Judgments - Secretary of State for the Home Department (Appellant) v. JJ and others (FC) (Respondents)

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    44.  My Lords, these cases seem to me to provide a clear enough statement and illustrations of the principle. In order to preserve the key distinction between the unqualified right to liberty and the qualified rights of freedom of movement, communication, association and so forth, it is essential not to give an over-expansive interpretation to the concept of deprivation of liberty. I remain of the opinion which I expressed in A v Secretary of State for the Home Department [2005] 2 AC 68, 129-132 that the power to derogate in peace time is a narrow one and that politically or religiously motivated violence, even threatening serious loss of life, does not necessarily "threaten the life of the nation" within the meaning of the Convention. The liberty of the subject and the right to habeas corpus are too precious to be sacrificed for any reason other than to safeguard the survival of the state. But one can only maintain this position if one confines the concept of deprivation of liberty to actual imprisonment or something which is for practical purposes little different from imprisonment. Otherwise the law would place too great a restriction on the powers of the state to deal with serious terrorist threats to the lives of its citizens. In the case of anything less than actual deprivation of liberty, the other rights which are undoubtedly engaged are in my opinion adequately protected by the requirement that any interference with them must be necessary and proportionate in the interests of national security.

    45.  If one applies these principles to the facts of the present case, the answer seems to me to be clear. I find it impossible to say that a person in the position of LL is for practical purposes in prison. To describe him in such a way would be an extravagant metaphor. A person who lives in his own flat, has a telephone and whatever other conveniences he can afford, buys, prepares and cooks his own food, and is free on any day between 10 am and 4 pm to go at his own choice to walk the streets, visit the shops, places of entertainment, sports facilities and parks of a London borough, use public transport, mingle with the people and attend his place of worship, is not in prison or anything that can be called an approximation to prison. True, his freedom of movement, communication and association is greatly restricted compared with an ordinary person. But that is not the comparison which the law requires to be made. The question is rather whether he can be compared with someone in prison and in my opinion he cannot.

    46.  Sullivan J and the Court of Appeal came to a different conclusion. But there is no indication in either judgment that they applied what in my opinion is the correct test. Lord Phillips of Worth Matravers CJ said (at [2007] QB 446, 457) that confining someone to his flat for 18 hours a day "makes most serious inroads on liberty". So it does. He went on to agree with Sullivan J that one had to take into account that even when he was outside his flat, LL's freedom was restricted as to how far he could go, whom he could arrange to meet and so on. That is true. The Lord Chief Justice said (at p 460) that "at the end of the day", Sullivan J had to make "a value judgment as to whether, having regard to 'the type, duration, effects and manner of implementation' of the control orders they effected a deprivation of liberty." But that formulation offers no guidance as to what would count as a deprivation of liberty. It simply says that the judge must take everything into account and decide the question, without saying what the question is. For these reasons I consider that the judge and the Court of Appeal not so much misdirected themselves as gave themselves no directions at all. If they had asked themselves whether the person in question could realistically be regarded as being for practical purposes in prison, I do not see how they could have arrived at the conclusion which they did.

    47.  If I had considered that the combined effect of the obligations imposed by the control orders was a deprivation of liberty, I would have had to decide whether the control order should simply be quashed or whether different obligations which did not have the same effect could be substituted.

    48.  The procedure for making a control order (except in cases of urgency) is that the Secretary of State must apply to the court for permission: see section 3(1)(a) of the 2005 Act. If the court gives permission it must give directions for a hearing "as soon as reasonably practicable after it is made": section 3(2)(c). In these cases, Sullivan J gave permission and directions for the hearing over which he then presided. Section 3(10) provides that at such a hearing the function of the court is to determine whether any of the following decisions of the Secretary of State was "flawed":

    (a)  his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

    (b)  his decisions on the imposition of each of the obligations imposed by the order.

    49.  Section 3(11) says that in deciding what constitutes a flawed decision, the court must apply the principles of judicial review. So the question for the court will be whether the decisions of the Secretary of State as to the matters mentioned in section 3(10) were unlawful on one of the normal grounds for judicial review. In the cases before the House, there is no challenge to the Secretary of State's decision that the requirements of section 2(1)(a) and (b), which I have already quoted, were satisfied. The basis of the challenge is that the cumulative effect of the imposition of the obligations infringed the Convention right under article 5.1. If that was the case, the imposition of the obligations would have been unlawful because contrary to the duty of the Secretary of State under section 6(1) of the Human Rights Act 1998.

    50.  Section 3(12) then provides that if the court determines that a decision of the Secretary of State was flawed, "its only powers are":

    (a)  power to quash the order;

    (b)  power to quash one or more obligations imposed by the order; and

    (c)  power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

    51.  Section 3(10) makes it clear that the Secretary of State's decision to impose each of the obligations is to be considered as a separate decision, although of course in determining whether it is flawed, the court may have to consider its cumulative effect in conjunction with the decisions to impose the other obligations. By section 3(12), if the court thinks that the decision to impose a particular obligation was unlawful, it may quash that obligation or direct the Secretary of State to modify it. The plain meaning of these provisions seems to be that if, for example (like my noble and learned friend Lord Brown of Eaton-under-Heywood), the court considers, that the obligations infringe article 5.1 because they require someone to remain indoors 18 hours a day but that they would be perfectly lawful if they only required him to remain indoors for 16 hours a day, the court is not obliged to quash the order. It can simply direct the Secretary of State to modify that particular obligation.

    52.  Sullivan J decided nevertheless to quash the orders. He said:

    "I have no doubt that the proper course is to quash these control orders under paragraph (a) and that it would not be appropriate to direct the Secretary of State to revoke the orders or to modify the obligations imposed by them. A direction to revoke or to modify carries with it the implication that there is in existence an order which was lawfully made by the Secretary of State, but which has been found to be flawed for some reason. The short answer to the Secretary of State's submission that he should be directed to modify these orders is that since he had no power to make them in the first place, there is simply nothing to revoke. The orders were made 'without jurisdiction' in the narrow pre-Anisminic ([1969] 2 AC 147) sense of lack of jurisdiction. Each order would therefore have been described as a 'nullity', when the distinction between jurisdictional and non-jurisdictional error of law was still of consequence."

    53.  I am afraid that I must respectfully disagree with this reasoning. If the order of the Secretary of State is found to be flawed on principles of judicial review, that means that it was not lawfully made. I do not understand how some unlawful orders can be more lawful than others or that it makes sense to invoke distinctions which English law abandoned forty years ago in order to create different categories of unlawfulness. The power to direct the Secretary of State to revoke or modify the order does not imply that the order was lawfully made. On the contrary, the power arises only if the order is found to have been flawed, that is to say, not lawfully made. Thus the grounds on which the judge refused to consider the exercise of the powers conferred by section 3(12)(b) and (c) would simply write them out of the statute. But there seems to me no conceptual reason why Parliament should not say that if the exercise of a power is found to have been unlawful, the court shall have power to modify the order or direct the Secretary of State to modify it so as to make it lawful. The judge's failure to accept that he had these powers means that in my opinion he did not properly exercise his discretion.

    54.  The Court of Appeal said that the reasons which Sullivan J gave for quashing the orders were "compelling". In addition to the conceptual reason which he gave, Sullivan J also said that quashing the orders would be fair because then the people against whom they were made could not be prosecuted for contravening them. That may in some circumstances be a good reason, but I do not think it will always be so. Ordinarily, people who challenge the validity of orders made against them are not free simply to ignore them. They must obey them until they are set aside. The decision to make the order may have been flawed for some reason which has nothing to do with the obligation which has been contravened. The Court of Appeal added that the Secretary of State was in a better position than the court to devise a "new package of obligations". But that seems to me to carry little weight if the Secretary of State says that he will be content with the modification which the court thinks necessary to make the orders lawful, such as a small reduction in the curfew period.

    55.  If, therefore, I had thought that the decision to impose any of the obligations under the orders was flawed, I would have remitted the case to the judge to reconsider the exercise of his powers under section 3(12). But because I think that none of them was flawed, the question does not arise.

    56.  As for the question of compliance with article 6, I think that for the reasons I have given in Secretary of State for the Home Department v AF and Secretary of State for the Home Department v MB [2007] UKHL 46 proceedings concerning control orders are not criminal proceedings and that the special advocate procedure complies with the requirements of article 6 for civil proceedings. I would therefore allow the appeals of the Secretary of State.

BARONESS HALE OF RICHMOND

My Lords,

    57.  What does it mean to be deprived of one's liberty? Not, we are all agreed, to be deprived of the freedom to live one's life as one pleases. It means to be deprived of one's physical liberty: Engel v The Netherlands (No 1)(1976) 1 EHRR 647, para 58. And what does this mean? It must mean being forced or obliged to be at a particular place where one does not choose to be: eg X v Austria (1979) 18 DR 154. But even that is not always enough, because merely being required to live at a particular address or to keep within a particular geographical area does not, without more, amount to a deprivation of liberty. There must be a greater degree of control over one's physical liberty than that. But how much? As the Judge said, the Strasbourg jurisprudence does not enable us to narrow the gap between "24-hour house arrest seven days per week (equals deprivation of liberty) and a curfew/house arrest of up to 12 hours per day on weekdays and for the whole of the weekend (equals restriction on movement)": [2006] EWHC 1623 (Admin), para 33, referring to the cases cited by my noble and learned friend Lord Bingham of Cornhill, at paras 14 and 18 above.

    58.  The Strasbourg jurisprudence does tell us that "deprivation of liberty may . . . take numerous other forms" than "classic detention in prison or strict arrest imposed on a serviceman": Guzzardi v Italy (1980) 3 EHRR 333, para 95. We must look at the "concrete situation" of the individual concerned and take account of "a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question": ibid, para 92; also Engel, para 59; HL v United Kingdom (2004) 40 EHRR 761, para 89. However, 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. It also appears that restrictions designed, at least in part, for the benefit of the person concerned are less likely to be considered a deprivation of liberty than are restrictions designed for the protection of society: see Secretary of State for the Home Department v Mental Health Review Tribunal and PH [2002] EWCA Civ 1868, paras 16-17, citing Nielsen v Denmark (1988) 11 EHRR 175 and HM v Switzerland (2002) 38 EHRR 314; Davis v Secretary of State for the Home Department [2004] EWHC 3113 (Admin).

    59.  The Judge took as his starting point the requirement to remain in the "residence" for 18 hours each day, between 4.00 pm and 10.00 am: see para 60. This is classic detention or confinement. It is secured by electronic tagging, a requirement to clock out on leaving and clock in on returning, and by arrest and imprisonment for disobedience, rather than by lock and key. But that makes no difference: "to determine whether a person is deprived of his or her liberty the Court must look upon the actual circumstances of the regime to which he or she was subject, as a matter of law and in fact"; having the opportunity to breach the requirements of that regime does not take it outside article 5: Pekov v Bulgaria (App no 50358/99, 30 June 2006), para 73.

    60.  Having taken the 18 hour curfew as his starting point, the Judge went on to consider the concrete situation of the controlled persons, at first during the curfew hours and then during their six hours of comparative freedom. If we do the same, we can see the extent to which the regime controlled their lives and cut them off from normal society. With one exception, they were required to move from the places where they had previously lived to prescribed addresses in a different area. These addresses were one bed-roomed flats where they lived alone. They were not allowed into the communal areas during the curfew hours. They were allowed one landline telephone apart from the dedicated line supplied by the monitoring company. They were not allowed access to the internet nor were they supplied with any other means of making their isolation more bearable. No-one was to be allowed in at any time, apart from their own lawyers, the emergency services or healthcare or social work professionals in an emergency, and anyone required to be given access under the terms of the tenancy. They were also required to allow the police to enter and search at any time, to remove or inspect anything, and to install equipment to ensure compliance with the order. Any other visitor required the prior approval of the Home Office, which had to be supplied with the name, address, date of birth and a photograph. Not surprisingly, there had been few requests for approval. The cases against the controlled persons rested largely on their links with one another and with other people with links to known terrorist individuals or organisations. Who - apart from someone with a professional reason to do so or a close family member (and these people have no family here) - would want to be seen to be associating with them?

    61.  Undoubtedly, these people were deprived of their liberty during the curfew hours. Did the fact that they were allowed out for up to six hours a day make any difference? The areas to which they were restricted consisted, save in one case, of large parts of some major cities, including parks, recreational facilities, libraries, shops, and healthcare services. They had the freedom to choose what to do and what to buy with the small allowances with which they were provided (mainly in vouchers). But that freedom was also severely curtailed. Without prior Home Office agreement, they were not allowed to meet anyone by prior arrangement, apart from their lawyers or health or welfare workers at an agreed establishment; nor were they allowed to attend any pre-arranged meetings or gatherings, apart from attending group prayers at a mosque. And the areas to which they were confined were deliberately designed to cut them off from their old haunts and acquaintances. Even supposing that the Home Office would have been willing to allow them to register for regular educational classes or group recreational activities, the hours of 10.00 am to 4.00 pm do not fit in with any ordinary pattern of morning, afternoon or evening activity. Nor, in practice, would those whose immigration status allowed them to work be able to seek even part time employment.

    62.  It is in this context that the Judge talked of a 'normal' life. He was not starting from a normal life and seeing how far the control order regime differed from this. He was starting from the 18 hour curfew and assessing how far they were nonetheless able to pursue a normal life. The reality is that every aspect of their lives was severely controlled. They were allowed out each day to go for a long and solitary walk, to attend prayers at their nominated mosques, and to buy such limited supplies as they could afford. This would not prevent detention in a psychiatric hospital under the Mental Health Act 1983 from being a deprivation of liberty: see Ashingdane v United Kingdom (1985) 7 EHRR 528. It is not surprising that the Judge concluded that "The respondents' 'concrete situation' is the antithesis of liberty, and is more akin to detention in an open prison, where the prisoner is 'likely to be released from prison regularly in order to work, take town visits and temporary release on resettlement or facility licence': see paragraph 5.37 of Prisoners and the Law, 3rd edn, by Creighton and others." Indeed, in several respects a prisoner might be better off: para 74.

    63.  In common with the Court of Appeal and with my noble and learned friends, Lord Bingham of Cornhill and Lord Brown of Eaton-under-Heywood, therefore, I consider that the Judge applied the right test and, for what it is worth, reached a conclusion on the facts with which I would agree. It is necessary to focus on the actual lives these people were required by law to lead, how far they were confined to one place, how much they were cut off from society, how closely their lives were controlled. The Judge was entitled to conclude that the concrete situation in which they found themselves did deprive them of their liberty within the meaning of article 5 of the Convention. As such situations may be many and various I would hesitate to suggest, in the abstract, what length of curfew would fall on the other side of the line.

    64.  As to remedy, the 2005 Act draws a clear and principled distinction between control orders which do, and control orders which do not, amount to a deprivation of liberty. It recognises that people should not be deprived of their liberty on the basis of reasonable suspicion alone: involvement in terrorist-related activity must be proved: 2005 Act, s 4(7)(a). It also recognises that only a court may deprive people of their liberty: 2005 Act, s 1(2)(b). The Home Secretary has no power to make such an order. For the reasons given by Lord Bingham, the Judge had no choice but to quash these orders. To his speech, I am merely the chorus. I too would dismiss these appeals.

LORD CARSWELL

My Lords,

    65.  The tension between the opposing imperatives of protecting the safety of the public and protecting individual human rights has increased steadily in the past few years, and finding an acceptable resolution has grown progressively more difficult. The Government has taken steps designed to discharge its duty of protecting the public against terrorism and these have been the subject of regular challenges by those adversely affected by them. Parliament is not free to legislate as it chooses in this sphere: its ability to do so is limited by the provisions of the Human Rights Act 1998 and the necessity for legislation to be compatible and steps taken to be compliant with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The duty falls upon the courts of undertaking the difficult task of adjudicating upon that compatibility and compliance.

    66.  The dangers to the public posed by terrorist action give rise to very serious concern, shared by all responsible citizens. The subjects of the present appeals are persons about whom the authorities possess information which, if correct, would mean that they pose a very significant potential danger to the safety of the public. In each case, notwithstanding the extent and nature of the information, the evidence capable of being adduced in criminal prosecutions is regarded as being insufficient to obtain convictions of criminal offences. They cannot be deported or extradited, because of the constraints of article 3 of the Convention, as it is claimed that they would face torture or inhuman treatment if returned to their own countries. In order to meet this situation, Parliament, rather than leave them at large, enacted section 23 of the Anti-terrorism, Crime and Security Act 2001, providing for the detention of such persons despite the fact that their removal or departure from the United Kingdom was prevented. For this to be done there had to be a derogation from article 5(1)(f) of the Convention, which was effected by the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644).

    67.  That expedient foundered when the House held in A v Secretary of State for the Home Department [2005] 2 AC 68, on a challenge by some of the detained persons, that section 23 of the 2001 Act was discriminatory and disproportionate, with the consequence that it could not be regarded as strictly required for the purposes of article 15 of the Convention, the derogation provision. The House accordingly declared section 23 to be incompatible with the Convention rights under articles 5 and 14 and quashed the 2001 Order.

    68.  In consequence of this decision the Government turned to the idea of keeping such terrorist suspects under supervision by means of control orders and Parliament brought them into effect by enacting the Prevention of Terrorism Act 2005 ("the 2005 Act"). Their object, as the long title of the Act states, is to impose obligations upon them "for purposes connected with preventing or restricting their further involvement" in terrorism-related activity. They operate, as my noble and learned friend Lord Hoffmann has stated (para 34) by making it easier for the security services to keep a close watch on what they are doing and inhibiting their participation in terrorist conspiracies. The material provisions of the 2005 Act and the content of the control orders in question have been set out in detail in the opinion of my noble and learned friend Lord Bingham of Cornhill and I gratefully adopt these without repeating them.

    69.  In the appeal to which this opinion relates, the issue argued was whether control orders constituted a deprivation of liberty and so a breach of article 5(1) of the Convention. The word "liberty" has a range of meanings. In a narrower sense it may mean physical freedom to move, so that deprivation of liberty would be physical incarceration or restraint. In a wider sense it may mean the freedom to behave as one chooses, for example, liberty of speech. For the reasons which I shall give, and in agreement with those set out by Lord Hoffmann, I am of opinion that in the phrase "deprived of his liberty" in article 5(1) the word should be interpreted in the narrower sense which I have defined.

    70.  Lord Hoffmann has pointed out, but I would emphasise it again, that the challenge to the control orders is being made only under article 5 of the Convention and not under article 2 of Protocol No 4, which provides for the right to liberty of movement, since the United Kingdom has not ratified that Protocol. It is of great importance to draw a clear distinction between the two articles. The existence of article 2 of Protocol No 4 shows in my opinion that the framers of this provision were conscious of the limited extent of article 5 of the Convention and saw the need for a separate provision to cover restriction of movement. I think that its existence also supports the view that the ambit of article 5 should be kept clear and distinct from that of article 2 of Protocol No 4, and that there is no need or room for a purposive construction of article 5 which would extend it in the direction of applying to restrictions of movement.

    71.  The Court of Appeal [2007] QB 446 expressed the view in paragraphs 12-13 of its judgment in JJ's case that Sullivan J in the Administrative Court correctly interpreted "liberty" in accordance with the direction of the European Court of Human Rights in its judgment in Guzzardi v Italy (1980) 3 EHRR 333 (to which I shall return in more detail later) and rejected Mr Sales' contention on behalf of the Secretary of State that the learned judge had taken too broad a meaning and had considered the extent to which the restrictions contained in the control orders interfered with "normal life". I am unable to agree with this view, and examination of the terms of the judgment of Sullivan J will show that he did just what Mr Sales attributed to him.

    72.  Having summarised in paragraph 15 some of the principles propounded in Guzzardi, the judge then said in paragraph 54:

    "54 The extent to which the individual is subject to supervision, the extent to which he can make social contacts, the extent to which he has access to public facilities, and whether he is free to make telephone calls or otherwise to communicate with whomsoever he wishes, are all aspects of a broader question: to what extent is the individual subject to the obligations able to lead a life of his choice, which for convenience may be described as a 'normal' life? If one asks the question 'deprived of liberty to do what?', the answer must be: deprived of the freedom to lead one's life as one chooses (within the law). That freedom is the antithesis of a life which is subject to the kinds of control to which a prisoner, whose 'liberty to do anything is governed by the prison regime' is subject: see per Lord Jauncey at page 176H of R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992]1 AC 58."

 
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