AP v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Saville,Lord Walker,Lord Clarke,SIR JOHN DYSON SCJ,LORD BROWN,LORD RODGER,Lord Phillips |
| Judgment Date | 16 June 2010 |
| Neutral Citation | [2010] UKSC 24 |
| Date | 16 June 2010 |
| Court | Supreme Court |
[2010] UKSC 24
Lord Phillips, President
Lord Saville
Lord Rodger
Lord Walker
Lord Brown
Lord Clarke
Sir John Dyson SCJ
Appellant
Edward Fitzgerald QC
Kate Markus
(Instructed by Wilson Solicitors LLP)
Respondent
Robin Tam QC
Tim Eicke
Rory Dunlop
(Instructed by Treasury Solicitor)
(with whom Lord Phillips, Lord Saville, Lord Walker and Lord Clarke agree)
What does article 5 of the European Convention on Human Rights mean by deprivation of liberty in the context of control orders made under the Prevention of Terrorism Act 2005 (the 2005 Act)? This was the central question before the House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC 385 and, by a majority of three to two, it was held that "deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest; … the court's task was to consider the concrete situation of the particular individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on him in the context of the life he might otherwise have been living …." So states the head note to the report, to my mind entirely accurately. Lord Hoffmann's view, shared by Lord Carswell, that "the concept of deprivation of liberty [should be confined] to actual imprisonment or something which is for practical purposes little different from imprisonment" (para 44) did not prevail. Nevertheless, as Lord Bingham pointed out in Secretary of State for the Home Department v E [2008] 1 AC 499, 553 (para 11) – one of the two associated appeals also then before the House - what principally must be focused on is the extent to which the suspect is "actually confined": "other restrictions (important as they may be in some cases) are ancillary" and "[can] not of themselves effect a deprivation of liberty if the core element of confinement … is insufficiently stringent."
The Committee in both cases recognised that Guzzardi v Italy (1980) 3 EHRR 333 was still the leading Strasbourg authority on the question and so it remains to this day; no subsequent decision of the ECtHR casts the least doubt upon the correctness of the majority view in JJ. In the context of control orders, it therefore follows that within what has been described as the grey area between 14-hour and 18-hour curfew cases, other restrictions than mere confinement can tip the balance in deciding, as in every case the judge has to decide as a matter of judgment, whether the restrictions overall deprive the controlee of, rather than merely restrict, his liberty.
It is true that some passages in my own opinion in JJ– notably those stating (para 105) that, "[p]ermanent home confinement beyond 16 hours a day on a long-term basis necessarily to my mind involves the deprivation of physical liberty", and (para 108) that "provided the 'core element of confinement' does not exceed 16 hours a day, it is 'insufficiently stringent' as a matter of law to effect a deprivation of liberty" - suggest that (subject to any future Strasbourg ruling on the point (para 106)) a curfew up to and including 16 hours will always be permissible, a longer curfew never. The fact is, however, that neither Lord Bingham nor Lady Hale, the other members of the Committee constituting the majority, subscribed to this suggestion and, indeed, my own express acceptance of the relevance of "a whole range of criteria such as the type, duration [and] effects" of the order was hardly consistent with the curfew length being the sole criterion of loss of liberty.
I nevertheless remain of the view that for a control order with a 16-hour curfew (a fortiori one with a 14-hour curfew) to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive of the life the controlee might otherwise have been living. Mitting J suggested how that might be in Secretary of State for the Home Department v AH [2008] EWHC 1018 (Admin), in a summary of the principles emerging from JJ which Keith J adopted in his judgment in the present case: "Social isolation is a significant factor, especially if it approaches solitary confinement during curfew periods." Quite how to balance on the one hand the precise length of curfew and on the other hand the degree of social isolation involved in any particular case presents a difficulty: the two are essentially incommensurable. But that problem, the inescapable consequence of the majority view having prevailed in JJ, is not, in fact, the particular problem arising in the present appeal. Rather the issues for the Court's determination here have been formulated as follows:
"(a) Whether conditions which are proportionate restrictions upon article 8 rights can 'tip the balance' in relation to article 5, ie whether they can be taken into account in holding that a control order is a deprivation of liberty when, absent those restrictions, it would not have been held to be such.
(b) Whether the judge can take into account subjective and/or person-specific factors, such as the particular difficulties of the subject's family in visiting him in a particular location, when considering whether or not a control order amounts to a deprivation of liberty.
(c) Whether it was permissible for the Court of Appeal to interfere with the first instance judgment on the ground that the judge had relied on findings of fact in respect of article 5 which were inconsistent with his findings of fact in respect of article 8."
With those few introductory paragraphs let me turn to the facts of the present appeal although not in any great detail. Where, as here, no appeal lies from the judge at first instance "except on a question of law" (section 11(3) of the 2005 Act), it is seldom necessary to explore the facts in detail. Still less is that necessary where not only are the few nominated judges who hear control order appeals properly to be regarded as expert tribunals in this difficult and sensitive field (and so not readily open to challenge – see the judgment of Lord Phillips at para 118 and that of Lord Hope at paras 218-219, in RB (Algeria) v Secretary of State for the Home Department [2009] 2 WLR 512) but (rather like SIAC in the context of expulsion cases) they are "vested with particular powers and procedures – above all the use of closed material under the special advocate scheme – which make [their] determinations peculiarly inappropriate for further factual reappraisal and appeal" (para 253 of my judgment in RB (Algeria)). This very case was the subject of a six-day hearing before Keith J. Anyone interested in its detailed facts will find them in his open judgment [2008] EWHC 2001 (Admin); his closed judgment is not, of course, in the public domain.
Put shortly the facts are these. The appellant (AP) is an Ethiopian national. He came to this country with other members of his family in 1992 at the age of 14. On 6 October 1999 he, his siblings and their mother were granted indefinite leave to remain. In May 2005 he travelled to Somalia and then Ethiopia. On 22 December 2006, upon his detention by the authorities in Ethiopia, the Secretary of State decided to exclude him from the UK: he was by then suspected of involvement in terrorism.
On AP's return to the UK on 28 December 2006 he was duly refused leave to enter and, pending removal, detained under immigration powers until July 2007 when he was released on bail under stringent conditions. The Secretary of State, however, withdrew her decision to exclude AP from the UK when, on 10 January 2008, she was granted permission to make a control order against him. The control order subjected AP to a 16-hour curfew and electronic tagging, together with a number of other restrictions on association and communication such as are usually imposed in these cases, and at first required AP to live at an address in Tottenham, North London. AP's family, friends and associates had always lived in the London area. Subsequently, on 21 April 2008, the Secretary of State modified the terms of the control order, requiring AP to move to an address in a Midlands town some 150 miles away. It was that modification and AP's appeal against it which has given rise to these proceedings. Even when the matter was before the Court of Appeal there was no dispute about the need for a control order, only about its terms.
On 12 August 2008 Keith J allowed AP's appeal against the modification and, pursuant to section 10(7)(b) of the 2005 Act, quashed the obligation to live in the Midlands – [2008] EWHC 2001 (Admin). On 15 July 2009 the Court of Appeal (Wall and Maurice Kay LJJ, Carnwath LJ dissenting) allowed the Secretary of State's appeal against Keith J's determination – [2009] EWCA Civ 731. As it happens, the appeal was by then academic. Not only had the Secretary of State, on the very day after Keith J's order, served a modified control order on AP reducing his curfew from 16 to 14 hours albeit maintaining the obligation to reside in the Midlands but, on 2 July 2009, she had actually revoked the control order having in the meantime decided once again that AP should be deported on national security grounds and until then detained under immigration powers. In fact, since 20 July 2009, AP has been on bail pending deportation on conditions, including residence in the Midlands, similar to those of the control order save that the curfew period is now 18 hours. Whilst, however, the outcome of the appeal is no longer relevant for AP himself, the points it raises are said to be of some general importance with regard to control orders. This further appeal is brought by leave of the Supreme Court granted on 4 March...
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