JJ and Others v Secretary of State for the Home Department

The House considered whether the obligations imposed by non-derogating control orders under the Prevention of Terrorism Act 2005 amounted to a deprivation of liberty in breach of Article 5 of the European Convention on Human Rights. The majority concluded that the particular orders under review, which included an 18-hour daily curfew, electronic tagging, tight restrictions on visitors, searches and severe constraints on communications and association, cumulatively deprived the controlled persons of their physical liberty. The court applied the autonomous Convention test (looking to Strasbourg authority such as Engel and Guzzardi) and considered the concrete situation of the individuals by reference to the type, duration, effects and manner of implementation of the measures.

Because the Secretary of State had no power under the 2005 Act to impose obligations incompatible with Article 5, the House held that the orders were nullities and must be quashed rather than merely modified; the court therefore dismissed the Secretary of State's appeal. The court also addressed the limited statutory powers under section 3(12) of the Act to quash or modify obligations but, on the facts, found quashing to be the appropriate remedy. (Key statutory provisions considered included sections 1, 2, 3, 4, 5, 7, 9 and 15 of the Prevention of Terrorism Act 2005 and section 6(1) of the Human Rights Act 1998.)

Background and parties. Six individuals (five Iraqi nationals and one of Iraqi or Iranian nationality) were made the subject of non-derogating control orders under the Prevention of Terrorism Act 2005. All were suspected of involvement in terrorism-related activity but none had been charged with terrorism offences. The Home Secretary had imposed broadly standardised obligations (curfew, electronic monitoring, restrictions on association and communications, constrained residence and authorised searches). The applicants challenged the orders as amounting to deprivation of liberty contrary to Article 5(1) ECHR.

Procedural history. At first instance Sullivan J quashed the orders as incompatible with Article 5 ([2006] EWHC 1623 (Admin)). The Court of Appeal dismissed the Secretary of State's appeal ([2006] EWCA Civ 1141; [2007] QB 446). The Secretary of State appealed to the House of Lords.

Nature of the claim and relief sought. The controlled persons sought declarations and quashing of the control orders on the ground that their cumulative effect deprived them of liberty under Article 5(1) ECHR. The Secretary of State sought to defend the orders and, alternatively, argued that if any incompatibility were found the courts should modify particular obligations or remit to the Secretary of State to do so rather than quash entire orders.

Issues framed. (i) Whether the combined obligations constituted a deprivation of liberty under Article 5(1); (ii) if so, whether the appropriate remedy was to quash the whole orders or to quash or direct modification of particular obligations under section 3(12) of the 2005 Act; (iii) related issues on procedural protections (considered in other appeals joined on similar points).

Reasoning and conclusion. The majority examined Strasbourg jurisprudence (notably Engel and Guzzardi) and stressed that Article 5 protects physical liberty as an autonomous Convention concept. The court applied a fact-sensitive assessment: the "concrete situation" of each controlled person and the cumulative impact of the measures (type, duration, effects and manner of implementation). On the agreed facts — in particular the 18-hour daily curfew, effective solitary confinement for long periods, exclusion from previous communities, close regulation of visitors and communications and the risk of spot searches and arrest — the majority concluded the restrictions amounted to deprivation of liberty. Because the Secretary of State had no power to impose Article 5-incompatible obligations, the orders were void and had to be quashed; partial amendment was not available to validate what was, in law, an order made without power. A minority judgment would have held that the measures did not amount to deprivation of liberty and that the court could use section 3(12) to direct modification rather than quash the whole orders.

Wider implications. The House emphasised the careful line between Article 5 protection of physical liberty and other qualified Convention rights (movement, association, expression) and the need to apply Strasbourg principles on a case-by-case basis.

Appeal dismissed. The majority held that on the agreed facts the cumulative effect of the control orders (notably an 18-hour daily curfew together with electronic tagging, severe restrictions on association and communication, isolation in one‑bed flats and the incidence of searches and penalties) deprived the respondents of their physical liberty contrary to Article 5(1) ECHR. Because the Secretary of State had no statutory power to impose Article 5‑incompatible obligations, the orders were nullities and had to be quashed rather than merely modified.

Sullivan J (Administrative Court) quashed the control orders: [2006] EWHC 1623 (Admin). The Court of Appeal dismissed the Secretary of State's appeal: [2006] EWCA Civ 1141; [2007] QB 446. The Secretary of State's appeal to the House of Lords was dismissed: [2007] UKHL 45.