Secretary of State for the Home Department v AF (Rev 1)

A control order is unlawful if its cumulative restrictions amount objectively to a deprivation of liberty under Article 5 ECHR. The assessment depends on the concrete situation, including the type, duration, effects and implementation of the restrictions, viewed cumulatively. The individual’s subjective reaction is not decisive, although age, background and opportunities for social contact may be relevant.

On a review hearing under the Prevention of Terrorism Act 2005, the court determines reasonable suspicion and necessity on all material available at the hearing. A failure by the police to consult the CPS is a statutory breach and may render the Secretary of State’s decision flawed, but quashing is not automatic where the omission could have had no consequence. A Minister of State may make a control order unless personal decision-making by the Secretary of State is expressly or necessarily required.

The Secretary of State made a non-derogating control order against AF under the Prevention of Terrorism Act 2005. AF was confined to his home for fourteen hours daily, subject to tagging, searches, communications restrictions and a geographically limited area. The order also restricted his access to mosques, education, employment opportunities and visitors during curfew hours.

AF challenged the order under the statutory review procedure. The issues included deprivation of liberty, legal certainty, ministerial authority, consultation with the police and CPS, the evidential basis for suspicion and necessity, procedural fairness, and the individual restrictions. The central question was whether the order was lawful and, in particular, whether its cumulative effect amounted to a deprivation of liberty.

1. Deprivation of liberty. The court adopted the approach in SSHD v E and JJ and Others v SSHD. The distinction between deprivation of liberty and restriction of movement is one of degree or intensity. The court must examine the concrete situation, considering the type, duration, effects and manner of implementation of the measures, and their cumulative effect.
2. AF remained in his own home with his father and could meet most people outside curfew hours. Nevertheless, the fourteen-hour curfew, tagging, random searches and restrictions during curfew were significant. The geographical boundary also cut him off from his previous social and religious life, preferred mosques, English-language education, employment opportunities and preferred medical care. The cumulative effect was comparable in severity to the order considered in SSHD v E, although less severe than the orders in JJ and Others. The order therefore amounted to a deprivation of liberty.
3. The order was consequently a nullity. The necessity of the restrictions could not cure an order which was unlawful as a deprivation of liberty. A deprivation of liberty could not be imposed under the Act without a derogation from Article 5, which had not been sought.
4. Other issues. The statutory language governing involvement in terrorism-related activity and necessity was sufficiently legally certain. The order could lawfully be made by a Minister of State: the Act contained no express or necessary implication requiring personal decision by the Home Secretary.
5. The police had breached their statutory duty by failing to consult the CPS. That consultation was not a precondition to the order’s validity. The omission could, however, make the Secretary of State’s decision flawed because the possibility of prosecution was a material consideration. On the evidence, the CPS would inevitably have reached the same conclusion as the police, so the court declined to quash the order on that ground.
6. The court had to determine reasonable suspicion and necessity on all material before it at the hearing, applying the judicial-review principles modified by the statutory merits function. Reasonable suspicion required facts or information capable of satisfying an objective observer that AF might have undertaken conduct within the statutory definition. The closed evidence established reasonable grounds and the necessity of a control order, but those conclusions could not save the order from its Article 5 defect.
7. The closed-material procedure was not shown to be incompatible with Article 6. The Court of Appeal’s decision in SSHD v MB was binding, and the special advocate procedure provided a substantial and sufficient measure of procedural protection in the circumstances.
8. The control order was quashed as a nullity, without prejudice to the making of a further lawful order.

First-instance judicial review and statutory review proceedings. No earlier appellate decision concerning this order is stated in the judgment.