Conditions – Control orders – Freedom of thought, conscience and religion – Deprivation of liberty

Secretary of State for the Home Department v AP: QBD (Admin) (Mr Justice Keith): 12 August 2008 The court was required to determine whether a decision of the secretary of state to make a control order imposing certain obligations on the respondent (P) was flawed.

P appealed against the refusal of the secretary of state to vary some of the obligations in the control order and against her subsequent modification of the obligations without P’s consent. The secretary of state had suspected that P had been involved in terrorism-related activities. She had based her suspicion on three core features of P’s activities, including his attendance at a camp that had been assessed to be a terrorist training camp, his visit to Somalia, allegedly to undergo paramilitary or terrorist training, and his connection with people associated with Islamist extremism. The secretary of state made a control order against P, which purported to be a non-derogating one. A number of obligations and restrictions were imposed on him. In particular, P was subject to a curfew, was not allowed to leave a specified area, was not allowed to attend any pre-arranged meetings or gatherings outside his home, was subject to certain exceptions, and was restricted to visiting one mosque and required to obtain approval for the one he wished to attend. The secretary of state refused a request to vary the two obligations relating to the visit to the mosque and pre-arranged meetings or gatherings. P was also notified that he would be relocated to another area, and his control order was modified to reflect that change. The issues were: (i) whether the secretary of state had reasonable grounds for suspecting that P had been involved in terrorism-related activity; (ii) whether it was necessary for purposes connected with protecting members of the public from a risk of terrorism to make a control order; (iii) whether the obligations in question were necessary for purposes connected with preventing or restricting P’s suspected involvement in terrorism-related activity; (iv) whether the obligations amounted to a breach of P’s rights under the European Convention on Human Rights.

Held: (1) As a result of the failure of the secretary of state to disclose to P, as required by the court, a summary of particular aspects of closed material on which she had relied, the court would not take that evidence into account. However, the facts relied upon by the secretary of state in the open materials, putting aside any assessments in the materials for which no explanations had been given, amounted to reasonable grounds for suspecting that P had been involved in terrorism-related activity, as defined in section 1(1) to 1(4) the Terrorism Act 2000 and section 1(9) of the 2005 act. (2) The secretary of state was better placed than the court to decide the measures that were necessary to protect the public against the activities of someone suspected of terrorism-related activity. Accordingly, a degree of due deference had to be accorded to her assessment of the risk posed by P. In the circumstances, it was necessary in order to protect the public from a risk of terrorism for P to be the subject of a control order.

(3) P had links with many people who were involved, or had links with those involved, in terrorism-related activity; the need to monitor who P met outside his home arose from that important consideration. To ensure that he did not meet anyone who might be unsuitable, it was necessary to require him to obtain approval to meet anyone by arrangement. In respect of the mosque restriction, mosques could be a meeting place for people with extremist views and for recruiting people to extremist causes and, therefore, it was appropriate for the secretary of state to know which particular mosque P intended to attend. Those conditions could not be said to be disproportionate to the need to prevent or restrict P’s involvement in terrorism-related activity. As regards the relocation, the justification for it was that it would be more difficult for P to see his associates who were or might be Islamist extremists. Relocation was the most effective way of achieving that. Giving due deference to the view of the secretary of state and having regard to the hardship P would suffer, in particular being isolated from his family members as a result of the relocation, the move was not a disproportionate response to the need to prevent or restrict P’s involvement in terrorism-related activity.

(4) It was the combination of the equivalent of house arrest up to the maximum period of 16 hours, and the equivalent of internal exile which made P so socially isolated during the relatively few hours in the day when he was not under house arrest, coupled with his inability to make social arrangements because pre-arranged meetings were prohibited, that led to the conclusion that the obligations imposed on him fell on the side of the line that involved the deprivation of liberty under article 5 of the convention, rather than the restriction of movement, Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385 and AH v Secretary of State for the Home Department [2008] EWHC 1018 (Admin) applied. If P had not been relocated the conclusion would have been different.

Judgment accordingly.

Robin Tam QC, Steven Kovats (instructed by Treasury Solicitor) for the applicant; Andrew Nicol QC, Duran Seddon (instructed by Wilson & Co) for the respondent; Neil Garnham QC, Martin Chamberlain (instructed by Special Advocates Support Office) for Special Advocate on behalf of the respondent.