Secretary of State for the Home Department v AP

Judicial review of a control order requires the court to determine whether the statutory conditions are flawed at the time of determination. The court must decide objectively whether the facts provide reasonable grounds for suspicion, while allowing appropriate deference to the Secretary of State on the measures necessary to protect the public. Each obligation requires intense scrutiny.

Whether obligations amount to deprivation of liberty under Article 5 depends objectively on the package as a whole, including the curfew, its duration, social isolation and manner of implementation. A curfew at the upper limit identified in earlier authority, combined with effective internal exile and restrictions on social arrangements, may amount to deprivation of liberty. A non-derogating control order producing that result is unlawful and must be quashed or appropriately remedied.

The Secretary of State made a non-derogating control order against AP under the Prevention of Terrorism Act 2005. The order imposed stringent restrictions, including a 16-hour curfew, residence at a specified address outside London, limits on association and attendance at mosques, electronic monitoring and reporting requirements.

The court reviewed the need for the order and its obligations. It also considered AP’s appeals against the refusal to vary restrictions on pre-arranged meetings and mosque attendance, and against the later modification requiring him to move from London. The central issues were whether the statutory conditions and obligations were satisfied, whether the obligations were proportionate under Articles 8 and 9 of the Convention, and whether their combined effect deprived AP of liberty contrary to Article 5.

1. Statutory conditions. Applying Secretary of State for the Home Department v MB [2007] QB 415, the court assessed the Secretary of State’s decision at the date of determination. It decided for itself whether the open facts amounted objectively to reasonable grounds for suspecting terrorism-related activity. On the necessity of protective measures, some deference was appropriate, but each obligation required intense scrutiny.
2. Reasonable suspicion and necessity. The evidence concerning AP’s attendance at the Cumbria camp, his trip to Somalia and his connections with persons associated with extremism, considered cumulatively, provided reasonable grounds for suspicion. The continuing risk, assessed against his beliefs, conduct and responses to the control order, made a control order necessary to protect the public.
3. Individual obligations. The restrictions requiring approval for arranged meetings and limiting AP to one approved mosque were necessary and proportionate. They addressed the risks arising from his associations and from extremist recruitment or communication through social and religious contacts. The court did not determine the technical question whether the first appeal fell within section 10(3), because the substantive issues could be considered on review under section 3(10).
4. Article 5. Adopting the principles summarised in Secretary of State for the Home Department v AH [2008] EWHC 1018 (Admin) and derived from Secretary of State for the Home Department v JJ [2008] 1 AC 385, the assessment was objective and concerned the package as a whole. Relevant factors included the nature, duration, effects and implementation of the measures, the length of the curfew and social isolation. The 16-hour curfew, equivalent to house arrest, combined with residence in an unfamiliar town, separation from family and friends, and inability to make ordinary social arrangements, amounted to deprivation of liberty. The analysis was consistent with Guzzardi v Italy (1980) 3 EHRR 333 and the significance attributed to the core element of confinement in Secretary of State for the Home Department v E [2008] 1 AC 499.
5. Outcome and remedy. The obligations were necessary under section 1(3), and interfered with Articles 8 and 9 in a manner justified by national security. Their combined effect nevertheless infringed Article 5. Under Secretary of State for the Home Department v JJ [2008] 1 AC 385, the order was therefore unlawful as a non-derogating order. The appropriate remedy, including whether to quash the relocation obligation or the control order more generally, was left for consideration at hand-down because the former London accommodation might no longer be available.

This was a first-instance judgment reviewing a control order and determining related statutory appeals. The judgment refers to earlier bail proceedings before SIAC and to the discontinuance of AP’s appeal there, but no prior judicial decision in the present control-order proceedings is identified.