Court Grants Leave to Challenge Terrorism Travel Notification Requirements

The Divisional Court, sitting in Belfast, Friday 8th December, granted leave to challenge the Counter-Terrorism Foreign Travel Notifications. Anthony John McDonnell (“the applicant”) is an Irish citizen resident in Northern Ireland.  On 4 December 2013, he was convicted of five counts of the possession of car registration numbers of police officers, contrary to s.58(1)(b) of the Terrorism Act 2000.  A determinate custodial sentence (DCS) of three years and six months was imposed, of which one year and nine months was to be served in custody, and one year and nine months on licence, subject to conditions imposed on his release. By virtue of that conviction, the applicant became subject to notification requirements pursuant to Part 4 of the 2008 Act and regulations 3 and 4 of the Counter Terrorism Act (Foreign Travel Notification Requirements) Regulations (2009).  He is subject to such requirements until 2023.

The notification requirements are an automatic requirement for persons aged 16 or over when they are convicted of certain terrorism offences or offences with terrorist connection, and are given a ‘relevant’ sentence.  The requirements are not dependent on an order of the Court, and neither the Court nor the police have a discretion imposing them.

The applicant submitted that there must not be a blanket approach to a individual, but rather that there must be a case by case assessment in which all relevant circumstances must be considered, and that the threat must be genuine, real and current.  It was also argued that there should have been a reassessment during the statutory period of the restrictions, in the case of this applicant, during a period of 10 years.  During custody, the restrictions did not apply, and during the applicant’s licence period the restrictions imposed by his licence conditions ran in parallel with the notification restrictions, in that not only was he required to comply with those restrictions, he required the permission of the probation officer to leave the jurisdiction – and he would have had to give details of any trip, and his return.  The applicant argued, however, that the restrictions are a continuing breach of his freedom of movement, and that if the provisions are unlawful then the lapse of time cannot vest the provisions with legitimacy.

The Divisional Court said it was satisfied that leave should be granted against the Home Secretary on the ground that the requirement for notification is unlawful without any assessment or reassessment of any offender as representing a genuine and real current risk.