AP v Secretary of State for the Home Department

Whether a control-order regime deprives a person of liberty under Article 5 depends on the concrete situation as a whole. A 16-hour curfew is not, as a matter of law, incapable of amounting to deprivation of liberty. The core element is confinement, while social isolation and other restrictions remain relevant to the overall assessment. They cannot, however, replace an insufficiently stringent core confinement. A court errs where it treats family-visit difficulties, properly analysed as an Article 8 consideration, as decisive under Article 5 after finding the control order necessary and proportionate. The assessment remains a judgment for the specialist judge, subject to correction for error of law.

AP, an Ethiopian national subject to a control order under the Prevention of Terrorism Act 2005, challenged a modification requiring him to live about 150 miles from London. The order included a 16-hour curfew, electronic tagging, and restrictions on association and communication. The Administrative Court, applying Article 5 of the Convention, held that the modified regime deprived AP of liberty and allowed his appeal against the modification: [2008] EWHC 2001 (Admin). The Secretary of State appealed. AP cross-appealed, arguing that the court should have directed residence in London rather than merely quashing the modification. The central issues were whether a 16-hour curfew could be insufficiently stringent as a matter of law, and whether relocation and its effects on family contact made the whole regime a deprivation of liberty.

1. Secretary of State’s appeal allowed; AP’s cross-appeal dismissed. The modified control order did not unlawfully deprive AP of liberty on the reasoning adopted by the majority. The cross-appeal did not arise, and the Administrative Court was right to quash rather than direct residence in London.
2. Article 5 requires assessment of the concrete situation, taking account of the type, duration, effects and manner of implementation of the measures. The distinction between deprivation of liberty and restriction of movement is one of degree or intensity. Neither Secretary of State for the Home Department v JJ and others nor any other authority established that a 16-hour curfew is legally incapable of engaging Article 5.
3. Although the core element of confinement is central, the other restrictions, including social isolation, may be relevant. They cannot themselves produce a deprivation of liberty where the core confinement is insufficiently stringent. On the facts, the majority treated the 16-hour curfew as compatible with Article 5 and held that the judge erred by allowing the effect of relocation on family visits to tip the Article 5 balance. The family could still visit AP, albeit with logistical and financial difficulty.
4. The majority also held that the judge had already found relocation necessary and proportionate for Article 8 purposes. It was therefore an error to use that Article 8 interference as decisive under Article 5. Wall LJ emphasised that Article 8 factors may be considered in an Article 5 assessment, but must not determine whether liberty has been deprived.
5. Lord Justice Carnwath dissented. He considered that the trilogy of House of Lords decisions supported lower and upper thresholds of about 14 and 18 hours, with a grey area in between for a specialist judge’s value judgment. In his view, the judge was entitled to take account of AP’s practical social and family isolation, and there was no error of law sufficient to justify intervention. He nevertheless agreed that the cross-appeal should be dismissed.
6. On disposal, a quashed control order will generally be replaced by a new order made by the Secretary of State, who is better placed to choose between alternative packages of personal, temporal and spatial restrictions.

• Court of Appeal (Civil Division): appeal from the Administrative Court allowed by Maurice Kay and Wall LJJ; Carnwath LJ dissented. AP’s cross-appeal dismissed.
• Administrative Court: Keith J confirmed the need for a control order but allowed AP’s appeal against the relocation modification, holding that the modified regime deprived him of liberty under Article 5: [2008] EWHC 2001 (Admin).