Secretary of State for the Home Department v JJ & Ors

Whether restrictions amount to a deprivation of liberty under Article 5 depends on the individual’s concrete situation. The court must assess the cumulative effect of the type, duration, effects and implementation of the restrictions. The purpose of the measures is relevant, but public-protection purposes do not reduce the protection afforded by Article 5. Severe, prolonged control orders requiring an 18-hour daily curfew, compulsory residence, intrusive searches, restricted visitors and communications, and limits on movement and association may amount to deprivation of liberty even though the individual is permitted to leave the residence for part of each day. If such orders are made as non-derogating orders, they are made without jurisdiction and must be quashed.

The Secretary of State made substantially identical non-derogating control orders under section 2(1) of the Prevention of Terrorism Act 2005 against six respondents. The orders required compulsory residence, an 18-hour daily curfew, electronic tagging, reporting, intrusive searches, restrictions on visitors and meetings, limits on communications, mosque attendance and geographical movement, and other controls.

The court determined, as a preliminary issue, whether the cumulative effect of those obligations deprived the respondents of their liberty contrary to Article 5(1) of the Convention. The issue had not been decided in the earlier Secretary of State for the Home Department v MB proceedings.

1. Article 5 test. The court applied the approach in Guzzardi v Italy: the distinction between restriction and deprivation is one of degree or intensity, and the court must examine the concrete situation, considering the type, duration, effects and manner of implementation of the measures cumulatively. Strasbourg decisions are fact-sensitive, so the outcome in one case cannot simply be transposed to another.
2. Purpose and duration. Purpose is relevant. Restrictions imposed principally in the individual’s interests may point away from deprivation of liberty. By contrast, measures imposed solely to protect the public from terrorism point in the opposite direction. The statutory possibility of repeated renewal meant that the practical duration was potentially indefinite, rather than limited to a single 12-month order.
3. Application. The 18-hour curfew, compulsory residence in accommodation generally unfamiliar to the respondents, random searches, controlled visitors, restrictions on meetings and communications, geographical limits, and strict enforcement prevented them from leading anything resembling a normal life. Their concrete situation was closer to detention in an open prison than to a mere restriction on movement. The same conclusion applied to GG, although he remained in his former home.
4. Judicial determination. It was for the court, not the Secretary of State, to decide whether the obligations were incompatible with Article 5. No deference was owed to the Secretary of State’s classification of the orders as non-derogating.
5. Remedy. The obligations were derogating obligations. The Secretary of State therefore had no power to make the orders under section 2. The orders were nullities and the proper remedy under section 3(12)(a) was to quash each order, rather than direct modification or revocation. The quashing order was stayed for seven days to permit an application to the Court of Appeal.

High Court (Administrative Court): the court determined the Article 5 preliminary issue in favour of the respondents and quashed the six control orders. A seven-day stay was granted to permit an application to the Court of Appeal.