Secretary of State for the Home Department v E & S

Whether a control order deprives a person of liberty under article 5 depends principally on physical liberty assessed in the person’s concrete situation. The court considers the type, duration, effects and manner of implementation of the restrictions, together with the setting of confinement, social contacts, restrictions outside confinement and relevant personal characteristics. The distinction between deprivation and restriction is one of degree and intensity. Article 5 does not involve balancing an established deprivation against its necessity. Twelve hours’ overnight confinement in the person’s own family home, with no daytime geographical limit and meaningful opportunities for ordinary, religious and educational activities, did not cross the threshold. A breach of the continuing duty to facilitate review of prosecution prospects requires quashing only where it materially contributes to and vitiates the decision.

The Secretary of State appealed against Beatson J’s judgment of 16 February 2007. The judge had allowed E’s appeal against renewal of a non-derogating control order made under the Prevention of Terrorism Act 2005 and had quashed the order. E was subject to overnight residence and curfew requirements, restrictions on visitors and pre-arranged meetings, and controls over communications and financial transfers. S, E’s wife, was joined to address the effect on herself and their children.

The appeal concerned whether the restrictions amounted to a deprivation of liberty under article 5, whether the Secretary of State had breached duties concerning review of prosecution prospects, and whether the order was flawed under articles 3, 6 or 8 of the Convention or for lack of procedural fairness.

Appeal allowed. Beatson J had to make his own value judgment on the article 5 issue, although his factual findings were accepted.

1. Article 5 protects physical liberty in its classic sense. The assessment begins with the person’s concrete situation and considers the type, duration, effects and manner of implementation of the restrictions. Restrictions operating outside periods of physical confinement, the character and inviolability of the home, social contacts and relevant health characteristics may also be considered. The distinction from a restriction on movement is one of degree and intensity. The approach in Engel, Guzzardi and JJ was applied. [1976] 1 EHRR 647 [1983] 3 EHRR 333 [2006] EWCA Civ 1141
2. E was detained in his own home for 12 overnight hours, but lived there with his wife and children. During the remaining hours he had no geographical restriction, could engage in religious and educational activities, and had substantial opportunities for social contact. The restrictions on visitors, searches and pre-arranged meetings did not turn the family home into prison accommodation. The case was materially distinguishable from JJ and fell on the right side of the dividing line. The reasoning in Trijonis supported that conclusion. [2005] Application No.2333/02
3. Section 8(2) of the Prevention of Terrorism Act 2005, and the implied duty recognised in MB to keep a control order under review, were not conditions precedent to making, maintaining or renewing an order, except insofar as the implied duty concerned the statutory conditions in section 2(1). The Secretary of State nevertheless had to take reasonable steps to make review of prosecution prospects meaningful, including providing the police with relevant material. The omission to provide the Belgian judgments breached that duty, but did not materially affect the decision because those judgments could not themselves constitute evidence capable of supporting a prosecution in England within the material period.
4. The proper remedy question was whether the breach materially contributed to and vitiated the decision. Not every breach requires a control order to be quashed. The approach in AF was approved. [2007] EWHC Admin 651
5. The judge’s article 8 scrutiny of the individual obligations, including consideration of less restrictive alternatives, disclosed no error. Any failure to consult E and S after the order was made did not require its quashing. The interference with the family’s article 8 rights was justified by the weight of the national security interests. Article 3 was not engaged, and the United Nations Convention on the Rights of the Child had no force of law in England and Wales.

The court added, obiter and without full argument, that it was inclined to consider that section 10(7) conferred jurisdiction to direct modification of obligations without requiring revocation and a fresh order.

• Court of Appeal (Civil Division) — In [2007] EWCA Civ 459, allowed the Secretary of State’s appeal.
• Administrative Court — Beatson J allowed E’s appeal against renewal of the control order and quashed the order. The judgment citation was not stated.