Terrorism – Control orders – Right to liberty and security

Secretary of State for the Home Department (respondent) v AP ­(appellant): SC (Lord Phillips, Lord Saville, Lord Rodger, Lord Walker, Lord Brown, Lord Clarke, Sir John Dyson): 16 June 2010

The appellant (P) appealed against a decision ((2009) EWCA Civ 731) that the control order to which he had been made subject did not amount to a deprivation of liberty under article 5 of the European Convention on Human Rights 1950.

P had been the subject of a control order imposed under the Prevention of Terrorism Act 2005. The conditions of the order included a 16-hour curfew, electronic tagging and restrictions on association. P was required to live at an address in London, where his family, friends and associates were based. The order was subsequently modified to require him to live in a town in the Midlands. His family encountered practical difficulties visiting him there, and his mother was unable to do so. He did not know anybody and was socially isolated. He appealed successfully against the modification.

The judge found that the interference with P’s rights under article 8 was justified and proportionate, but the overall effect of the curfew and P’s social isolation constituted an article 5 deprivation of liberty. The Court of Appeal held that the judge had been wrong to treat the article 8 factors as determinative of the article 5 issue.

The issues were (i) whether conditions which were proportionate restrictions upon article 8 rights could tip the balance in relation to article 5; (ii) whether the judge could take into account subjective or person-specific factors, such as the particular difficulties of the person’s family in visiting him, when considering whether a control order amounted to a deprivation of liberty.

The secretary of state argued that, in assessing the weight to be given to the restrictive effects of a condition such as the one in the present case that required P to reside in the Midlands, the judge should ignore everything that depended on the individual circumstances of the subject's family.

Held: (1) If an article 8 restriction was a relevant consideration in determining whether a control order breached article 5, then by definition it was capable of being a decisive factor, and capable of tipping the balance. However, the weight to be given to a relevant consideration was always a question of fact and was entirely a matter for the decision-maker, subject only to a challenge for irrationality. In control order cases with curfews of between 14 and 18 hours, other restrictions than mere ­confinement could tip the balance in deciding whether the restrictions overall deprived the controlee of his liberty, Guzzardi v Italy (A/39) (1981) 3 EHRR 333 ECHR and Secretary of State for the Home Department v JJ (2007) UKHL 45, (2008) 1 AC 385 applied. However, for a control order with a curfew of 16 hours or less to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive of the life that the controlee might otherwise have been living.

(2) It was relevant that, while P was required to live in the Midlands, his family lived in London. Therefore, it was also relevant whether the family’s circumstances were such that the ­distance involved so disrupted contact between them and P as to cause or substantially contribute to P’s social isolation. The judge must disregard not the particular difficulties of the subject’s family in visiting him, but rather any lack of contact resulting from the family's unreasonable failure to overcome those difficulties. There was no suggestion that P’s family had behaved unreasonably in failing to overcome the difficulties they had in visiting him on a more ­regular basis.

(3) Carnwath LJ below had been right in his analysis of the House of Lords judgments in JJ and as to how they applied to the present case. He had also been right to emphasise the importance of respecting the decisions of the judges in the Administrative Court dealing with those difficult cases. They had developed special expertise and experience in the area, and there was wisdom in generally not interfering with their decisions in control order cases.

(4) (Per Sir John Dyson SCJ) The authorities did not provide support for the secretary of state’s argument about the requirement for an objective approach to the impact of the restrictions on the individual, Shtukaturov v Russia (44009/05) (2008) 11 CCL Rep 440 ECHR considered. Prima facie, the actual isolating effect resulting from choices made by the controlee, his family and his friends in response to the measures should be taken into account. However, isolation attributable to unreasonable conduct on the part of the controlee or his family or friends should be disregarded.

Appeal allowed.

Edward Fitzgerald QC, Kate Markus (instructed by Wilson LLP) for the appellant; Robin Tam QC, Tim Eicke, Rory Dunlop (instructed by the Treasury Solicitor) for the respondent.