Secretary of State for the Home Department v JJ & Ors

Whether a measure deprives a person of liberty for Article 5 purposes is assessed by reference to the person’s concrete situation and the cumulative type, duration, effects and manner of implementation of the restrictions. Physical confinement is the necessary starting point, but restrictions on movement, social contact, communications and religious practice may be relevant to the overall assessment.

An 18-hour daily confinement to a small flat, coupled with stringent restrictions during the remaining hours, can plainly amount to a deprivation of liberty rather than a restriction on freedom of movement. A non-derogating control order which has that effect is ultra vires and may be quashed. The court should not itself devise a replacement package of obligations where that is an executive task.

The Secretary of State appealed against Sullivan J’s decision in the Administrative Court, [2006] EWHC 1623 (Admin), quashing six purported non-derogating control orders made under the Prevention of Terrorism Act 2005.

The respondents were each required to remain in a specified small flat for 18 hours daily. During the other six hours, they were confined to designated urban areas and subject to restrictions on visitors and pre-arranged meetings. Sullivan J held that the cumulative obligations deprived them of liberty contrary to Article 5 and that the Secretary of State lacked power to make the orders.

The appeal raised whether the orders amounted to a deprivation of liberty and, if so, whether the proper remedy was to quash the orders or instead modify individual obligations.

1. Appeals dismissed. The control orders deprived the respondents of physical liberty contrary to Article 5 of the European Convention on Human Rights. They were therefore outside the Secretary of State’s power to make non-derogating control orders under the Prevention of Terrorism Act 2005.
2. The governing approach was that in Guzzardi v Italy (1980) 3 EHRR 333. The court must begin with the individual’s concrete situation and assess cumulatively the type, duration, effects and manner of implementation of the restrictions. The 18-hour daily confinement in small flats made a grave physical inroad on liberty. The constraints during the remaining six hours, including restricted geographical areas, controlled social contact and restrictions affecting communications and religious observance, were relevant contextual features. The Convention rights engaged by those features were not to be treated as watertight compartments. On the facts, this was clearly deprivation of liberty, not a borderline restriction on movement.
3. The court had jurisdiction to quash the ultra vires orders whether or not sections 3(10) and 3(12) supplied the applicable remedial mechanism. It was neither appropriate nor practical for the court to preserve the orders by removing or rewriting individual obligations. If replacement controls were thought necessary, the Secretary of State, who was better placed to formulate a lawful package, could consider making new orders under the statutory power.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeals and upheld the quashing of the six control orders.
• High Court, Administrative Court: Sullivan J held that the orders deprived the respondents of liberty contrary to Article 5 and quashed them: [2006] EWHC 1623 (Admin) .