Secretary of State for the Home Department v E

A non-derogating control order may impose substantial restrictions without necessarily depriving a person of liberty. The court must assess the individual’s concrete situation, the type, duration, effects and implementation of the restrictions, and their cumulative intensity. A 12-hour curfew may nevertheless amount to deprivation of liberty when combined with extensive controls over visitors, meetings, communications and searches.

The Secretary of State has a continuing duty to review both the necessity of the order and the prospect of prosecution. Significant new material must be considered expressly. Judicial review involves deference on national-security assessments, but intense scrutiny of particularly onerous obligations and possible less restrictive alternatives.

E had previously been detained under the Anti-Terrorism, Crime and Security Act 2001. In March 2005 the Secretary of State made a non-derogating control order under the Prevention of Terrorism Act 2005. It imposed a 12-hour curfew, residence, tagging, prior approval of visitors and meetings, restrictions on communications equipment and financial transfers, and powers of search.

E challenged the order and its renewal on Convention and public-law grounds. His wife and children were joined in relation to alleged interference with their rights. The central issues were whether the order lacked legal certainty, deprived E of liberty under Article 5, and whether the Secretary of State’s decisions were flawed, including through inadequate consideration of prosecution, proportionality and procedural fairness.

1. Article 5. The court, not the executive, determines whether restrictions constitute deprivation of liberty. The assessment begins with the person’s concrete or actual situation and considers the type, duration, effects and manner of implementation of the restrictions. The court must then assess their cumulative effect and intensity. The 12-hour curfew, viewed alone, was a major restriction but not necessarily a deprivation of liberty. In combination with prior approval for all visitors and pre-arranged meetings, unrestricted search powers and restrictions on communications, it gave E’s home characteristics of prison accommodation and crossed the Article 5 boundary. The order therefore deprived E of liberty.
2. Legal certainty. The statutory scheme was sufficiently accessible, detailed and specific. The width of the powers did not itself make them unforeseeable. The obligations were limited by the statutory purposes of preventing or restricting terrorism-related activity and were subject to judicial review, proportionality and intense scrutiny.
3. Prosecution and review. The consultation before the order was made satisfied Prevention of Terrorism Act 2005, section 8(2), which was not a condition precedent to the power under section 2(1). However, the Secretary of State had a continuing duty to keep prosecution under review. The Belgian judgments were significant new material, including material potentially relevant to admissible evidence and public-interest considerations. Their impact on prosecution prospects had not been reviewed. The continuing decision to maintain the order was therefore flawed.
4. Proportionality and fairness. The national-security assessment was entitled to institutional deference, but each onerous obligation required intense scrutiny and consideration of less restrictive alternatives. The evidence did not establish that the individual obligations were flawed on proportionality grounds. The court expressed doubts about the procedure for inviting representations on renewal, but did not need finally to determine that issue.
5. Disposition. The control order was quashed because it deprived E of liberty and, independently, because the prosecution prospects had not been properly reviewed. The quashing order was stayed for seven days to allow an appeal.

The judgment records earlier proceedings concerning control orders in MB and JJ and others, including decisions of the Administrative Court and Court of Appeal. Those decisions were not stages in E’s own litigation.