Abu Rideh v Secretary of State for the Home Department

On an appeal against modification of a non-derogating control order, the court must apply judicial-review principles to the Secretary of State’s decision that the modification is necessary. A modification which transforms an order compatible with Article 5 into one incompatible with it is necessarily flawed.

For Article 5, the central question is the degree of physical restraint on personal liberty. Restrictions on the home, outside activities, visitors and reporting requirements may be relevant, but do not necessarily amount to deprivation of liberty. Mental illness may affect the severity of restrictions, although it did not do so on the facts here. Modifications directed to improved monitoring and the risk of absconding were proportionate.

Mr Mahmoud Abu Rideh appealed under section 10(1) of the Prevention of Terrorism Act 2005 against modifications to his control order. The modifications followed alleged breaches of residence and reporting obligations and increased concerns about absconding after his family’s impending departure.

He argued that the cumulative effect of the modified obligations, in light of his mental health and changed personal circumstances, breached Articles 3, 5 and 8 of the ECHR. The Article 6 ground was not pursued. The central issues were whether the Secretary of State’s decision was flawed, whether the order deprived him of liberty, and whether the modified obligations were proportionate.

1. The appeal was dismissed. Under section 10(5) and (6) of the Prevention of Terrorism Act 2005, the court had to determine, applying judicial-review principles, whether the Secretary of State’s decision that the modifications were necessary for terrorism-prevention purposes was flawed.

2. The appellant’s sustained breaches of the residence and exit-and-entry call requirements materially degraded monitoring. His changed circumstances, including the impending departure of his family and possible prosecution, entitled the Secretary of State to assess that the risk of absconding had increased. The Secretary of State could take account of lessons from other absconding cases, provided the primary focus remained the appellant’s own circumstances and conduct.

3. Applying the approach in Secretary of State for the Home Department v E [2007] EWCA Civ 459, the central Article 5 issue was physical restraint. The twelve-hour curfew, reporting requirements, restrictions on visitors and meetings, and absence of family support did not cumulatively amount to deprivation of liberty. Mental state could affect the severity of restrictions, but the evidence did not establish that the appellant’s mental condition crossed the Article 5 threshold.

4. The evidence established some deterioration in mental health but not a real and serious risk of suicide. The modified obligations therefore did not reach the Article 3 threshold. They were also proportionate under Article 8 because they responded to degraded monitoring and the increased risk of absconding.

5. The court exercising supervisory jurisdiction was not required to devise alternative obligations. The Secretary of State had invited representations and indicated willingness to consider changes to reporting times. Alleged deficiencies in warnings or dialogue did not, without more, make the substantive decision flawed.

This was an appeal under section 10(1) of the Prevention of Terrorism Act 2005 against modifications made by the Secretary of State. The judgment does not state a prior appellate decision in this appeal.