Secretary of State for the Home Department v AP

Whether a control order deprives a person of liberty under article 5 of the European Convention on Human Rights depends on its actual cumulative effect in the concrete circumstances. The court must consider the type, duration, effects and implementation of all restrictions. A restriction relevant to article 8 may therefore tip the article 5 balance even though it is proportionate under article 8.

Personal circumstances affecting family contact and social isolation are relevant. Isolation attributable to unreasonable conduct by the controlled person, family or friends must, however, be disregarded because the control order is not its operative cause. Appellate courts should respect the fact-sensitive assessments of specialist Administrative Court judges unless an error of law is established.

AP was subject to a control order under the Prevention of Terrorism Act 2005. It imposed a 16-hour curfew and required him to move from London, where his family and associates lived, to a Midlands town about 150 miles away. Keith J found that the relocation was proportionate under article 8 but that its isolating effect, combined with the curfew and other restrictions, deprived AP of liberty under article 5. He quashed the residence obligation: [2008] EWHC 2001 (Admin).

By a majority, the Court of Appeal allowed the Secretary of State's appeal, holding that family-visiting difficulties could not tip the article 5 balance and that the judge's factual findings were inconsistent: [2009] EWCA Civ 731. The Supreme Court considered whether proportionate article 8 restrictions could be decisive under article 5, whether person-specific circumstances were relevant, and whether the first-instance findings were inconsistent.

1. Appeal allowed unanimously. Lord Brown delivered the leading judgment, with which Lord Phillips, Lord Saville, Lord Walker and Lord Clarke agreed. Lord Rodger and Sir John Dyson also agreed that the appeal should be allowed. The Court of Appeal's decision was set aside and Keith J's order restored.

2. The article 5 inquiry requires an assessment of the controlled person's concrete situation. The court must examine the restrictions as a whole, including their type, duration, effects and implementation. Actual confinement remains the principal consideration, but other restrictions can tip the balance where the curfew falls within the grey area between 14 and 18 hours. A 16-hour curfew will amount to a deprivation of liberty only where the other conditions are unusually destructive of the life which the person might otherwise have led.

3. A restriction relevant to article 8 may be decisive under article 5 even though it is justified and proportionate under article 8. Once a consideration is legally relevant, the weight assigned to it is a factual matter for the decision-maker, subject to review for irrationality. Keith J therefore made no error by treating the loss of family contact and resulting social isolation as tipping the balance.

4. The court must consider the actual effect of the measures in the individual's circumstances. The practical ability of family members to visit, including difficulties arising from childcare, health or poverty, cannot be ignored merely because another family might have overcome them. Contact lost through the unreasonable conduct of the controlled person, family or friends must nevertheless be disregarded, because the residence requirement would not then be the operative cause of the isolation. No unreasonable conduct was alleged here.

5. Keith J's findings were not inconsistent. His recognition that family visits remained possible despite logistical and financial difficulties was compatible with his shorthand conclusion that AP would still have seen and received visits from his family had he remained in London.

6. The nominated Administrative Court judges possess special expertise and use procedures, including closed material and special advocates, which make their factual assessments particularly unsuitable for appellate reappraisal. Their judgments in control-order cases should not readily be disturbed where no error of law is shown.

1. United Kingdom Supreme Court: Allowed AP's appeal unanimously, set aside the Court of Appeal's decision and restored Keith J's order: [2010] UKSC 24.
2. Court of Appeal: By a majority, allowed the Secretary of State's appeal against Keith J's determination; Carnwath LJ dissented: [2009] EWCA Civ 731.
3. Administrative Court: Keith J allowed AP's appeal against the modification of his control order and quashed the obligation to reside in the Midlands under section 10(7)(b) of the Prevention of Terrorism Act 2005: [2008] EWHC 2001 (Admin).