Secretary of State for the Home Department v JJ and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 August 2006 |
| Neutral Citation | [2006] EWCA Civ 1141 |
| Docket Number | Case No: T1/2006/9502 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 August 2006 |
[2006] EWCA Civ 1141
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005
MR JUSTICE SULLIVAN
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
The Master of The Rolls and
The President of the Queen's Bench Division
Case No: T1/2006/9502
MR PHILIP SALES, MR TIM EICKE & ANDREW O'CONNOR (instructed by Treasury Solicitors) for the Appellant
MR KEIR STARMER QC & MR RONAN TOAL (instructed by Messrs Tyndallwoods) for the Respondent HH
MR KEIR STARMER QC & MS STEPHANIE HARRISON (instructed by Messrs Tyndallwoods) appeared on behalf of the Respondent NN
MR RAZA HUSAIN and MR DANNY FRIEDMAN (instructed by Messrs Gladstones) appeared on behalf of the Respondents GG & KK
MR MANJIT GILL QC & MR BARNABAS LAMS (instructed by Messrs Lawrence & Co) appeared on behalf of the Respondent JJ
MR IAN MACDONALD QC AND MELANIE PLIMMER (instructed by Greater Manchester Immigration Unit) appeared on behalf of the Respondent LL
MISS JUDITH FARBEY (instructed by the Special Advocates Support Office) appeared as Special Advocate
LORD PHILLIPS, CJ :
This is the judgment of the court.
Introduction
This appeal relates to six control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 ('PTA'). They purport to be non-derogating control orders made under section 2 of the Act. On 28 June 2006 Sullivan J ruled that the obligations imposed by those orders were so severe that they amounted to deprivation of liberty contrary to Article 5 of the European Convention on Human Rights ('the Convention'). A control order that has this effect cannot be made by the Secretary of State. It can be made by the court under section 4 of the PTA provided that the specified conditions are satisfied. One of the conditions is that a designated derogation from the whole or a part of Article 5 has been made. No such derogation has been made. Accordingly Sullivan J ruled that the Secretary of State had had no power to make the orders and quashed them. He stayed the effect of his order for seven days and this court extended that stay, pending the outcome of this appeal. This made it particularly desirable to give our judgment swiftly, and for that reason this judgment will be short.
Sullivan J's judgment has neutral citation reference [2006] EWHC 1623 (Admin) and reference should be made to that judgment for the facts of this case, the relevant statutory provisions and the judge's reasoning. A short summary follows.
Each of the respondents is a single man. Five are Iraqi nationals who have claimed asylum. They were arrested under the Terrorism Act 2000, released without charge, and then re-detained under immigration powers on notice of intention to deport on national security grounds. There is a dispute as to the identity of the sixth, LL, and as to whether he is an Iranian or an Iraqi national. He too was detained pending deportation on national security grounds. All deportation proceedings were discontinued on the making of the control orders.
The obligations imposed by the control orders are set out in Annex 1 to Sullivan J's judgment. They are essentially identical. Each respondent is required to remain within his 'residence' at all times, save for a period of 6 hours between 10 am and 4 pm. In the case of GG the specified residence is a one bedroom flat provided by the local authority in which he lived before his detention. In the case of the other five applicants the specified residences are one bedroom flats provided by NASS. During the curfew period the respondents are confined in their small flats and are not even allowed into the common parts of the buildings in which these flats are situated. Visitors must be authorised by the Home Office, to which name, address, date of birth and photographic identity must be supplied. The residences are subject to spot searches by the police. During the six hours when they are permitted to leave their residences, the respondents are confined to restricted urban areas, the largest of which is 72 square kilometres. These deliberately do not extend, save in the case of GG, to any area in which they lived before. Each area contains a mosque, a hospital, primary health care facilities, shops and entertainment and sporting facilities. The respondents are prohibited from meeting anyone by pre-arrangement who has not been given the same Home Office clearance as a visitor to the residence.
The issues
Two issues arise on this appeal. Was Sullivan J correct to hold that the obligations imposed by the control orders amount to deprivation of liberty contrary to Article 5? If so, was it appropriate to quash the orders rather than to quash or modify the obligations?
Do the orders amount to deprivation of liberty?
There is a degree of common ground between the parties:
i) The concept of 'deprivation of liberty' is autonomous.
ii) The best guidance in relation to the nature of 'deprivation of liberty' is provided by the decision of the Strasbourg Court in Guzzardi v Italy (1980) 3 EHRR 333.
iii) The difference between deprivation of liberty, contrary to Article 5, and restrictions upon liberty of movement, contrary to Article 2 to Protocol No 4, is one of degree or intensity.
Mr Sales for the Secretary of State submitted that the approach of the judge displayed five errors of principle:
i) The judge identified liberty with freedom to do as one wishes. The concept is much narrower than that.
ii) The judge erroneously had regard to the extent to which the obligations interfered with 'normal life'.
iii) The judge had regard to restrictions on other human rights.
iv) The judge extended the meaning of liberty beyond that identified in Guzzardi.
v) The judge concentrated excessively on the individual features of the idiosyncratic cases.
There is no merit in these attacks of principle. They reflect, we believe, the difficulties facing the Secretary of State in attempting to demonstrate that Sullivan J's judgment is unsound.
In paragraph 92 of Guzzardi the ECtHR said:
"The Court recalls that in proclaiming the 'right to liberty' paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are covered by Article 2 of Protocol No 4… In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question."
The factors which Mr Sales submitted had been wrongly, or excessively, taken into consideration by Sullivan J were peripheral to his determination that the control orders amounted to a deprivation of liberty. In accordance with Guzzardi Sullivan J placed the 'concrete situation' at the heart of his deliberation on the 'deprivation of physical liberty'. He said at paragraph 77:
"In accordance with the principles established in Guzzardi I have considered the cumulative impact of the obligations and therefore the extent to which they restrict the respondents' liberty in the six hours when they are allowed out of their residences, as well as the effect of the 18 hour curfew and the obligations imposed on the respondents whilst they have to remain within their residences during that period. If I had to assess the impact of the obligations individually, I would consider that house arrest for 18 hours each day, even if it was the only obligation (apart from obligations such as reporting and tagging to ensure that it was strictly observed) would be more realistically described as deprivation of liberty, and not as a restriction on liberty, if it prevented the individual from pursuing a normal "in at home/out at work" life cycle."
Clearly, and correctly, Sullivan J took as his starting point the physical restriction that confined each respondent to a small flat for eighteen hours a day. Such a restriction makes most serious inroads on liberty, even giving that word its most narrow meaning. But Guzzardi also required Sullivan J to weigh in the balance other material factors. We turn to consider whether, as Mr Sales suggested, the other factors that he weighed in the balance were not material.
Mr Sales criticised Sullivan J for...
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