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Secretary of State for the Home Department (Appellant) v. JJ and others (FC) (Respondents)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Secretary of State for the Home Department (Appellant) v. JJ and others (FC) (Respondents)
 UKHL 45
LORD BINGHAM OF CORNHILL
1. In a judgment given on 28 June 2006 Sullivan J held that obligations imposed on the respondents in control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 deprived the respondents of their liberty in breach of article 5 of the European Convention on Human Rights and that the orders should be quashed:  EWHC 1623 (Admin). The Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) dismissed the Secretary of State's appeal against that decision on 1 August 2006:  EWCA Civ 1141,  QB 446. On this appeal to the House the Secretary of State challenges both limbs of the decisions below, contending that the obligations imposed on the respondents did not deprive them of their liberty and that, if they did, the orders should have been modified and not quashed.
2. This is one of four appeals heard by the House together. The facts of the four appeals are different. Some issues are common to more than one appeal, and some are not. Separate judgments were given below at first instance and (in three of the appeals) by the Court of Appeal. It is convenient to give separate judgments in this appeal, in the appeal involving E, and in the appeals involving AF and MB, making such cross-reference as is necessary to avoid repetition.
3. There are six respondents, to whom I shall refer as "the controlled persons" save where it is necessary to distinguish between them. Five of the controlled persons are Iraqi nationals. The sixth (LL, who has absconded and is not represented in this appeal) is either an Iraqi or an Iranian national. Three have leave to remain in this country and three have temporary admission. All are suspected by the Secretary of State to have been involved in terrorism-related activities and are assessed to pose a threat to the public within the United Kingdom or overseas. None has been charged with or prosecuted for any offence related to terrorism.
4. The Prevention of Terrorism Act 2005 was enacted on 11 March 2005. It repealed Part 4 of the Anti-terrorism, Crime and Security Act 2001, including section 23, which the House had found to be incompatible with articles 5 and 14 of the Convention in A and others v Secretary of State for the Home Department  UKHL 56,  2 AC 68. The purpose of the 2005 Act, as expressed in the long title, was "to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity." At the forefront of his argument the Secretary of State stresses the grave threat presented to the public by the criminal activity of terrorists; the imperative duty of democratic governments to do what can lawfully be done to protect the public against that threat; and the balance inherent in the European Convention between the rights of individuals and the rights of the community as a whole. These considerations provide the important backdrop to these appeals, but they need not be elaborated since they are not controversial.
5. As will be seen in paragraph 7 below, the 2005 Act is drafted with express reference to article 5 of the European Convention. Article 5 provides that "Everyone has the right to liberty and security of person". The article continues: "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law". There follows a list ((a) to (f)) of cases in which a person may be deprived of his liberty in accordance with a procedure prescribed by law. The cases listed are those in which any democratic state is likely to exercise a power to detain: on sentence following conviction, breach of a court order, arrest on suspicion of crime, infectious disease, mental illness, unlawful entry, pending action to deport or extradite, and so on. This list, as the European Court of Human Rights has repeatedly emphasised, is exhaustive and is to be narrowly interpreted (see, for instance, Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 57; Kurt v Turkey (1998) 27 EHRR 373, para 122; Mancini v Italy (App no 44955/98, 12 December 2001), para 23. This reflects the importance attached by the Convention to the right to liberty and security. Thus a person may not be deprived of his liberty unless his case falls within one of the listed classes of case. That proposition, however, is subject to one qualification. By article 15 of the Convention, given domestic effect by sections 14 and 16 of the Human Rights Act 1998, a state party to the Convention may derogate from article 5, subject to certain formalities, " in time of war or other public emergency threatening the life of the nation to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law". It is common ground that none of the cases subject to this appeal fall within any of the categories listed in (a) to (f) of article 5 of the Convention, and the United Kingdom has not derogated from its obligation to comply with that article. It necessarily follows that if, as the controlled persons (with the support of Justice) contend and the Secretary of State strongly denies, the effect of the obligations imposed on the controlled persons under the control orders is to deprive them of their liberty, such orders are inconsistent with article 5 of the Convention.
The 2005 Act
6. The core of the 2005 Act is found in section 1. Subsection (1) defines a control order as meaning "an order made against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism". Subsection (4) specifies the obligations which a control order "may include, in particular". It is not therefore an exclusive list. But it is a detailed list, containing sixteen potential obligations running from (a) to (p). It is unnecessary to recite the full list. Among the listed obligations are : "(d) a restriction on his association or communications with specified persons or with other persons generally; (e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence; (f) a prohibition on his being at specified places or within a specified area at specified times or on specified days; (g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom; (j) a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access; (k) a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened; ". A person who, without reasonable excuse, contravenes an obligation imposed on him by a control order is guilty of an offence punishable, on conviction on indictment to imprisonment for a term of up to five years (s.9(1) and (4)(a)).
7. The Act draws a categorical distinction between what it calls a "derogating control order" and what it calls a "non-derogating control order". The former is defined in section 15(1) to mean "a control order imposing obligations that are or include derogating obligations" and a "derogating obligation" is defined in section 1(10) to mean "an obligation on an individual which - (a) is incompatible with his right to liberty under Article 5 of the Human Rights Convention; but (b) is of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order." A "non-derogating control order" is defined in section 15(1) to mean "a control order made by the Secretary of State": it is one that does not consist of or include derogating obligations. Thus the premise of the Act is that control orders made under section 1 of the Act and including obligations within the scope of section 1(4) may, or of course may not, be incompatible with the controlled person's right to liberty under article 5 of the Convention.
8. The power to make a control order against an individual, in the case of an order imposing obligations that are or include derogating obligations, is exercisable by the court on an application by the Secretary of State (s.1(2)(b)); save where the order imposes obligations that are incompatible with the individual's right to liberty under article 5, the power is exercisable by the Secretary of State (s.1(2)(a)), with the permission of the court (s.3(1)(a)) save where the urgency of the case requires an order to be made without permission (s.3(1)(b)). In each case there is a preliminary hearing by the court, but the procedure differs (section 4(1) applies to derogating control orders, section 3(1)(a), (2), (3), (5) and (6) to non-derogating control orders). The threshold conditions for making an order are different. At the preliminary hearing, the court may make a derogating control order against the individual in question under section 4(3) if it appears to the court
By contrast, under section 2(1) the Secretary of State may make a non-derogating control order against an individual if he "(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual." At the preliminary hearing before such an order is made, or immediately after in case of urgency, the court's function is to consider whether the Secretary of State's decision is "obviously flawed" (s.3(2),(3)).
9. On the full hearing the function of the court is again different. In the case of a derogating control order the test reflects that set out in section 4(3) quoted above: the court may confirm the order, with or without modifications, only if (section 4(7))
In the case of a non-derogating order the function of the court is to decide, applying the principles applicable on an application for judicial review, whether any relevant decision of the Secretary of State was "flawed" (s.3(10)(11)).
10. A derogating control order has effect for six months unless revoked or renewed (s.4(8)), provided the derogation remains in force and the designation order was not made more than twelve months earlier (s.6(1)), and may be revoked or modified by the court (s.7(5)-(7)). A non-derogating control order has effect for a period of twelve months (s.2(4)), renewable indefinitely for twelve months at a time if the Secretary of State considers that the conditions for making it continue to obtain (s.2(6)). It may be revoked or modified by the Secretary of State (s.7(1)-(2), but he may not make any modification which converts a non-derogating control order into a derogating control order (s.7(3)). A power of arrest exists in relation to derogating but not non-derogating control orders (s.5).
11. In some respects the Act does not distinguish between the two types of order. Thus the duty on the Secretary of State and the chief officer of police in relation to prosecution, considered in more detail in the case of E, is the same in the two cases (s.8), as are the criminal consequences of contravening an obligation (s.9). The procedural provisions laid down in the Schedule to the Act apply to both types of control order proceedings (s.11), although the rules made pursuant to the rule-making power conferred by the Act distinguish between derogating control orders (Part II of Part 76 of the Civil Procedure Rules) and non-derogating control orders (Part III). No appeal lies to the Court of Appeal from any determination of the court in control order proceedings, except on a question of law (s.11(3)).
Deprivation of liberty
12. In ordinary parlance a person is taken to be deprived of his or her liberty when locked up in a prison cell or its equivalent. This common sense approach is, unsurprisingly, reflected in the Convention jurisprudence. Thus in Engel, above, para.58, the European Court has recognised that "In proclaiming the 'right to liberty', paragraph 1 of Article 5 is contemplating individual liberty in its classic sense, that is to say the physical liberty of the person", a ruling repeated in Guzzardi v Italy (1980) 3 EHRR 533, para.92. It has also referred to "classic detention in prison or strict arrest" (Guzzardi, para.95). Further, the court has recognised the distinction between deprivation of liberty and restriction of movement and freedom of a person to choose his residence. The latter are the subject of article 2 of Protocol 4 to the Convention, a provision which the United Kingdom has not ratified but which is accepted as relevant in interpreting the scope of the prohibition in article 5.
13. It is, however, common ground between the parties that the prohibition in article 5 on depriving a person of his liberty has an autonomous meaning: that is, it has a Council of Europe-wide meaning for purposes of the Convention, whatever it might or might not be thought to mean in any member state. For guidance on the autonomous Convention meaning to be given to the expression, national courts must look to the jurisprudence of the Commission and the European Court in Strasbourg, which United Kingdom courts are required by section 2(1) of the Human Rights Act 1998 to take into account. But that jurisprudence must be used in the same way as other authority is to be used, as laying down principles and not mandating solutions to particular cases. It is, as observed in R(Gillan) v Commissioner of Police of the Metropolis  UKHL 12,  2 AC 307, para 23, perilous to transpose the outcome of one case to another where the facts are different. The case law shows that the prohibition in article 5 has fallen to be considered in a very wide range of factual situations. It is to the principles laid down by the court in Engel and Guzzardi particularly, reiterated by the court on many occasions (see, for instance, Ashingdane v United Kingdom (1985) 7 EHRR 528, para 41, Amuur v France (1996) 22 EHRR 533, para 42), that national courts must look for guidance.
14. A series of Strasbourg decisions establishes that 24-hour house arrest has been regarded as tantamount to imprisonment and so as depriving the subject of his or her liberty : see, for example, Mancini v Italy, above, para 17; Vachev v Bulgaria (App no 42987/98, 8 October 2004), para 64; NC v Italy (App no 24952/94, 11 January 2001, para 33; Nikolova v Bulgaria (No 2) (App no 40896/98, 30 December 2004), para 60. In Trijonis v Lithuania (App no 2333/02, 17 March 2005) the applicant's complaint in relation to a period of 24-hour home arrest was held to be admissible. In Pekov v Bulgaria (App no 50358/99, 30 June 2006), para 73, it was argued by the Government that the house arrest of the applicant did not deprive him of his liberty since the monitoring authorities were far away, so that he could leave his house with impunity, but this was not an argument which the court accepted. The decision of the High Court of Justiciary in McDonald v Dickson 2003 SLT 467, para 17, that the appellant had not been deprived of his liberty during six days of 22-hour house arrest because he had not been subject to any physical confinement or restraint, cannot, in my respectful opinion, be reconciled with this authority.
15. Continuous house arrest may reasonably be regarded as resembling, save as to the place of confinement, conventional modes of imprisonment or detention. But the court has made clear (Guzzardi, para 95) that deprivation of liberty may take numerous forms other than classic detention in prison or strict arrest. The variety of such forms is being increased by developments in legal standards and attitudes, and the Convention must be interpreted in the light of notions prevailing in democratic states (ibid). What has to be considered is the concrete situation of the particular individual (Engel, para 59; Guzzardi, para 92; HL v United Kingdom (2004) 40 EHRR 761, para 89). Thus the task of a court is to assess the impact of the measures in question on a person in the situation of the person subject to them. The Strasbourg court has been true to this guiding principle. Thus in Engel, para 59, the court recognised that "A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman." In Ashingdane the applicant had been transferred from a high security mental hospital to an ordinary psychiatric hospital but was, it seems, still held to be detained and so deprived of his liberty (albeit legitimately) during the latest phase of his stay in the psychiatric hospital when he was on an open ward, was free to make regular unescorted visits to his family, was going home every weekend from Thursday to Sunday and was free to leave the hospital as he pleased on Monday to Wednesday provided only that he returned to his ward at night (see pp 536, 543-544).
16. Thus the court has insisted that account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution or implementation of the penalty or measure in question (Engel, para 59; Guzzardi, paras 92, 94). There may be no deprivation of liberty if a single feature of an individual's situation is taken on its own but the combination of measures considered together may have that result (Guzzardi, para 95). Consistently with this approach, account was taken in Guzzardi of a number of aspects of the applicant's stay on the island of Asinara : the locality; the possibilities of movement; his accommodation; the availability of medical attention; the presence of his family; the possibilities of attending worship; the possibilities of obtaining work; the possibilities for cultural and recreational activities; and communications with the outside (pp 342-345). In the result, the court on the facts attached weight (para 95) to the small area of the island open to him, the dilapidated accommodation, the lack of available social intercourse, the strictness of the almost constant supervision, a nine-hour overnight curfew, the obligation on him to report to the authorities twice a day and inform them of any person he wished to telephone, the need for consent to visit Sardinia on the mainland, the liability to punishment by arrest for breach of any obligation and the sixteen month period during which he was subject to these restrictions. Some of these matters plainly fall within the purview of other articles of the Convention. Because account must be taken of an individual's whole situation it seems to me inappropriate to draw a sharp distinction between a period of confinement which will, and one which will not, amount to a deprivation of liberty, important though the period of daily confinement will be in any overall assessment.
17. The Strasbourg court has realistically recognised that "The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance" (Guzzardi, para 93). There is no bright line separating the two. The court acknowledges (ibid) the difficulty attending the process of classification in borderline cases, suggesting that in such cases the decision is one of pure opinion or what may, rather more aptly, be called judgment.
18. In assessing the impact of the measures in question on a person in the situation of the person subject to them, the court has assessed the effect of the measures on the life the person would have been living otherwise. Thus no deprivation of liberty was held to result from light arrest of serving soldiers (Engel, para 61) since they continued to perform their duties and remained more or less within the ordinary framework of their army life. The decisions of the court on curfews during the night hours is consistent with that approach. The curfew from 9pm to 7am imposed in Raimondo v Italy (1994) 18 EHRR 237 and the obligation imposed on him not to leave home without informing the police did not prevent him living a normal life and did not deprive him of his liberty. In Labita v Italy (App no 26772/95, 6 April 2000) the applicant made no complaint of deprivation of liberty during a period when he was subject to a curfew from 8pm to 6am. In Ciancimino v Italy (1991) 70 DR 103 the applicant was obliged to live in a nominated commune which he was not permitted to leave, was obliged to report to the police daily at 11am and was subject to a curfew from 8pm to 7am, but this did not amount to a deprivation of liberty. The same result followed in Trijonis, above, in which from 11 January 2001 until 6 May 2002, the applicant was permitted to be at his work-place during week-days, subject to a curfew at his home from 7pm to 7am on week-days and for the whole day at the weekend. The court pointed out, contrasting the case with Guzzardi, that the applicant was allowed to spend time at work as well as at home during this period.
19. It is not, I think, suggested that the Strasbourg court has had to rule on any case at all closely comparable with the present. It is inappropriate to seek to align this case with the least dissimilar of the reported cases. The task of the English courts is to seek to give fair effect, on the facts of this case, to the principles which the Strasbourg court has laid down.
The obligations imposed on the controlled persons