Secretary of State for the Home Department Respondent v. E and another (Appellant)

A control order restricts, rather than deprives, a person of liberty where its core element of confinement is insufficiently stringent, even though ancillary controls over visitors, meetings and searches are intrusive.

Criminal prosecution must be preferred where it is realistically feasible. Consultation under section 8(2) of the Prevention of Terrorism Act 2005, and receipt of a negative response, are not conditions precedent to a control order. The Secretary of State must nevertheless keep the necessity of the order under review, take reasonable steps to ensure meaningful reconsideration of prosecution and provide relevant material to the prosecuting authorities. A breach justifies quashing only where it materially vitiates the decision to make or maintain the order.

E challenged a non-derogating control order imposed under the Prevention of Terrorism Act 2005. His wife, S, was joined but raised no separate live issue. Beatson J quashed the order, holding that its cumulative restrictions deprived E of liberty contrary to article 5 of the European Convention on Human Rights and that the Secretary of State had failed properly to keep the prospect of prosecution under review: [2007] EWHC 233 (Admin).

The Court of Appeal allowed the Secretary of State's appeal and set aside that order: [2007] EWCA Civ 459. E appealed on two questions: whether the control order deprived him of liberty and whether a breach of the duties concerning possible criminal prosecution required the order to be quashed.

1. Appeal unanimously dismissed. Lord Bingham delivered the leading speech. Lord Hoffmann, Baroness Hale, Lord Carswell and Lord Brown agreed that neither ground justified quashing the control order.

2. Article 5. Per Lord Bingham and Baroness Hale, the starting point was the core element of physical confinement. E's 12-hour overnight curfew was within the range accepted as restricting liberty. It confined him to his own home with his wife and children. Outside curfew hours he had no geographical restriction and could attend his chosen mosque. Controls over visitors and meetings, and intrusive searches, were relevant but could not themselves create a deprivation of liberty where the confinement was insufficiently stringent. The case was materially distinguishable from Secretary of State for the Home Department v JJ and others [2007] UKHL 45.

3. Preference for prosecution. Per Lord Bingham, prosecution is the governing preference whenever it is realistically feasible. The control-order regime is not an alternative to ordinary criminal justice where prosecution has a reasonable prospect of success. Baroness Hale described a control order as second best for both public protection and the controlled person.

4. Conditions for making an order. Per Lord Bingham, Baroness Hale and Lord Carswell, compliance with section 8(2) of the Prevention of Terrorism Act 2005 is mandatory and must be taken seriously, but it is not a condition precedent to making a non-derogating control order. Nor must the Secretary of State first obtain an assurance that prosecution is infeasible. Those matters are highly relevant to whether the order is necessary. A court should routinely examine compliance with section 8(2) and require convincing reasons for any omission.

5. Continuing review. Per Lord Bingham, Baroness Hale and Lord Carswell, the Secretary of State must keep the decision to impose or maintain a control order under review. The duty requires reasonable steps to ensure that reconsideration of prosecution is meaningful, including supplying the police with relevant material not already available to them. It does not transfer the prosecution decision from the police and prosecuting authorities to the Secretary of State.

6. Remedy. The failure to provide the Belgian judgments to the police was a material, rather than merely technical, breach of the continuing duty. A breach does not automatically vitiate the control order. Quashing may be appropriate where, but for the breach, the person could and should have been prosecuted with a reasonable prospect of success, undermining the necessity of the order. That condition was not established on the available material.

1. House of Lords: Dismissed E's appeal unanimously and affirmed the Court of Appeal's restoration of the control order: [2007] UKHL 47.
2. Court of Appeal: Allowed the Secretary of State's appeal and set aside the order quashing the control order: [2007] EWCA Civ 459, [2007] 3 WLR 1.
3. High Court, Administrative Court: Beatson J quashed the control order on article 5 and continuing-review grounds: [2007] EWHC 233 (Admin), [2007] HRLR 472.