DD v Secretary of State for the Home Department

A TPIM must satisfy proportionality requirements, even where the Secretary of State has broad institutional advantages in assessing terrorist risk. Article 3 ECHR is absolute: national-security considerations cannot justify treatment which reaches the Article 3 threshold. The assessment must account for the individual’s mental and physical condition, the duration and cumulative effect of the measures, available medical care, and whether the measures remain necessary. The court must give appropriate weight to the Secretary of State’s assessment but must intensely scrutinise particularly intrusive measures and consider alternatives. A measure may become disproportionate through the passage of time or changed circumstances. On the evidence, continued electronic tagging breached Article 3, while restrictions on the family’s electronic devices had become disproportionate under Article 8.

The appellant was subject to a TPIM imposed in October 2012. It was revoked during periods of imprisonment for breaches and revived on release, and was extended in October 2014. Four appeals concerned the revivals and the extension. The appellant relied principally on the severe effect of the TPIM, especially electronic tagging, on his mental health, and on the effects of restrictions on electronic communications upon his wife and children. The court considered whether the statutory conditions remained satisfied, whether the measures breached Articles 3 and 8 ECHR, and whether particular measures remained proportionate.

1. Statutory framework and review. The court applied the principles applicable on judicial review under section 16 of the Terrorism Prevention and Investigation Act 2011. The respondent’s assessment that the statutory conditions were met was not flawed. The appellant’s extremist mindset, support for Al-Shabaab and continuing risk were sufficiently established.
2. Proportionality. Following SSHD v MB [2007] QB 415, the court gave weight to the Secretary of State’s superior institutional position but subjected each obligation to intense scrutiny. The more intrusive the measure, the more compelling its justification had to be. The passage of time was material, and an exit strategy should be considered as the TPIM approached its statutory limit. The guidance in BG v SSHD 2011 IWLR 2917 concerning phased winding down was relevant.
3. Article 3. Article 3 was absolute. A breach could not be justified by national security or by the legitimacy of the underlying TPIM. The assessment was relative and included the treatment’s duration, physical and mental effects, and the appellant’s health. The medical evidence showed substantial deterioration, a heightened risk of self-harm and suicide, and a particularly damaging effect from the tag. The court therefore held that continued tagging breached Article 3 and quashed the monitoring measures.
4. Article 8 and family devices. Paragraph 7 of Part 1 of Schedule 1 permitted restrictions relating to devices used by other persons in the residence, but those restrictions had to remain proportionate under Article 8(2). The restrictions had become disproportionate after about two and a half years. The electronic communication measures were varied to permit each child one laptop or iPad with wireless internet access and use of mobile phones while the appellant was present, subject to safeguards preventing his use of them. The remaining measures were left in force.

The judgment itself records that an earlier appeal against the Article 3 preliminary ruling was withdrawn. The present court determined four appeals against revivals and an extension of the TPIM.