| HUMAN RIGHTS — Right to liberty — Suspected terrorists — Secretary of State issuing non-derogating control order — Whether obligations imposed amounting to deprivation of liberty — Human Rights Act 1998, Sch 1, Pt 1, art 5 — Prevention of Terrorism Act 2005, s 2
Secretary of State for the Home Department v AF
QBD: Ouseley J: 30 March 2007
A control order made by the Secretary of State imposing restrictions which amounted cumulatively to a deprivation of liberty was a nullity.
Ouseley J so held in the Queen’s Bench Division when quashing a non-derogating control order made by the Secretary of State pursuant to s 2 of the Prevention of Terrorism Act 2005 on 11 September 2006 and varied on 18 October 2006 against the respondent, AF.
OUSELEY J said that on a hearing under s 3(10) of the 2005 Act the court’s powers were to determine, by the application of the principles of judicial review, whether the decisions of the Secretary of State that he had reasonable grounds for suspecting that AF was involved in terrorist-related activity and that a control order with the restrictions and obligations which it imposed were necessary, were flawed. The Secretary of State alleged that AF had links with Islamist extremists in Manchester, some of whom were affiliated to the Libyan Islamic Fighting Group, a proscribed organisation under Schedule 2 to the Terrorism Act 2000. The order was imposed on AF on 11 September 2006 in place of a previous order which had been revoked following the decision of the Court of Appeal in Secretary of State for the Home Department v JJ [2006] 3 WLR 866. The order included restrictions as to tagging, residence, curfew between 6 pm and 8 am, reporting, unscheduled entry and search of the residence by police, restriction to a defined area, prior identification and approval of visitors during the hours of curfew, prohibition of contact with named individuals, and further restrictions as to place of worship, communications, travel and travel documentation, banking and financial and employment matters. One of the issues which arose for determination was whether the order constituted a deprivation of liberty within art 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms and so was ultra vires the 2005 Act. The principles had been considered recently by Sullivan J in JJ [2006] EWHC Admin 1632, approved by the Court of Appeal [2006] 3 WLR 866, and by Beatson J in Secretary of State for the Home Department v E [2007] EWHC Admin 233. “Deprivation of liberty” within art 5 had its own meaning. The cumulative effect of the various restrictions must be examined. The court had to start with “the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question”, per Keene LJ in Secretary of State for the Home Department v Mental Health Review Tribunal [2002] EWCA Civ 1868. Although it was necessary to examine each case on its particular facts, some consistency of approach was necessary as to what, on cases less clear and more finely balanced than JJ, constituted a deprivation of liberty. If the curfew were by itself the only significant restriction there would be support for the contention that there was a restriction on movement short of a deprivation of liberty. But further restrictions, especially on the presence of guests without prior approval, made it a more finely balanced case as to whether those restrictions in combination amounted to a deprivation of liberty. Once the daily period of curfew reached let alone exceeded 12 hours, the scope for further restrictions on what could be done during those hours of curfew without depriving someone of their liberty was very substantially reduced. The real restriction outside curfew hours lay in the extent of the permitted area and that fact that it had been delineated so that it cut AF off from the area to which he used to gravitate. The question of whether the order amounted to a deprivation of liberty could not be answered solely by looking at what had been prevented or curtailed, or by what was left or could be re-arranged with some loss or inconvenience. The concrete question required an examination of what he could or could not do and with what accompanying enforcement measures. The assessment of whether, objectively, those restrictions amounted to a deprivation of liberty or not did not depend on the individual’s subjective reaction to their effect on his liberty or movement. The assessment could not be made without some regard to the age and background of the individual. The effect of the geographical area to which AF was restricted on his social contact opportunities was relevant to answering the concrete question. Taken by themselves, any one of the restrictions which flowed from the way the area had been delineated would not amount to a deprivation of liberty. But together they cut him off to a large extent from his previous life. Particular significance was attributed to the cumulative restrictions on mosques and educational establishments or employment opportunities in judging whether there was a deprivation of his liberty, and they had to be seen as additional to those which bit during curfew. Although the decision was quite finely balanced, this was a case in which the restrictions cumulatively amounted to a deprivation of liberty. The probability that at least some of the restrictions would be renewed for a number of years could not be ignored. The control order was a nullity and could not be saved by variations to the restrictions selected by the court.
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