Secretary of State for the Home Department v E
| Jurisdiction | England & Wales |
| Judge | LORD CARSWELL,LORD HOFFMANN,LORD BINGHAM OF CORNHILL,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 31 October 2007 |
| Neutral Citation | [2007] UKHL 47 |
| Date | 31 October 2007 |
| Court | House of Lords |
[2007] UKHL 47
HOUSE OF LORDS
Appellate Committee
Lord Bingham of Cornhill
Lord Hoffmann
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
and another
Appellants:
Ben Emmerson QC
Raza Husain
Helen Law
(Instructed by Birnberg Peirce & Partners)
Respondents:
Ian Burnett QC
Philip Sales QC
Tim Eicke
Cecilia Ivimy
Andrew O'Connor
(Instructed by Treasury Solicitor)
Intervener
National Council for Civil Liberties
David Pannick QC and Alex Bailin
(Instructed by Liberty)
Special Advocates
Michael Supperstone QC and Judith Farbey
(Instructed by Special Advocates' Support Office)
My Lords,
The effective appellant in this appeal is E, who challenges a non-derogating control order made against him on 12 March 2005 under the Prevention of Terrorism Act 2005. The order has since been varied on occasion but has been renewed and remains substantially in force. E challenges the order on two main grounds pertinent to this appeal: that the effect of the order is to deprive him of his liberty in breach of article 5 of the European Convention on Human Rights; and that the Secretary of State has breached his statutory duty in relation to consideration of criminal prosecution. These contentions succeeded at first instance before Beatson J, who quashed the order: [2007] EWHC 233 (Admin), [2007] HRLR 472. The Court of Appeal (Pill, Wall and Maurice Kay LJJ) allowed on appeal by the Secretary for State and set aside the judge's order: [2007] EWCA Civ 459, [2007] 3 WLR 1.
In Secretary of State for the Home Department v JJ and others [2007] UKHL 45, paras 6 to 11, I have given a general summary of the main provisions of the 2005 Act. I would refer to, but need not repeat, that summary.
E was born in Tunis on 24 July 1963. He arrived in the United Kingdom in 1994 and applied for asylum. That application was refused but he was granted exceptional leave to remain until 2005. He is married to S, who is some years younger and of Jordanian nationality. They have five children under the age of nine. S has been joined as a party to these proceedings, but she raises no separate issue which remains live for decision.
In December 2001 E was certified by the Secretary of State under section 21 of the Anti-terrorism, Crime and Security Act 2001. He was detained in HMP Belmarsh until his release on bail on 10 March 2005 on conditions similar to those of the control order made two days later. There is evidence, accepted by the judge, that since his detention in 2001 E's mental health has deteriorated and he now suffers from a depressive illness of some severity. The hearing before Beatson J was both a supervisory hearing under section 3 of the 2005 Act in relation to the making of the order and a hearing of E's appeal against the renewal of the order. The issues were essentially the same.
It was necessary for the judge to consider whether, on the material before him, the Secretary of State's decisions under section 2(1)(a) and (b) of the 2005 Act (reasonable grounds for suspecting involvement in terrorism and consideration of necessity to impose obligations for the protection of the public) were flawed. He held that they were not, being satisfied (para 82 of his judgment) that the low threshold of reasonable suspicion was crossed by a substantial margin on the basis of the open material alone. This conclusion makes it unnecessary to address, in this case, the question whether reliance on material not disclosed to the controlled person, is compatible with article 6(1) of the Convention, a question discussed in paragraphs 25 to 35 of my opinion in MB and AF [2007] UKHL 46.
Deprivation of liberty
The obligations imposed on E by the control order made on 12 March 2005 and since renewed contains a number of obligations similar to those noted in JJ and others. Thus, for example, he must wear an electronic tag; he must reside at a specified address; he must report to a monitoring company each day on first leaving his residence and on his last return to it; the permission of the Home Office is required in advance (with name, address, date of birth and photographic evidence of identity supplied) for most visitors to the residence; he must obtain the agreement of the Home Office in advance to attend most pre-arranged meetings outside his residence; his residence is liable to be searched by the police at any time; and he is permitted to have no communications equipment of any kind save for one fixed telephone line and one or more computers, provided any computer is disabled from connecting to the internet.
The obligations imposed on E do, however, differ from those imposed on JJ and others in respects accepted by the courts below as material. The curfew to which he is subject is of twelve hours' duration, from 7.0 p.m. to 7.0 a.m., not eighteen hours. The residence specified in the order is his own home, where he had lived for some years, in a part of London with which he is familiar. By a variation of the order his residence is defined to include his garden, to which he thus has access at any time. He lives at his home with his wife and family, and Home Office permission is not required in advance to receive visitors under the age of ten. Five members of his wider family live in the area, and have been approved as visitors. He is subject to no geographical restriction during non-curfew hours, is free to attend a mosque of his choice, and is not prohibited from associating with named individuals. The judge found (para 231) that E does not lack a social network, goes to the mosque, takes his older children to school, picks them up, goes shopping and sees family members who live in the area.
Both the courts below reviewed the Strasbourg authority on article 5 and deprivation of liberty. I have endeavoured to summarise the effect of this authority in JJ and others, paras 12 to 19. I would refer to but need not repeat that summary.
Beatson J gave a lengthy and very careful judgment resolving a number of questions which are no longer germane to this appeal. He concluded (para 231) that very limited weight could be given to E's mental condition in the context of article 5. He regarded the order as likely to be renewed (para 233) for successive twelve month periods. He concluded (para 235) that E was "significantly less socially isolated that the controlled persons in the JJ cases". But he thought it of particular importance (para 238) that there was the same control over visitors to the home and meetings outside the home, and the same liability to spot checks and searches by the police at any time. It was these features which made the obligations particularly intense (para 240), somewhat as if he were accommodated in prison. The judge recognised (para 242) the case as more finely balanced than the JJ cases, but concluded that the cumulative effect of the restrictions was to deprive E of his liberty in breach of article 5 of the Convention.
The Court of Appeal (para 62) treated physical liberty as the starting point and the central issue, and judged (para 63) that the degree of physical restraint on E's liberty was far from a deprivation of liberty in article 5 terms. It discounted (para 64) the judge's analogy with prison accommodation and also (para 65) the deterrent effect of the requirement that visitors be approved in advance. It noted (para 69) the distinctions between the restrictions in this case and those in JJ, and concluded that this case was plainly distinguishable.
As noted in JJ, para 11, an appeal lies from the court of first instance in control order proceedings only on a point of law. This is a provision of some importance, since the legislation does not permit each successive court in the curial hierarchy to make its own independent evaluation. This is not a point which the Court of Appeal in this case specifically addressed. But it must, I think, be inferred that the Court of Appeal found the judge to have erred in law in failing to focus on the extent to which E was actually confined, here an overnight curfew of twelve hours, a period accepted by the Strasbourg authorities, as compared with the very much more stringent restriction in JJ. The matters which particularly weighed with the judge were not irrelevant, but they could not of themselves effect a deprivation of liberty if the core element of confinement, to which other restrictions (important as they may be in some cases) are ancillary, is insufficiently stringent. This is in my opinion a sound criticism of the judge's approach, and the Court of Appeal was right to regard this case, on its special facts, as distinguishable from JJ.
I would dismiss E's appeal on this point.
Prosecution
Section 8 of the 2005 Act, so far as material for present purposes, provides:
"8 Criminal investigations after making of control order
(1) This section applies where it appears to the Secretary of State-
(a) that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism; and
(b) that the commission of that offence is being or would fall to be investigated by a police force.
(2) Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism.
(3) If a control order is made against the individual the Secretary of State must inform the chief officer of the police force that the control order has been made and that...
To continue reading
Request your trial
-
Secretary of State for the Home Department v LG and Others
...can be taken, still less that is it a condition that there should be no realistic prospect of a successful prosecution – see SSHD v E [2008] 1 AC 499 at [15]–[16]. In those circumstances, I agree with Ms McGahey that I cannot infer from the absence of a prosecution that any of the actions a......
-
United Kingdom (Secretary of State for the Home Department) v. M.B., [2007] N.R. Uned. 183 (HL)
...(4), as do JUSTICE and Liberty (although Liberty intervene only in the case of Secretary of State for the Home Department v. E and S [2007] UKHL 47). [4] The terms of these issues, particularly issues (1) and (2), have direct reference to the terms of the 2005 Act. I would make reference to......
-
Secretary of State for the Home Department v AF (No 2)
...Justice Act 1969. The House gave judgment on 31 October 2007 in AF's and other cases, reported as [2007] UKHL 45, [2007] UKHL 46 and [2007] UKHL 47. The House reversed Ouseley J's decision on the issue whether control order PTA/33/2006 deprived AF of his liberty, and remitted his case to......
-
Mucelli v Albania
...country. This is in line with the approach adopted by this House in Saber v Secretary of State for the Home Department 2003 SLT 1409; [2007] UKHL 47 (unreported). The appellant had sought asylum on the basis of the situation in Iraq. By the time the appeal reached the Second Division of the......
-
Covert derogations and judicial deference: redefining liberty and due process rights in counterterrorism law and beyond.
...court, not the Home Secretary (ibid, s 1(2)(b)). (72) JJ, supra note 35; Secretary of State for the Home Department v E, [2007] UKHL 47, [2008] 1 AC 499 [E]; Secretary of State for the Home Department v MB and AF, [2007] UKHL 46, [2008] 1 AC 440 [MB & AF]; Secretary of State for the Hom......
-
Navigating the Boundaries of Prevention: The Role of Opcat in Deportations with Diplomatic Assurances
...UK House of Lords, Home Oce v s E and another, [2007] UKH L 47 (31 October 2007), [2008] 1 AC 499, (2007) 151 SJLB 1433, [2008] HRLR 7, [2007] UKHL 47, [2008] 1 All ER 699, [2008] Cr im LR 486, [2008] UK HRR 69, (2007) 157 NLJ 1578, [2007] 3 WLR 720.64 Walker, C., ‘e treat ment of foreign......
-
Terrorism Prevention and Investigation Measures: Constitutional Evolution, Not Revolution?
...the control order decisions of Secretaryof State for the Home Department vJJ [2007] UKHL 45; Secretary of State for the HomeDepartment vE [2007] UKHL 47; and Secretary of State for the Home Department vAP[2010] UKSC 24. In relation to fair trial issues, see Secretary of State for the HomeDe......
-
Designing ETPIMs around ECHR Review or Normalisation of ‘Preventive’ Non‐Trial‐Based Executive Measures?
...found to be a necessary and proportionate measureto protect the public.125 Where particular social isolation might arise, it has been117 [2007] 3 WLR 720.118 ibid at [11].119 [2007] 3 WLR 681: the Lords unanimously found that there was no deprivation of liberty inrespect of 14 hours detenti......