decision proportionate?

98. Whether measures are necessary and proportionate in the instant case is, as

the Court of Appeal held in Naike, for the judgment of the Court (see para 79

above). The word necessary entails a consideration of whether: (i). the

interference corresponds to a pressing social need; (ii). is proportionate to

the legitimate aim pursued; and (iii). the reasons given by the national

authorities for the measure are relevant and sufficient under Article 10 (2)

(Sunday Times v UK, para 62). In assessing whether the interference

complained of was based on sufficient reasons which are rendered necessary

in a democratic society, account must be taken of the public interest aspect of

the case (para 65). The Applicants contend that the decision to exclude them

is not necessary because it is: (1) disproportionate; (2) does not correspond

to a pressing social need; (3) is based on reasoning which is wholly

50

unsatisfactory; (4) there exists no public interest in exclusion.

99. Given that the state has misused the prevent policy through the Applicants

exclusion, it is has undermined the fight against terrorism and thereby

compromised public trust and confidence in anti terrorism law.

Consequently, it is not open to the Secretary of State to rely on any of the

exceptions in Article 10 (2).

100. Contrary to the Secretary of State’s response to the pre-action letter, the act

of laying flowers at the site that Drummer Lee Rigby was murdered, and

receiving and imparting ideas with others in the UK through that method, is

not something which can be performed through alternative means from the

US or elsewhere. The form and method of expression in the instance case

constitutes the very essence or quality of the expression which the

Applicants seek to exercise. This is a case where that essence is destroyed

through the exclusion. Contrary to the Secretary of State’s post decision

letter, the restriction on the Applicants’ right is total or at the very least

extremely substantial. The Secretary of State’s contention was in any event

rejected by Laws LJ in Tabernacle v Secretary of State [2009] EWCA Civ

23. In that case, bye laws preventing the maintenance of the long-standing,

one weekend a month, Aldermaston Women’s Peace Camp (protesting on

Government-owned open land against nuclear weapons) were held to breach

the protesters’ Convention rights. As Laws LJ said at para 37, “the camp has

borne consistent, long-standing, and peaceful witness to the convictions of

the women who have belonged to it”, and, to the protesters, ‘the manner

and form” is the protest itself”. The analogy between that and the present

case is telling. Laws LJ proceeded to hold that the Secretary of State “must

demonstrate a ‘substantial objective justification… amounting to an

undoubted pressing social need for exclusion”. This is consistent with the

reasoning of the European Court of Human Rights in Ashingdale v The

United Kingdom (1985) 7 EHRR 528 at para 57 where the Court held:

51

“Nonetheless, the limitations applied must not restrict or reduce the

access left to the individual in such a way or to such an extent that the

very essence of the right is impaired…”.

101. It is to be noted that following the reasoning of their Lordships in R v

Laporte, state authorities are under a positive duty to ensure that lawful

assemblies take place without interference from third parties. As Sedley J

(as he then was) held in Redmond v Bate at para 18:

“If the threat of disorder or violence was coming from passers-by who

were taking the opportunity to react so as to cause trouble (like the

Skeleton Army in Beatty v Gilbanks), then it was they and not the

preachers who should be asked to desist and arrested if they would

not”.

102. Even if the decision in question was prescribed by law (which is denied), it

is not necessary in a democratic society on the grounds of one or more of

the considerations stated in Article 10 (2). The Applicants’ views do not

constitute hate speech, since neither of their views promote violence.

Rather the reverse: their views constitute speech which is in the public

interest, necessary to the proliferation of a public debate on whether Islam

is compatible with Western values such as liberty, equality and the rule of

law. Their views are permissible under section 29J which restricts the scope

of the derogation under Article 10 (2). Their exclusion was at the behest of a

small but obviously influential number of individuals.

103. The Applicants’ views are such that they are moderate compared to the

views of other organisations and individuals that have voiced their concerns

about Muslims in the UK, including the British National Party, in relation to

which the government has been unable to take any lawful repressive

measures. As the European Court of Justice ruled in Adouhi and Cornuaille

v Belgian [1982] 3 C.M.L.R. 631, at para 9:

52

“…. a member – State may not, by virtue of the reservation relating

to public policy … expel a national of another member – State from

its territory or refuse him access to its territory by reason of conduct

which, when attributable to the former State’s own nationals, does

not give rise to repressive measures or other genuine and effective

measures intended to combat such conduct”.

104. It is not surprising, therefore, that the police submissions document referred

to above was concerned that the minority Jewish community in the UK is

more likely to be offended through the perception of double standards. In

recent times, the UK government was forced to allow Geert Wilders entry

into the UK. The government had sought to exclude him from the UK on the

basis that his anti-Islamic views would create offence to Muslims. The ban

was overturned on appeal. The protests which took place upon the arrival of

Mr Wilders was peaceful and no violence ensued (see Tab 9, 402).

105. In Gunduz v Turkey (2005) 41.E.HR.R. 5, the issue regarding freedom of

expression arose in the context of incitement to racial hatred and hostility. A

leader of the Islamic sect took part in a live television broadcast transmitted

by a private channel. The purpose of the programme was to discuss the sect,

whose members were attracting public attention. The following April,

Istanbul State Security Court found him guilty of making statements during

the broadcast inciting people to hatred and hostility on grounds of religious

difference. In particular, it found that he had described Turkish society as

"impious", fiercely criticised secularism and democracy, and called for the

introduction of a regime based on Sharia. He was sentenced to two years

imprisonment and a fine. His conviction was upheld by the Supreme Court.

Relying on article 10 of the Convention, the applicant claimed that his

conviction had violated article 10 of the ECHR and claimed just

satisfaction. The ECHR ruled: 1. The purpose of the discussion was to determine the compatibility of

his concept of Islam and Western Values. The subject had been widely

53

discussed in the media and concerned a matter of general interest, a field

in which restrictions on freedom of expression called for strict

interpretation. The broadcast had been designed to prove an exchange of

views and to inform the public about an issue of great interest for Turkish

Society. The Applicant's views which expressed profound dissatisfaction

with contemporary Turkish institutions such as principles of secularism

and democracy could not be regarded as an appeal to violence or as hate

speech based on religious intolerance (paras 43-44).

2. Although it was difficult to declare respect for democracy and human

rights while supporting a regime based on Sharia, the mere fact of

defending Sharia, without calling for violence in order to establish it,

could not be regarded as hate speech. The Applicant’s well known

extremist views in that case were counterbalanced by the intervention of

other participants and were expressed in the context of a multi-sided

debate in which he was actively participating. The need for restriction was

not convincingly established (para 51).

106. In Piermont v France (2003) 37 E.H.R. 301, the applicant, a German MEP,

visited the French Polynesia at the invitation of a local politician and took

part in a pro-independence and anti-nuclear demonstration. As she was

about to leave, she was served with an order for her expulsion and

exclusion. She was thereafter excluded from New Caledonia. She

complained that the measures infringed her freedom of expression,

contrary to article 10. She also complained of discrimination contrary to

article 14 taken in conjunction with article 10 and contended that the

measure infringed her freedom of movement, contrary to article 2 of

Protocol 4. The ECHR found for her on all points and held:

1. Freedom of expression constitutes one of the essential foundations

of a democratic society, one of the basic conditions for its progress.

Subject to Article 10 (2), it is applicable not only to information or

ideas that are favourably received or regarded as inoffensive or as a

matter of indifference, but also to those which offend, shock or

54

disturb. Such are the demands of pluralism, tolerance and

broadmindedness without which there is no democratic society. A

person opposed to official ideas and positions must be able to find a

place in the political arena. While freedom of expression is important

for everybody, it is especially important for an elected

representative of the people. Accordingly, interferences with his or

her freedom of expression call for the closest scrutiny on part of the

Court (76).

2. Although the political atmosphere prevailing in Polynesia and the

prospect of two sects of elections are matters of some weight and the

applicant had been requested to exercise discretion when speaking in

public, her utterances were made during a peaceful, authorised

demonstration. At no time did she call for violence or disorder. She

spoke in support of the anti-nuclear and independent demands made

by several local parties and therefore contributed to a democratic

debate. Moreover, the demonstrations did not follow by disorder and

the Government did not show that the stances taken up by the

applicant caused any unrest. Accordingly, a fair balance was not

struck between on the one hand, the public interest requiring the

prevention of disorder and the upholding of territorial integrity and,

on the other, the applicant's freedom of expression. Since the measure

was not necessary in a democratic society (77- 78) .

107. In Dağtekin v. Turkey (no. 36215/97) (Violation Article 10), the applicant,

Hasan Dağtekin, was a Turkish national who was born in 1959 and lived

in Diyarbakır. At the material time he was the owner and editor of the

"Dilan" publishing house. In 1994, he published a novel written by Rıza

Çolpan, entitled "Xide Naxirvan U Tevkustina Dersim" (Xide Naxirvan

and the Genocide of Dersim). The latter criticised the pressure that

Turkey had allegedly exerted on the Kurdish people throughout history.

As a result of its publication, Ankara State Security Court, in a judgment of

14 November 1995, instructed the applicant to pay a fine for

disseminating separatist propaganda and ordered the confiscation of the

55

disputed book. That verdict was upheld by the Court of Cassation.

108. The applicant submitted that his criminal conviction had infringed his

right to freedom of expression, relying on Article 10 (freedom of

expression). The Court held that the grounds put forward by the Turkish

courts could not in themselves be considered sufficient to justify the

interference with the applicant's right to freedom of expression. Although

certain particularly acerbic passages in the book presented an extremely

negative picture of the history of the Turkish State, thus giving the story a

hostile connotation, they did not incite the use of violence, armed

resistance or insurrection; nor was the book an example of hate speech.

The Court considered that the applicant's sentence was disproportionate

to the aims pursued and, consequently, not "necessary in a democratic

society". Accordingly, it concluded unanimously that there had been a

violation of Article 10 and awarded Mr Dağtekin EUR 1,500 in respect of

pecuniary damage, EUR 2,000 in respect of non-pecuniary damage, and

EUR 2,000 for costs and expenses.

109. The Applicants’ case is analogous to the above cases with the effect that

the decision to exclude him from the UK is not necessary within article 10

(2).

110. On the evidence referred to above, the Applicants do not make a call for

violence. Both engage in theological discussion in a non-violent manner.

There was no violence that had unfolded on the streets that could have

led to inter community violence. The police are capable of controlling the

same through law enforcement. The state has not complied with its

positive obligation to ensure that the Applicants were allowed to lawfully

assemble and express their views on issues of public importance without

interference from minority groups. There is no casual connection

between the Applicants’ actions and the potential violence alleged. The

56

case of Karatas v Turkey14 is instructive. In that case it was held that

there was a violation of article 10 of the ECHR where the Claimant had

been convicted of publishing poetry which allegedly condoned violence

and glorified acts of terrorism. The ECHR held that the conviction

constituted a violation of the Applicants right to freedom of expression.

Emphasising that there was no causal connection between the poems

and violence, the Court held:

“There is little scope under Article 10 (2) of the Convention for

restrictions on … debate on matters of public interest… In a

democratic system the actions or omissions of the government must

be subject to the close scrutiny not only of the legislative and judicial

authorities but also of the public opinion... Even though some of the

passages from the poems seem very aggressive in tone and to call for

the use of violence, the Court considers that the fact that they were

artistic and of limited impact made them less a call to an uprising

than an expression of deep distress”.

111. The Second Applicant is a respected Islamic scholar having taught

seminars on Islam and Jihad for the United States Central Command,

United States Army Command and General Staff College, the U.S. Army’s

Asymmetric Warfare Group, the FBI, the Joint Terrorism Task Force, and

the US intelligence community.

112. The First Applicant is also a respected author and human rights activist,

having published innumerable books on the topic of Islamic extremism,

for which she has received glowing reviews.

113. The US is the Applicants’ home country. There is no evidence that the

Muslims in that country have been violent as a result of the Applicants’

views and/or conduct. Nor is there evidence that the Secretary of State has

directed her mind to this issue at all.

14 8 July 1999, Application No. 23168/94, paras 50-52.

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114. The evidence accepts that the First Applicant “advocates defence against

the spread of extreme Islam”. In relation to the Second Applicant, there

exists the same acceptance in the evidence.

115. The Applicants’ criticism is directed to radical Muslims who pose a threat

to civilisation. Both Applicants draw a distinction between Muslims and

Islamic extremism. The Applicants have openly on the materials called for

Muslims to stand with them in their fight for freedom. A former Muslim

apostate girl was assisted by the First Applicant, which enabled her to

escape from her violent family.

116. In any event, the Applicants’ comments fall within section 29J and cannot

found a basis to exclude.

117. The Applicants engage in a theological debate which highlights how

radical and extreme Islam poses a threat to Western civilisation through

use of the concept of Jihad against the unbelievers, in particular Jews,

Copts, Hindus, Buddhists, Bahais, apostates from Islam, and gays. Such

criticism is justified in the public interest because it promotes a significant

debate regarding the parts of Islam acceptable in a Western democratic

society. This is particularly important in light of terrorist activities

committed in the name of Islam in Israel, the Palestinian Authority, and

elsewhere around the world, including the UK and the US.

118. On the Secretary of State’s evidence, the Second Applicant’s blog “won the

people’s choice blog award”, and, therefore, there was a countervailing

public interest in the Applicants’ views.

119. The complete exclusion on the Applicants was unnecessary, as the police

could have evoked their powers to exclude from certain areas, and confine

the visit to one which was a private one, if necessary. The evidential

material placed before the Secretary of State failed to assess whether the

police powers would be sufficient to deal with any alleged threat of inter

community violence. It is to be noted that, when Mr Wilders visited the

UK, it was reported that the police ensured that groups were kept separate

(Tab 9, 402). The same could have been achieved in the present case.

58

120. The decision to exclude the Applicants is heavily influenced in both cases

by the evidence that certain Muslims will be offended if the Applicants are

allowed to espouse their views which are insulting to them. But this

ignores that the law permits expression which is offensive. It, moreover,

seeks to trivialise the fact that Muslims will be protected through law

enforcement in the UK.

121. A message may be offensive and even insulting to moderate Muslims. But

Parliament has recognised that speech that merely insults people on the

basis of their religion is part of a legitimate public debate in a free and

democratic society: see s.29J and per Sedley LJ in Redmond v Bate for the

common law position. Indeed, “[T]o present it as a virtue [that the

common law of England already accepts the standards of Article 10] is to

trade on the widespread but mistaken view that accommodating

international human rights jurisprudence is the same thing as respecting

human rights. There could come a point, indeed, where it would be better

to have no Convention on Human Rights at all than one that can be used

to legitimate and congratulate any decision under the sun”.15

122. The Applicants’ message is far from offensive. It cannot in any event form a

basis to exclude. For such views are relevant to matters within the people's

collective decision making authority, including immigration policy,

whether there is a role for Sharia in Britain, and the attitude state schools

and other public institutions should adopt towards Muslim customs,

including the veiling of women and girls. It is thus a perspective that,

despite the offence or insult it may cause, must be allowed to be expressed

in a democratic society on the basis that it is necessary to the proliferation

of a public debate in a society where bad ideas area superseded by better

ones. The Applicants’ views are relevant to current rule making and policy in

the UK, such as for instance, Baroness Cox’s Sharia Law Bill to combat

Islamic tribunals in the UK.16

15 J. Gardner, Freedom of Expression in C. McCrudden and G. Chambers (eds.), Individual

Rights and the Law in Britian (OUP, 1994), pp. 209-238, at p 236.

16 The Arbitration and Mediation Services (Equality) Bill, HL Bill 7; 55/2; 10th May 2012.

59

123. For all the obvious hollowness of the decision of the Secretary of State, it

amounts to no more than the notion that the right to free speech must be

held in balance with the requirement to avoid offence, even if it means

making a decision contrary to the law. That is wrong. There is no right to

have one's emotional sensibilities protected: it is not the business of

government to legislate for such feelings.

124. It cannot be proportionate, as required by Article 10 of the ECHR to

conclude in the abstract, in advance, and without first trying reasonable

security measures, that the Applicants’ conduct will cause reactions that

threaten community harmony.

125. Indeed, Part II of the Public Order Act 1986 contains a requirement that

there be advance notification to a police station of any public processions

intended to demonstrate against any person or body of persons (see

section 11 of the Public Order Act 1986). If the senior police officer

believes that there would be serious public disorder, serious damage to

property or serious disruption to the life of the community, he may give

directions imposing on the persons organising or taking party in the

procession such conditions as appear necessary to prevent such disorder,

damage, disruption or intimidation (see section 12 of the Public Order Act

1986). Measures to prohibit any public procession are also available (see

section 13 of the Public Order Act 1986). No such measures were taken or

felt necessary because no procession was taking place in opposition to the

Applicants’ arrival.

126. The above analysis accords with the principles of tolerance and respect.

Certain Politicians may well seek to suppress insulting speech in the

sense defined in section 29J for reasons which have more to do with

electoral advantage than a genuine commitment to the values of tolerance

and respect.

60

127. Indeed, values of tolerance and respect can be placed in jeopardy where

a powerful minority acting through their political representatives invoke

"offence" to stifle majority or unpopular viewpoints.

128. The temptation to acquiesce in the official suppression of views with

which we disagree or even loathe, because their public expression offends

our sensibilities, should additionally be resisted. For on a subsequent

occasion, it may be our speech or that belonging to persons with whom we

agree that is targeted.

129. The causing of offence rarely constitutes a sound basis for restraining

speech or conduct. Unfortunately, it is the folly of human conceit that

people take offence at many socially useful or even necessary activities. To

offer an example: undoubted offence would have been caused as recently as

several decades ago in parts of the United States by couples of mixed colour

strolling arm in arm down the main street. The position is now different.

130. If suppression of speech were allowed merely to prevent offence to

religious belief, expression is liable to be curtailed by reference to the

standards of some of the least tolerant, most easily outraged members of

society. Such a basis for prohibiting expression produces an ironic result

for liberal democracies. In trying to accommodate differences out of a

commitment to pluralism and the equal worth of alternative conceptions

of good life, the lack of tolerance on the part of certain of the

accommodated groups provides the basis for curtailing the freedoms of the

rest.

131. It follows, therefore, that the Applicants’ speech cannot be restricted. For a

general prohibition against hurting religious feelings would put public

discourse at the mercy of the sensitivity of religious groups, and

particularly the most militant amongst them.

61

132. The Applicants’ case is similar to a line of cases above where the ECHR

found a breach of article 10 of the ECHR in circumstances where the

views of the applicants in those cases could not be regarded as hate speech

and the measures in those cases were held to be disproportionate.

133. The cases of Otto Preminger Institut v Austria (1994) 19 EHRR 34 and

Wingmore v UK 1996) 24 EHHR 1 can be distinguished.

134. In Wingmore v UK, the ECHR upheld a refusal by the relevant

broadcasting authority to classify a video depicting St Theresa in a state of

sexual ecstasy as consistent with article 10 on the ground that it was

blasphemous. The Court held that the law of blasphemy was sufficiently

clear to satisfy the requirement that it should be prescribed by law. The

UK has, however, now abolished blasphemy after the publication and

subsequent furore over the book: Satanic Verses (see Criminal Justice and

Immigration Act 2008, s. 79). Consequently, this authority has no

relevance. In any event, the decision proceeds on the basis of a concession

(para 43).

135. In Otto Preminger Institut v Austria, the Court upheld the seizure and

forfeiture of a film which portrayed the founding figures of Christianity

(and some other religions) in a deeply offensive manner. Again that

decision proceeds on the basis that (1) the video was not in circulation and

(2) the laws of blasphemy applied. In the present case, the Applicants’

views were widely available to the world at large prior to the Applicants’

exclusion, the laws of blasphemy do not apply, and the Applicants enjoy

protection under section 29 J. Otto Preminger was criticized in I.A. v

Turkey (2007) 45 EHRR 30, a case concerning a criminal conviction for

blasphemy. In dissenting judgments Judges Costa, Cabral Barretto, and

Judgwiert made the following points: that a democratic society is not a

62

theocratic one, and that in their view, it placed too much emphasis on

conformism of freedom of the press (paras 01-5-8).

Article 11 of the ECHR

136. Article 11 concerns freedom of assembly and association. It states:

"Everyone has the right to freedom of peaceful assembly and to freedom

of association with others, including the right to form and to join trade

unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than

such as are prescribed by law and are necessary in a democratic society

in the interests of national security or public safety, for the prevention of

disorder or crime, for the protection of health or morals or for the

protection of the rights and freedoms of others. This article shall not

“Prevent” the imposition of lawful restrictions on the exercise of these

rights by members of the armed forces, of the police or of the

administration of the State".

137. Article 11 is engaged for the same reasons as those that apply to Article 10.

138. In Sergey Kuznetsov v Russia, (App. No. 10877/04) [2008] ECHR 1170,

the Strasbourg Court held:

“… the right to freedom of assembly covers both private meetings and

meetings on public thoroughfares, as well as static meetings and public

processions; this right can be exercised both by individual participants

and by those organising the assembly….”

139. Article 11 also carried with it the positive obligations which require a state

to take steps to ensure that other individuals or groups do not interfere

with the right to peaceful assembly by violent counter demonstrations:

Platform Artzefur das Leben v Austria (1988) 13 E.H.R.R 204, para 32;

63

Wilson v United Kingdom (2002) 35 E.H.R.R. 20, 47-48. As the Court

held in Platform Artzefur:

“A demonstration may annoy or give offence to persons opposed to the

ideas or claims that it is seeking to promote. The participants must,

however, be able to hold the demonstration without having to fear that

they will be subjected to physical violence by their opponents; such fear

would be liable to deter associations or other groups supporting common

ideas or interests from openly expressing their opinions on highly

controversial issues affecting the community. In a democracy the right to

counter demonstration cannot extend to inhibiting the exercise of the

right to demonstrate…

Genuine, effective freedom of peaceful assembly cannot, therefore, be

reduced to a mere duty on the State not to interfere… Article 11

sometimes requires positive measures to be taken, even in the sphere of

relations between individuals, if need be”.

140. Clearly, the Applicants’ exclusion from the UK constitutes an interference

with Article 11 of the ECHR. For the reasons referred to in relation to

Article 10, the interference was not justified particularly since (i) there was

no exclusion of EDL members who were able to assemble; (ii) there was

no situation that was about to descend into violence; (iii). if there were

such a situation, under the Public Order Act there were measures that

could, and should have been taken to ensure that other individuals did not

interfere by way of violent demonstrations in a peaceful assembly on

Armed Forces Day; (iv). no incident of out of control violence was in any

event reported; (v). the restriction was not otherwise necessary or

proportionate.

Article 9 of the ECHR

141. Article 9 in so far as material states:

“Everyone has the right to freedom of thought, conscience….; this right

includes.. freedom, either alone or in community with others and in public

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or private, to manifest his …belief, in … practice..

Freedom to manifest one’s …beliefs shall be subject only to such limitations

as are prescribed by law and are necessary in a democratic society in the

interests of public safety, for the protection of public order, health or

morals, or for the protection of the rights and freedoms of others”.

142. Article 9 applies to the Applicants who are US nationals for the same reasons

referred to in relation to Article 10.

143. Article 9 applies to the present case. This is because it involves the Applicants’

important freedom to hold their beliefs and conscience against Islamic

extremism by laying a wreath at the memorial site of soldier Lee Rigby in

community with others irrespective of whether their beliefs amount to a

religious belief: see the decision of the House of Lords in R Williamson) v

Secretary of State [2005] 2 AC 246, para 16.

144. The Applicants’ right to hold their belief and conscience is absolute and cannot

be qualified: R (Williamson) v Secretary of State. As Professor T.R.S Allan

aptly put it in his book Constitutional Justice: A Liberal Theory of the Rule of

Law (Oxford University Press 2003) at page 7-8:

“The central role of conscience in the identification and interpretation of

law demands recognition of a limited, but absolute, sphere of freedom of

speech...... the state cannot legitimately prohibit the advocacy of illegal

action, in disobedience to its demands, at least where the relevant measures

are resisted on conscientious grounds. Although the state may properly

punish civil disobedience, when necessary for the common good, it may not

curtail the citizen’s right to speak in defence of such conduct or hear the

argument in favour of it. No state can acknowledge a right to disobey,

whenever its demands violate a citizen’s sense of justice; but equally no one

65

who accepts the responsibility that the rule of law imposes can surrender

moral judgment to the state, however benign he judges its actions in normal

circumstances or over the main areas of its jurisdiction”.

145. The exclusion orders clearly interfere with the Applicants’ right to manifest

their belief thus defined, since they are unable to hold their belief as described

above.

146. In the case of Father Basil17, the Strasburg Court condemned as a violation

of Article 9 the failure of the Georgian authorities to ensure tolerance of the

exercise by the applicants (a group of Jehovah’s Witnesses) of their right to

freedom of religion in the face a violent and outrageous attack on

worshippers and their place of worship by Father Basil (a defrocked

Orthodox priest) and a group of extremists.

147. It is submitted that the same ought to apply to the present case where the

Secretary of State has failed to ensure tolerance by ensuring that law

enforcement was available to combat the alleged threat of violence arising

from the Applicants’ holding their belief and thought as described above.

148. Accordingly, there exists an actionable breach of Article 9 of the ECHR.

Article 14 of the ECHR

149. Article 14 of the ECHR provides:

“The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex, race,

colour, language, religion, political or other opinion, national or social

origin, association with a national minority, property, birth or other

17 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v Georgia, (App.

71156/01), 3 May 2007, (2008) 46 EHRR 613.

66

status".

150. Article 14 provides for a right not to be discriminated against only in respect

of the other rights laid down in the Convention and its Protocols.

Consequently, it does not provide a general free-standing prohibition on

discrimination and does not apply unless the facts at issue fall within the

ambit of another Convention right. The application of Article 14 does not,

however, require a violation of another substantive article of the Convention.

The ECHR has frequently found violations of Article 14, read in conjunction

with another article of the Convention, without finding a violation of the latter.

(The Applicants, in any case, call for no discrimination against Muslims or

anyone else).

151. The test for determining whether there has been a violation of Article 14 is

not entirely clear. For some time, the favoured approach was the following

framework stated by Brooke LJ in Michalak v London Borough of

Wandsworth [2002] EWCA Civ 271, para 20 (as refined in later cases):

(1). Do the facts fall within the ambit of one or more of the substantive

convention provisions (for the relevant rights. see s. 1 (1) of the HRA 1998)?

(2). If so, was there different treatment in respect of that right between the

complainant on the one hand and other persons put forward for comparison

("the chosen comparators") on the other?

(3). Is the difference in treatment based on one of the grounds proscribed -

whether expressly or by inference - in Art. 14?

(4). Were the chosen comparators in an analogous situation to the complainant’

situations?

(5). If so, did the difference in treatment have an objective and reasonable

justification: in other words, did it pursue a legitimate aim and did the

differential treatment bear a reasonable relationship of proportionality to the

67

aim sought to be achieved?

152. This framework was applied and thereby approved by the House of Lords in

A v Secretary of State for the Home Department [2005] 2 A.C 68, at para 53.

153. But in R v (Carson & Reynolds) v Secretary of State for Work and Pensions

[2006] 1 AC, the House of Lords cast doubt on the above approach. Their

Lordships particularly criticised the emphasis on comparators, and the

artificial distinction between the question whether the chosen comparators

are in an analogous situation, and the question whether the difference in

treatment is justified.18 In the view of the House of Lords in Carson, if the

difference in treatment is in connection with a Convention right and on a

ground covered by Article 14, then the essential question is simply whether it

withstands scrutiny. Accordingly, it is not necessary to establish an exact

analogy. As Lord Nicholls ruled at paras 2-3:

"2.. In Wandsworth London Borough Council v Michalak [2003] 1 WLR 617,

625, para 20, Brook LJ set out four questions which a court might find it

convenient to consider sequentially when addressing a discrimination claim

under article 14 of the European Convention on Human Rights. Subsequent

judicial observations have been shown that the precise formulation of these

questions is not without difficulty. And at first instance in the Carson appeal

Stanley Burnton J suggested a fifth question should be added to the list: R

(Carson) v Secretary of State for Work and Pensions [2002] 3 All ER 994,

1009, para 51.

3. For my part, in company with all your Lordships, I prefer to keep

formulation of the relevant issues in these cases as simple and non

technical as possible.

Article 14 does not apply unless the alleged discrimination is in connection

18 Paras 3 (Lord Nicholls of Birkenhead), 30-32 (Lord Hoffman), 44 (Lord Rodger), 63-70 (Lord Walker of

Gestingthorpe), 97 (Lord Carswell).

68

with a Convention right and on a ground stated in article 14. If this

prerequisite is satisfied, the essential question for the court is whether the

alleged discrimination, that is the difference in treatment of which the

complaint is made, can withstand scrutiny. Sometimes the answer to this

question will be plain. There may be such an obvious, relevant difference

between the Claimant and those with whom he seeks to compare himself

that their situations cannot be regarded as analogous.

Sometimes, where the position is not so clear, a different approach is called

for. Then the court's scrutiny may best be directed at considering whether

the differentiation has a legitimate aim and whether the means chosen to

achieve the aim is appropriate and not disproportionate in its adverse

impact".

154. It is respectfully submitted that this approach is the correct approach to

follow in the present case and consistent with the House of Lords decision in

AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR

1434 at para 27 where the House of Lords drew attention to the danger of

assuming that two groups are not in an analogous situation just because

there are inherent differences between the two groups. As Baroness Hale

(with whom the rest of the court agreed) ruled at para 27:

"There are, also, as Lord Walker recognised in Carson, dangers in

regarding differences between two people, which are inherent in a

prohibited ground and cannot or should not be changed, as meaning that

the situations are not analogous. For example, it would be no answer to a

claim of sex discrimination to say that a man and a woman are not in an

analogous situation because one can get pregnant and the other cannot.

This is something that neither can be expected to change. If it is wrong to

discriminate between them as individuals, it is wrong to focus on the

personal characteristics which are inherent in their protected status to

argue that their situations are not analogous. That is the essential reason

why, in Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 A.C. 557, the

argument that same sex couples were not in an analogous position to

69

opposite sex couples, because they could not have children together, did not

succeed".

155. Articles 9, 10, 11, and 17 of the ECHR are engaged and do not have to be

breached for the purposes of article 14.

156. The difference in treatment is between UK critics who have heavily criticised

Islam and Islamic extremists without sanction and the Applicants as US

nationals.

157. The Applicants contend that other UK nationals such as Douglas Murray,

Melanie Phillips, Paul Weston, Baroness Cox, and Lord Pearson are able to

criticise Islam without sanction. Other critics such as Geert Wilders are able

to express their views within the UK on controversial issues, including Islam,

in what is perceived by some to be an insulting or offensive manner. The

Applicants who are US nationals are precluded from doing the same on the

basis of their nationality even though the Second Applicant has already visited

the UK. The Applicants contend that this constitutes discrimination, contrary

to article 14 of the ECHR, taken in conjunction with Articles 9, 10, 11 and 17 of

the same. The discrimination cannot withstand proper scrutiny.

158. In a speech to supporters at a Yorkshire pub, BNP chairman Nick Griffin,

referred to Islam as a “wicked, vicious faith” that “has expanded from a

handful of cranky lunatics about 1,300 years ago”.19 Muslims are regularly

attacked through views which are anti-Muslim on immigration, the Koran,

Mosques and Muslims generally. Although Mr Griffin and Mr Collette were

tried for public order offences under the Public Order Act 1986, they were

acquitted of all charges charged.20

159. The Applicants do not support Mr. Griffin or his party in any way, but note

19

See pages 163-167 of the bundle.

20 See page 169.

70

that his statements on Islam are more extreme than theirs. These statements have

not led to a successful prosecution against him.

160. More generally, the UK has allowed "the entry in recent years of several

Muslim clerics from Arab countries with a history of inflammatory

statements on terrorism”.21 The Saudi Muslim cleric Mohammed al-Arefe

was admitted into the UK in Spring 2013. He has been banned from

Switzerland. He has said: “Devotion to jihad for the sake of Allah, and the

desire to shed blood, to smash skulls, and to sever limbs for the sake of Allah

and in defense of His religion, is, undoubtedly, an honor for the believer.

Allah said that if a man fights the infidels, the infidels will be unable to

prepare to fight [the Muslims].”22 In August 2013, the UK admitted Muslim

Brotherhood leader Gomaa Amin, despite rampant Muslim Brotherhood

persecution of Coptic Christians in Egypt in the weeks preceding his

admission.23

161. The difference in treatment between the above and the Applicants is because

of the Applicants’ nationality, which amounts to discrimination on one or

more of the prohibited grounds. Nationality is a ground for discrimination

even though Article 14 uses "national ... origin" (see Gaygusuz v Austria

(1996) 23 EHHRR 364, at 41). If the Applicants had expressed the same

statements about Islam as those Muslims referred to above, the Home Office is

unlikely to have taken the decision to exclude them from the UK.

162. There is no legitimate basis for the above discrimination because the

measure is not prescribed by law (see the above analysis). If the decision was

21 See New York, Times Article February 12, 2009, Tab 9, 399.

22 Benjamin Weinthal, “Switzerland bans cleric for anti-Semitic rhetoric,” Jerusalem Post, May

28, 2013, Tab 5, 157.

23 Robert Mendick and Edward Malnick, “Muslim Brotherhood leader Gomaa Amin is in hiding in

London,” Telegraph, August 24, 2013, Tab 9, 404.

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prescribed by law, the threat would be no different from the threat posed by

the above individuals which can and is managed through law enforcement.

Hence, if there were a legitimate basis for the decision (which is denied), the

discriminatory measure is not proportionate to the aim sought to be realised

and the means used to achieve it. A much more proportionate response

would have been to invoke crowd control measures prescribed by law and/or

use law enforcement agencies to enforce the same. No such measures were

taken. The Applicants repeat the analysis on necessity and proportionality

above.

163. Consequently, the decision in question is discriminatory and contrary to

article 14 taken in conjunction with Articles 9, 10, 11 and 17 of the ECHR.

Irrationality/Wednesbury unreasonable

164. In addition, the Applicants rely on the irrationality and/or Wednesbury

unreasonable ground. For all the reasons referred to above, the decision to

exclude was irrational and/or Wednesbury unreasonable because:

(1) The decision was an abuse of power.

(2) The decision applied the wrong test and misapplied the policy.

(3) The decision was ultra vires, illegal and/or erroneous in law.

(4) The decision actionably infringes the rights of the Applicants;

(5) The Secretary of State was obliged to allow the Applicants entry in the

UK since their actions and views fell within the “Prevent” strategy

and/or gave rise to a legitimate expectation that the Applicants would be

allowed entry into the UK.

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165. The Applicants, therefore, claim the following relief:

(1). A declaration that the decision to exclude them from the UK is

unlawful and/or contrary to Articles 9, 10, 11, 14 and 17 of the ECHR as

incorporated into UK law via the Human Rights Act.

(2). A declaration that the unacceptable behaviours policy is unlawful

and/or ultra vires.

(3). A declaration that the decision to exclude is irrational (Wednesbury

unreasonable) and/or procedurally irregular.

(4). A declaration that the Secretary of State breached the Applicants

legitimate expectations vis-à-vis the “Prevent” strategy and/or Articles 9,

10, 11, 14 and 17 of the ECHR and/or s.3(1) of the Immigration Act 1971.

(5). A Quashing order depriving the decision to exclude of its effect

retrospectively on the basis that the decision is ultra vires and, therefore,

a nullity, or prospectively on the basis that the decision is intra vires but

erroneous in law.

(6). Any order that the Court thinks fit.

ARFAN KHAN

Counsel for the Applicants

4-5 Gray’s Inn Square (12/9/2013)

DR ABHIJIT PANDYA (Senior Consultant)

Christian Lavergne

Solicitors