Human rights—Right to liberty—Control order

House of Lords
Lord Bingham, Lord Hoffmann, Baroness Hale, Lord Carswell and Lord Brown
31 October 2007

In deciding whether or not a person has been deprived of his liberty in violation of the European Convention on Human Rights (the Convention), Art 5, it is necessary to assess the impact of the measures in question on a person in the situation of the person subject to them. Account has to be taken of a range of factors such as the nature, duration, effects and manner of execution or implementation of the penalty or measure in question. Control orders may not be incompatible per se with Art 5.

Ian Burnett QC, Philip Sales QC, Tim Eicke, Cecilia Ivimy and Andrew O’Connor (instructed by the Treasury Solicitor) for the secretary of state.
Manjit Gill QC and Barnabas Lams (instructed by Lawrence & Co) for JJ.
Ben Emmerson QC and Raza Husain (instructed by Gladstone Solicitors) for GG and KK.
Edward Fitzgerald QC, Keir Starmer QC and Stephanie Harrison (instructed by Tyndallwoods) for HH and NN.
Michael Fordham QC and Tom Hickman (instructed by Clifford Chance) for JUSTICE as intervener.

The six claimants were all subject to control orders made by the secretary of state under the Prevention of Terrorism Act 2005 (PTA 2005). All were suspected by the secretary of state to have been involved in terrorism-related activities and were assessed to pose a threat to the public within the UK or overseas. None had been charged with or prosecuted for any offence relating to terrorism. The orders required each claimant to remain within his “residence” at all times, save for a period of six hours. In each case the residence was a one bedroom flat. Visitors had to be authorised by the Home Office.

The residences were subject to spot searches by the police. During the six hours of leave, the claimants were confined to restricted urban areas, the largest of which was 72 square kilometres. They did not extend to any area in which they lived before (save in the case of one claimant). Each area contained a mosque, a hospital, primary healthcare facilities, shops and entertainment and sporting facilities. The claimants were prohibited from meeting anyone by pre-arrangement who had not been given the same Home Office clearance as a visitor to the residence.  Each applied to challenge the orders as incompatible with Art 5 of the Convention. The High Court held that the orders did deprive the claimants of their liberty in breach of Art 5, as did the Court of Appeal. The secretary of state appealed to the House of Lords.

Lord Bingham:

Article 5 had fallen to be considered in a very wide range of factual situations. His Lordship referred to Engel v The Netherlands (No 1) (1976) 1 EHRR 647, Guzzardi v Italy (1980) 3 EHRR 533 and Ashingdane v United Kingdom (1985) 7 EHRR 528.

Strasbourg decisions had established that 24-hour house arrest was regarded as tantamount to imprisonment and so as depriving the subject of his or her liberty. But the court had made clear that deprivation of liberty might take numerous forms other than classic detention in prison or strict arrest. What had to be considered was the concrete situation of the particular. Thus the task of a court was to assess the impact of the measures in question on a person in the situation of the person subject to them.

Account had to 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. There might be no deprivation of liberty if a single feature of an individual’s situation was taken on its own but the combination of measures considered together might have that result. Because account had to be taken of an individual’s whole situation it was inappropriate to draw a sharp distinction between a period of confinement which would, and one which would not, amount to a deprivation of liberty, important though the period of daily confinement would be in any overall assessment.

The Strasbourg court had 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 was no bright line separating the two. The decision was one of pure opinion or what might, rather more aptly, be called judgment.
In assessing the impact of the measures in question on a person in the situation of the person subject to them, the court would assess the effect of the measures on the life the person would have been living otherwise.
His lordship turned to the facts of the case. The judge at first instance had concluded:

“Bearing in mind the type, duration, effects and manner of implementation of the obligations in these control orders, I am left in no doubt whatsoever that the cumulative effect of the obligations has been to deprive the respondents of their liberty in breach of Article 5 of the Convention…The collective impact of the obligations…could not sensibly be described as a mere restriction upon the respondents’ liberty of movement. In terms of the length of the curfew period (18 hours), the extent of the obligations, and their intrusive impact on the respondents’ ability to lead anything resembling a normal life, whether inside their residences within the curfew period, or for the 6-hour period outside it, these control orders go far beyond the restrictions in those cases where the European Court of Human Rights has concluded that there has been a restriction upon but not a deprivation of liberty.”

His lordship agreed with the Court of Appeal that the judge had made no error in law. He also agreed that, since the secretary of state had no power to make the order, there was nothing to revoke and that the courts could not quash one or more of the obligations or direct the secretary of state to modify them.

The appeal would therefore be dismissed.
Baroness Hale and Lord Brown delivered concurring opinions and Lord Hoffmann and Lord Carswell dissented.