Saber v Secretary of State for the Home Department

The House of Lords dismissed the appellant's challenge to a non-derogating control order made under the Prevention of Terrorism Act 2005. On the Article 5 issue the court applied Strasbourg authority and emphasised the "core element" of confinement: the 12-hour overnight curfew, combined with other restrictions, did not amount to a deprivation of liberty on the special facts of this case. On the statutory issue the court held that the Secretary of State's duty under section 8 of the 2005 Act to consult the police about realistic prospects of prosecution is mandatory and must be taken seriously but is not a condition precedent to making a control order under section 2(1). The Secretary of State must keep the prospects of prosecution under review and share relevant material with the police, but on the material before the House any omission did not mean that the order should have been quashed.

This appeal concerned E, subject to a non-derogating control order under the Prevention of Terrorism Act 2005. He challenged the order on two grounds: that it effected a deprivation of liberty contrary to article 5 of the European Convention on Human Rights, and that the Secretary of State breached statutory duties concerning consideration and review of possible criminal prosecution (section 8 of the 2005 Act).

Background and procedural history:

• E had previously been certified under the Anti-terrorism, Crime and Security Act 2001 (detained until 2005) and was subject to a control order made on 12 March 2005; Beatson J at first instance quashed the order ([2007] EWHC 233 (Admin)).
• The Court of Appeal allowed the Secretary of State's appeal and set aside Beatson J's order ([2007] EWCA Civ 459).
• E appealed to the House of Lords.

Nature of the relief sought: E sought quashing of the control order on human rights grounds (Article 5) and on statutory grounds relating to alleged failures to consult and to keep prosecution prospects under review under section 8 of the Prevention of Terrorism Act 2005.

Issues framed by the court:

• whether the cumulative obligations in the control order (including a 12-hour nightly curfew, electronic tagging, reporting requirements, restrictions on visitors and communications, and powers of search) amounted to a deprivation of liberty under article 5;
• whether the Secretary of State had complied with section 8(2) (consultation before making the order) and with the continuing duty to ensure the prospects of prosecution were kept under review and relevant material shared with the police.

Concise account of reasoning:

• On Article 5 the Lords applied Strasbourg jurisprudence and emphasised that the "core element" is confinement. A 12-hour overnight curfew, on the facts (residence in family home, access to garden, visitors under ten exempted, freedom outside curfew hours, mosque attendance permitted), fell within the range of restrictions held by Strasbourg to be restrictions short of deprivation of liberty. Distinctions with the more stringent restrictions in the JJ cases made the control order here distinguishable and not an Article 5 breach.
• On section 8 the court held that consultation with the police is mandatory but not a statutory condition precedent to making a control order under section 2(1). The Secretary of State must, however, ensure the continuing review is meaningful and share material which might affect prospects of prosecution. Although the Secretary of State had failed to supply Belgian judgments promptly to the police, on the material before the House the failure would not have produced a realistic prospect of prosecution in time to have changed the decision; accordingly the order should not have been quashed on that ground.

The House of Lords therefore dismissed the appeal and upheld the Court of Appeal's decision.

Appeal dismissed. The House of Lords held that (1) the control order did not amount to a deprivation of liberty under article 5 on the special facts (12-hour curfew, residence with family, access to garden and social contacts, freedom outside curfew) and (2) although the Secretary of State's consultation duty under section 8 of the Prevention of Terrorism Act 2005 and the duty to keep prosecution prospects under review are mandatory and significant, they are not conditions precedent to making a control order; any failure to supply the Belgian judgments did not establish that, but for the breach, there would have been a realistic prospect of prosecution such as to render the order unlawful.

Beatson J (Administrative Court) quashed the control order: [2007] EWHC 233 (Admin). The Court of Appeal (Pill, Wall and Maurice Kay LJJ) allowed the Secretary of State's appeal and set aside Beatson J's order: [2007] EWCA Civ 459. The House of Lords dismissed the appellant's appeal: [2007] UKHL 47.