Secretary of State for the Home Department (Appellant) v. JJ and others (FC) (Respondents)

Article 5 protects physical liberty. The distinction between deprivation of liberty and restriction of movement is one of degree or intensity. A court must examine the individual’s concrete situation and assess the type, duration, effects and manner of implementation of the measures, both individually and cumulatively.

Long-term confinement to a small residence for 18 hours daily, combined with severe controls on association, communication and activity during the remaining hours, may amount to deprivation of liberty. A non-derogating control order containing such obligations lies outside the Secretary of State’s statutory power. The resulting order is a nullity and should ordinarily be quashed in its entirety.

The Secretary of State imposed non-derogating control orders under the Prevention of Terrorism Act 2005 on six men suspected of terrorism-related activity. Each was confined to a small flat for 18 hours daily. During the remaining six hours, movement, association and communication were extensively controlled. None had been charged with a terrorism offence.

Sullivan J held that the cumulative obligations deprived the respondents of their liberty contrary to article 5 of the European Convention on Human Rights and quashed the orders: [2006] EWHC 1623 (Admin). The Court of Appeal dismissed the Secretary of State’s appeal: [2006] EWCA Civ 1141, [2007] QB 446.

The issues before the House were whether the obligations amounted to deprivation of liberty and, if so, whether the orders should be quashed or their obligations modified.

1. Disposition. By a majority of three to two, the House dismissed the Secretary of State’s appeal. Lord Bingham of Cornhill, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood held that the orders deprived the respondents of their liberty. Lord Hoffmann and Lord Carswell dissented on that issue.

2. The governing approach. Per Lord Bingham, Baroness Hale and Lord Brown, article 5 of the European Convention on Human Rights protects physical liberty. The difference between deprivation and restriction is one of degree or intensity, rather than nature or substance. There is no bright dividing line. Following the principles in Engel v The Netherlands (No 1) (1976) 1 EHRR 647 and Guzzardi v Italy (1980) 3 EHRR 333, the court must examine the individual’s concrete situation. It must consider the type, duration, effects and manner of implementation of the measures and their cumulative impact.

3. Application. The 18-hour daily confinement was the starting point. It was enforced by electronic monitoring and severe criminal sanctions. The respondents lived alone, mostly in unfamiliar areas, and visitors required prior Home Office approval. Their association and activities during the six non-curfew hours were also tightly controlled. Lord Bingham considered that this produced daily solitary confinement for an indefinite duration and closely resembled detention in an open prison. Baroness Hale agreed that the respondents’ actual lives were comprehensively controlled and cut off from normal society. Lord Brown held that 18 hours was too long to preserve physical liberty, although his proposed 16-hour ceiling was not adopted as a rule by the other members of the majority.

4. Appellate review. Lord Bingham held that classification under article 5 involved an evaluative judgment on the concrete facts. Sullivan J had applied the correct legal principles, and no error of law was demonstrated. The House therefore had no basis for substituting a fresh evaluation, although the majority also agreed with his conclusion.

5. Remedy. Per Lord Bingham, with Baroness Hale and Lord Brown agreeing, section 1(2) of the Prevention of Terrorism Act 2005 withheld from the Secretary of State power to make an order containing any obligation incompatible with article 5. Each order was therefore made without power and was a nullity. Modification of individual obligations could not validate the order that had been unlawfully made. No special circumstances justified withholding relief, so the orders were quashed in their entirety.

6. Dissent. Lord Hoffmann and Lord Carswell would have confined deprivation of liberty to actual imprisonment or confinement practically equivalent to it. They regarded the respondents’ freedom outside their homes as sufficient to keep the orders below that threshold. Lord Hoffmann would also have remitted the matter for consideration of modification under section 3(12). Lord Carswell agreed with the majority that an order should be quashed if its overall regime was found comparable to imprisonment.

The appeal was dismissed with costs.

1. House of Lords: By a majority of three to two, dismissed the Secretary of State’s appeal, affirmed the decisions below and upheld the quashing of the control orders: [2007] UKHL 45.
2. Court of Appeal: Dismissed the Secretary of State’s appeal. It agreed that the cumulative obligations deprived the respondents of liberty and that the orders should be quashed: [2006] EWCA Civ 1141, [2007] QB 446.
3. Administrative Court: Sullivan J held that the control orders deprived the respondents of liberty contrary to article 5 and quashed them: [2006] EWHC 1623 (Admin).