JUDGMENT
Secretary of State for the Home Department
(Respondent) v AP (Appellant)
before
Lord Phillips, President
Lord Saville
Lord Rodger
Lord Walker
Lord Brown
Lord Clarke
Sir John Dyson SCJ
JUDGMENT GIVEN ON
16 June 2010
Heard on 5 May 2010
Appellant Respondent
Edward Fitzgerald QC Robin Tam QC
Kate Markus Tim Eicke
Rory Dunlop
(Instructed by Wilson
Solicitors LLP )
(Instructed by Treasury
Solicitor)
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LORD BROWN: (with whom Lord Phillips, Lord Saville, Lord Walker and
Lord Clarke agree)
1. 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.”
2. 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.
3. 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 longterm 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
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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.
4. 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.”
5. 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
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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.
6. 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.
7. 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.
8. 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
Page 5
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 2010.
9. Such additional facts as are material to the issues now arising appear from
the following critical paragraphs in Keith J’s determination (quoted also by the
Court of Appeal):
“86. The justification for relocating him outside London was to make
it more difficult for him to see his extremist associates . . . Given that
there has been a concentration of Islamist extremists in London,
there is a need to remove AP from that milieu.
87. This justification has to be balanced against the incontestable
hardship for AP in being isolated from his mother and his brother.
His evidence was that while he was in Tottenham, they would visit
him about twice a week, and that every week he would see his
sister’s three children who he would take to the park. His move has
had a profound impact on how often he sees them. His mother has
not visited him at all, and his brother has visited him just the twice.
That is just as upsetting for his mother as it is for him, because at
present she needs AP around more than ever. That is compounded by
the fact that he does not know anyone in the town where he now
lives, and sometimes speaks to no one in the course of the day other
than short calls to his solicitors or to his mother and his brother.
88. It is true that the town where he now lives is not that far from
London. The journey by rail takes about 1¾ hours, and trains travel
every half hour or so. It is also true that there is no limit on the
length of time AP’s mother and brother can spend with him if they
choose to visit him, and there is . . . no need for them to seek prior
Home Office approval. But the practical difficulties of visiting him
are not inconsiderable, bearing in mind that his mother now looks
after his sister’s three young children. She cannot go to the town
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where AP now lives on those days when she has to take the children
to, or collect them from, school, and if she was to go to that town,
she would have to take the children with her. It is said that she
cannot go to that town without AP’s brother, because she has never
left London alone. The only day of the week he could go when the
children are not at school would be on Sundays. But these practical
difficulties are not insuperable. The fact is that they could visit AP
en famille on Sundays, as well as on other days of the week outside
the school terms, and they could travel at off-peak times to get the
advantage of lower fares.
89. Having said that, there is unquestionably another significant
hardship for AP in having to live in the town where he now lives. It
is difficult for him to feel part of the local community. He claims that
the local Muslim population comes for the most part from Bengal
and Pakistan. They are a close-knit and closed culture. No one in the
mosque has welcomed him into the community, or asked him how he
finds the area or even what his name is. The Imam shows no interest
in him, though that may be the product of language differences. The
mosque has simply become a place to pray. It has not become either
the spiritual or social focus of his life. He has spotted the occasional
Ethiopian or Eritrean, but he has not tried to befriend them because
he does not want to burden them with his problems. He goes to the
gym, but people there see his tag and naturally think that he is a
criminal. Although he has tried to explain what a control order is,
that tends to make things worse. All in all, these experiences merely
serve to reinforce his sense of alienation.
93. At the end of the day, the issue boils down simply to a matter of
judgment. Moving him out of London altogether is the most
effective way of reducing the chances of him maintaining personal
contact with those of his associates in London who are or may be
Islamist extremists. Giving due, but not undue, deference to the view
of the Secretary of State on the topic, my opinion is that, but for the
view I have reached on the impact of article 5 of the Convention, the
need to ensure that AP does not maintain personal contact with those
of his associates in London who are or may be Islamist extremists
would have made it necessary, in order to prevent or restrict his
involvement in terrorism-related activity, for him to be removed
from London altogether. Balancing that need against the undoubted
hardship which AP experiences as a result of having to live in the
town where he now lives, the view I would have reached is that the
move was not a disproportionate response to that need.
Page 7
95. . . . although the paradigm examples of deprivation of liberty are
detention in prison and house arrest, deprivation of liberty can take
many other forms, and the court’s function is to look at the package
of measures as a whole . . . a sense of social isolation would be felt
particularly acutely where the controlled person was required to live
in an area unfamiliar to him in which he had no family, friends or
contacts. If he was cut off from his old haunts and acquaintances, his
ability to lead any kind of normal life during non-curfew hours as
well as curfew ones would be affected . . . I would characterise it as a
form of internal exile . . .
97. It is the combination of the equivalent of house arrest up to the
maximum period identified by Lord Brown [viz 16 hours], and the
equivalent of internal exile which makes AP so socially isolated
during the relatively few hours in the day when he is not under house
arrest, coupled with his inability to make even social arrangements
because pre-arranged meetings (otherwise than with his mother and
his brother) are prohibited, which lead me to conclude that the
obligations imposed on him fall on the side of the line which
involves the deprivation of liberty rather than the restriction of
movement . . . [Had] he remained in London, so that he could still
see and be visited by his mother, his brother and his sister’s three
children, my view would have been different.”
10. In summary, Keith J rejected AP’s case under article 8 on the ground that
the interference with his family life was justified and proportionate in the interests
of national security but decided that the overall effect of a 16-hour curfew and
AP’s social isolation (particularly through his being separated from his family)
constituted an article 5 deprivation of liberty. As Maurice Kay LJ was later to note,
“the element of social isolation . . . is rather greater in the present case than in the
JJ cases, where the relocations were within or close to London.” But for the
difficulties of the family visiting AP in the Midlands, the judge made plain, he
would not have found that the control order involved a deprivation of liberty.
11. Maurice Kay LJ, giving the leading judgment in the Court of Appeal, held
Keith J to have been “wrong in law to permit the issue of family visits to tip the
balance. . . . [H]e was wrong . . . to allow the failed article 8 case to prove decisive
in the article 5 case” (para 32). Wall LJ agreed with that and (para 37) described it
as “the contradiction at the heart of the judgment”. Whilst recognising (para 38)
that it was established law that a restriction relevant to an article 8 claim, even if
not such as to establish a breach of that article, may be relevant to a claimed
breach of article 5, he nevertheless concluded (para 39):
Page 8
“There is, in my judgment, a substantial difference between taking
article 8(1) factors into account when discussing article 5 on the one
hand, and, on the other, of treating them as determinative of, or, as
Maurice Kay LJ puts it, as ‘tipping the balance’ in relation to an
article 5 determination. In my judgment, the judge has done the
latter, and it is principally for this reason that I find myself in
respectful disagreement with him.”
12. It is these holdings of the majority which give rise to the first of the issues
now identified for decision (para 4(a) above) and with the best will in the world
the answer to it is surely an obvious “yes”. If an article 8 restriction is a relevant
consideration in determining whether a control order breaches article 5, then by
definition it is capable of being a decisive factor – capable of tipping the balance.
The weight to be given to a relevant consideration is, of course, always a question
of fact and entirely a matter for the decision-maker – subject only to a challenge
for irrationality which neither has nor could have been advanced here. All this is
trite law and indeed the contrary was not argued before us.
13. Issue 2 asks 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”. Oddly, this was not a question addressed by the Court of Appeal
although it had been touched on in the Secretary of State’s grounds of appeal
before them. As I understand Mr Tam QC’s submission for the Secretary of State,
it is that in assessing the weight to be given to the restrictive effects of a condition
such as that imposed on AP here to reside in the Midlands, the judge should ignore
everything that depends on the individual circumstances of the family – for
example, on the facts of this case, that AP’s mother has never left London alone
and that during term time, because of the children, Sunday is the only day the
family can travel. Any health problems suffered by the family (“frailty” to use Mr
Tam’s word) must be ignored; so too poverty. If a differently organised and
wealthier family could readily have visited, runs the argument, it cannot avail the
controlee that his own particular family could not.
14. Mr Tam sought to find support for this argument in the judgments of the
majority in JJ – such as Lord Bingham’s statement (para 15) that the Court’s task
“is to assess the impact of the measures in question on a person in the situation of
the person subject to them”. The point Lord Bingham was making there, however,
as the immediately following citation from Engel v The Netherlands (No 1) (1976)
1 EHRR 647 showed, was that certain people – in Engel’s case soldiers – are in an
inherently different situation from others:
“A disciplinary penalty or measure which on analysis would
unquestionably be deemed a deprivation of liberty were it to be
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applied to a civilian may not possess this characteristic when
imposed upon a serviceman.”
That passage says nothing about ignoring the controlee’s or his family’s individual
circumstances and, indeed, Lord Bingham earlier in the paragraph had stated that
“what has to be considered is the concrete situation of the particular individual”.
15. There is nothing in the Secretary of State’s argument. By the same token
that it is relevant that, whilst AP must live in the Midlands, his family are in
London, so too it is relevant whether their circumstances are such that their
distance away so disrupts contact between them as to cause or substantially
contribute to AP’s social isolation. Plainly the family could not be allowed to
thwart what would otherwise be an appropriate residential requirement by
unreasonably failing to take the opportunities open to them to visit AP and so save
him from social isolation. The correct analysis, however, is that in those
circumstances it would be the family’s unreasonable conduct and not the residence
condition which was the operative cause of AP’s isolation. In short, the judge must
disregard not “the particular difficulties of the subject’s family in visiting him” but
rather any lack of contact resulting from the family’s unreasonable failure to
overcome these difficulties in order to visit him. It is not suggested here that the
family behaved unreasonably in failing to overcome more effectively the practical
difficulties they faced in visiting AP on a more regular basis, only that their
particular difficulties should have been ignored. That submission cannot be
accepted.
16. The third and final issue for our determination arises from the apparent
conclusion of the majority in the Court of Appeal that Keith J had committed a
second error of law in making inconsistent findings of fact. Maurice Kay LJ (para
30) contrasted the judge’s finding (para 88) that –
“The fact is that they could visit AP en famille on Sundays, as well
as on other days of the week outside the school terms, and they could
travel at off-peak times to get the advantage of lower fares.”
– with his conclusion (para 97) that –
“. . . had [AP] remained in London, so that he could still see and be
visited by his mother, his brother and his sister’s three children, my
view would have been different.”
Page 10
– and in the result held: “On that basis, the judge erred in law in
treating as decisive something that was at variance with his earlier
finding of fact.”
17. Wall LJ expressly agreed with all of Maurice Kay LJ’s reasoning.
18. For my part, however, I see no contradiction between the quoted two
paragraphs from Keith J’s judgment. Of course, as Maurice Kay LJ pointed out,
“AP could [original emphasis] still see and be visited by those members of his
family, although there were logistical and, no doubt, financial difficulties.” But to
suggest that this is inconsistent with paragraph 97 of Keith J’s judgment is to my
mind to place altogether too much weight upon the word “could” in the latter
paragraph. To understand paragraph 97 as suggesting that, now that AP had left
London, it was impossible for him to see and be visited by his family, is not to
give it a fair reading. It is hardly to be thought that by paragraph 97 the judge had
forgotten what he had said in paragraph 88. The former must be understood as
merely encapsulating in shorthand the judge’s findings as to the practical
difficulties in visiting which he had made in paragraph 88.
19. It follows that all three issues fall to be determined in the appellant’s favour
and that his appeal succeeds. Carnwath LJ was in my opinion right in his analysis
of the House of Lords judgments in JJ and the other two associated cases, right as
to how they applied to the present case, and right also to emphasise (as, indeed,
Wall LJ had done) the importance of respecting the decisions of the judges in the
Administrative Court dealing with these difficult cases. They have developed, as
he put it, “special expertise and experience, not generally shared by members of
the Appellate Courts” and “are also much better placed to develop consistent
practice for dealing with orders of this kind, and to provide continuing supervision
of their making, variation, and implementation”.
20. We were shown a series of first instance decisions in control order cases
following the JJ trilogy: Secretary of State for the Home Department v AH [2008]
EWHC 1018 (Admin) (where Mitting J “just” upheld a 14-hour curfew
notwithstanding that AH was required to reside in a wholly unfamiliar city and
was subject to a high degree of social isolation); Keith J’s determination in the
present case; Secretary of State for the Home Department v AU [2009] EWHC 49
(Admin) (where Mitting J upheld a 16-hour curfew albeit indicating that he would
have reached the same conclusion as Keith J on the facts of the present case); and
Secretary of State for the Home Department v GG [2009] EWHC 142 (Admin)
(where Collins J upheld a 16-hour curfew where a relocation from Derby to
Chesterfield presented no difficulties for family visits). It would be inappropriate
to discuss here the detailed reasoning in each of these determinations; suffice it to
say that they seem to me to justify Carnwath LJ’s confidence in the nominated
Page 11
Administrative Court judges and the wisdom of generally not interfering with their
decisions in control order cases.
21. I would allow this appeal, set aside the decision of the Court of Appeal and
restore the order of Keith J at first instance.
22. At the start of the hearing the court raised the question of whether to
maintain the respondent’s anonymity in this case. Following the hearing written
submissions on this question were made by the parties. The court has considered
these and decided that there are good reasons for preserving the respondent’s
anonymity. These will be the subject of a further judgment of the court.
LORD RODGER
23. Given the rejection of Lord Hoffmann’s approach by the majority of the
House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC
385, the question whether someone has been deprived of his liberty for the
purposes of article 5 depends on the evaluation of a host of different factors. Keith
J carried out the exercise of weighing these factors. For the reasons given by Lord
Brown, I am satisfied that there was no proper basis for the majority of the Court
of Appeal interfering with his conclusion. I also agree with Sir John Dyson that the
Secretary of State’s argument, supposedly based on Shtukaturov v Russia
(Application No 4409/05), 27 March 2008, is without foundation. I would
accordingly allow the appeal.
SIR JOHN DYSON SCJ
24. I agree that this appeal should be allowed for the reasons given by Lord
Brown. I only wish to add a few words on the second issue identified at para 4.
25. As Lord Brown has said, the court’s task is to consider the “concrete
situation of the particular individual” taking account of “a whole range of criteria
such as the type, duration, effects and manner of implementation of the measure in
question”: see Guzzardi at para 92 and, for example, paras 15 and 18 of Lord
Bingham’s speech in JJ.
26. Mr Tam submits that the reference to an individual’s “concrete situation” is
a reference to those factors which are the “necessary consequences of the measures
Page 12
concerned, rather than factors which may or may not be present depending on the
individual’s personality or choices, or on the personality or choices of his family or
friends” (Case for the Secretary of State at para 9.6). What is required is an
“objective” and not a “subjective” approach when one considers the effects or
impact of the measures on the individual. It is the objective impact of the measures
on a person in the situation of the controlee that is relevant, not the consequences
of his subjective response or that of his family and friends. In support of his
submissions he relies on the decision of the ECtHR in Shtukaturov v Russia
(Application No 44009/05), 27 March 2008.
27. I can find no support for Mr Tam’s approach in the jurisprudence.
Shtukaturov does not provide it. In that case, the applicant was placed in a locked
facility, tied to his bed, given sedative medication and not permitted to
communicate with the outside world. Consent was relevant because it could have
prevented those measures from being a deprivation of liberty within the meaning
of article 5 of the Convention. At para 106, the ECtHR said:
“The Court further recalls that the notion of deprivation of liberty
within the meaning of article 5.1 does not only comprise the
objective element of a person’s confinement in a particular restricted
space for a not negligible length of time. A person can only be
considered to have been deprived of his liberty if, as an additional
subjective element, he has not validly consented to the confinement
in question (see, mutatis mutandis, HM v Switzerland, no 39187/98,
para 46, ECHR 2002-II).”
28. In this paragraph, the court was not saying that no “subjective” elements
other than lack of consent could be relevant. Indeed, it is clear from Guzzardi and
JJ that the objective element of a person’s confinement may not be enough to give
rise to a deprivation of liberty within the meaning of article 5.1. The other
elements, when considered in conjunction with the confinement, may make all the
difference. In Shtukaturov, absent consent, the core element of confinement was
sufficient to establish a breach of article 5.1.
29. I do not find it helpful to use the subjective/objective terminology in the
present context. Take this case. AP’s mother chose to look after her daughter’s
young children. Practically speaking, she was faced with the choice of not visiting
AP or of taking the children on her visits. She chose not to visit AP at all. No
doubt, that was a difficult choice for her to make. In a sense, it was a “subjective”
decision as are all choices. But that does not mean that the isolating effect of the
choice made by AP’s mother is to be disregarded when an assessment is made of
the effect on AP of the modification of the control order. The focus of the article 5
inquiry is on the actual effect of the measures on the controlee in the circumstances
Page 13
in which he finds himself. Prima facie, the actual isolating effect resulting from
choices made by the controlee, his family and friends in response to the measures
should be taken into account. But I agree with Lord Brown that isolation
attributable to unreasonable conduct on the part of the controlee or his family or
friends should be disregarded because unreasonable conduct cannot be said to be
caused by the measures. To use the language of Guzzardi, in such a case the
measures do not have the isolating effect on the controlee.
30. In further support of his argument, Mr Tam submits that, if the question of
whether or not a measure constitutes a deprivation of liberty turned on the effect of
personal choices, the answer to the question would vary unpredictably and would
turn on matters outside the control and knowledge of the Secretary of State at the
time of imposing the control order, such as what child care arrangements the
family members of an individual subject to a control order might prefer or how
those family members might feel about travelling outside their home area.
31. But the Secretary of State must always seek to find out what the likely
effect will be of the control order (or the modification) that she is proposing to
make. She cannot make or modify control orders without considering their effect.
It is now clearly established that in a case where the confinement is not sufficiently
long of itself to amount to a deprivation of liberty, an assessment of the effect of
the measures on the controlee may be decisive. If the Secretary of State fails to
ascertain what the effect of an order will be, she runs the risk that there will be
breach of article 5.1. This is the price that she must pay if she wishes to impose a
control order. In some cases, there may be practical difficulties in finding out in
advance what the effect of an order (or modification of an order) is likely to be.
But that is not a good reason for saying that the Secretary of State is free to make
an order without regard to its effect on the controlee.
32. To return to the facts of the present case, it is not suggested that AP or his
family have behaved unreasonably. It follows that the judge was right to take into
account the isolating effect, in particular, of the lack of contact between AP and his
mother.
33. For these reasons, as well as those given by Lord Brown, I would allow the
appeal.
Trinity Term
[2010] UKSC 26
On appeal from: [2009] EWCA Civ 731
JUDGMENT
Secretary of State for the Home Department
(Respondent) v AP (Appellant) (No. 2)
before
Lord Phillips, President
Lord Saville
Lord Rodger
Lord Walker
Lord Brown
Lord Clarke
Sir John Dyson SCJ
JUDGMENT GIVEN ON
23 June 2010
Heard on 5 May 2010
Appellant Respondent
Edward Fitzgerald QC Robin Tam QC
Kate Markus Tim Eicke
Rory Dunlop
(Instructed by Wilson
Solicitors LLP)
(Instructed by Treasury
Solicitor)
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LORD RODGER (with whom all members of the court agree)
1. On 16 June 2010 the Court gave judgment in Secretary of State for the
Home Department v AP [2010] UKSC 24. As Lord Brown explained, the appeal
concerned a control order imposed on AP under the Prevention of Terrorism Act
2005. In April 2008 the Secretary of State had modified the order to include a
condition that AP, who had previously lived in London, should now live in a town
some 150 miles away. In August 2008 Keith J quashed the residence requirement
and the following day the Secretary of State served a modified control order in
similar terms, except that the curfew had been reduced to 14 hours. By a majority,
the Court of Appeal allowed the Secretary of State’s appeal against Keith J’s order.
In its judgment of 16 June, this Court allowed AP’s appeal and restored the order
of Keith J quashing the residence requirement.
2. In fact, as Lord Brown also explained, the appeal was academic, so far as
AP himself was concerned, since on 2 July 2009 the Secretary of State had
revoked the control order and decided that AP should be deported on national
security grounds. AP appealed to the Special Immigration and Asylum
Commission (SIAC) against the decision to make the deportation order. On 20
July 2009 AP was granted bail pending deportation, on conditions, including
residence in the Midlands, broadly similar to those of the previous control order,
except that the curfew period is 18 hours.
3. It appears that an anonymity order was made at the outset of the
proceedings in the Administrative Court and has been in force ever since. A
similar anonymity order was made in AP’s appeal to SIAC and it remains in force
pending the Commission’s decision.
4. At the outset of the hearing of AP’s appeal to this Court, the Court made an
order continuing the anonymity order for the duration of the hearing. The Court
also invited submissions from AP and the Secretary of State as to whether the
anonymity order should cover the publication of its judgment. No submissions
were invited from the media and they did not seek to intervene to make
submissions. In their submissions counsel for AP informed the Court that there had
been press interest in the proceedings before SIAC and that a representative of a
national newspaper had attended those proceedings to make submissions about the
exclusion of the press and public from parts of the proceedings. It had not been
suggested, however, that SIAC should reveal AP’s identity in its judgment or that
it should be open to the media to reveal his identity in any report of the
proceedings or judgment.
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5. In the present case the submissions for both AP and the Secretary of State
favour the continuation of the anonymity order. That is by no means conclusive,
however: on the contrary, the Court has borne in mind Sir Christopher Staughton’s
warning, in R v Westminster City Council, Ex p P (1998) 31 HLR 154, 163, that
“when both sides agreed that information should be kept from the public, that was
when the court had to be most vigilant.”
6. In In re Guardian News and Media Ltd [2010] 2 WLR 325 an application
was successfully made by various media to set aside anonymity orders in
proceedings relating to orders freezing the assets of suspected terrorists. In that
case counsel made some reference to anonymity orders in proceedings relating to
control orders. While not making any ruling on control orders – none of which was
before it – the Court observed, at p 348, para 78:
“Many of the same issues would obviously arise if an application
were made to set aside the anonymity orders made in any
outstanding control order proceedings. The same principles would
also have to be applied, but there may be arguments and
considerations in those cases which were not explored at the hearing
in this case. Conceivably, also, the position might not be the same in
all of the cases.”
7. In In re Guardian News and Media Ltd the Court heard full submissions
from both the media and the parties involved in the substantive proceedings. The
Court reviewed the relevant authorities on the application of articles 8 and 10 of
the European Convention on Human Rights and Fundamental Freedoms. There is
no call to repeat that exercise in the present case. Rather, so far as articles 8 and 10
are concerned, applying Lord Hoffmann’s guidance in Campbell v MGN Ltd
[2004] 2 AC 457, 473-474, paras 55 and 56, and the conclusions reached in In re
Guardian News and Media Ltd, at pp 340-341, paras 50-52, the Court must ask
itself “whether there is sufficient general, public interest in publishing a report of
the proceedings which identifies [AP] to justify any resulting curtailment of his
right and his family’s right to respect for their private and family life.” The Court
emphasised that the answer will depend on the facts of the particular case. No
issue under article 3 arose in that case.
8. In the present case both the Secretary of State and AP pointed out that,
where proceedings are taken to challenge a control order, the person affected may
well wish to argue that, for particular reasons, his identity should not be revealed.
He may require time to muster the relevant information and evidence. It therefore
makes sense for an interim anonymity order to be made at the ex parte permission
stage. Reference was made to the observations of Ouseley J in Times Newspapers
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Ltd v Secretary of State for the Home Department and AY [2008] EWHC 2455
(Admin) to that effect. I refer to those observations in para 11 below. The Court
accepts that, at least as a general rule, an interim anonymity order will indeed be
appropriate at that initial stage. It is important, however, that such an order should
not just be continued automatically, but that the need for the order in the particular
circumstances should be reviewed at the earliest suitable opportunity.
9. The submissions on behalf of the Secretary of State relied to a considerable
extent on rather generalised assertions about the effect of setting aside an
anonymity order: for example, it might result in harassment of the controlled
person or his family, they might be threatened with violence, there might be
disorder in the local community and friends and relatives might be reluctant to
associate with the controlled person for fear of being identified with an extremist,
publicity might prejudice any future prosecution. Experience with the freezing
order cases suggests that, when the anonymity order is set aside, these hypothetical
fears may well turn out to be exaggerated in the particular case. In line with the
approach outlined in In re Guardian News and Media Ltd, the Court has therefore
preferred to concentrate on the available information about the circumstances of
this particular case.
10. The Secretary of State put forward an argument which did not arise in
connexion with freezing orders. She pointed out that, when a control order is
imposed, the police have to take steps to monitor and enforce the order, for
instance, by visiting and searching the person’s residence. Other officials, such as
those involved in providing housing and in electronic monitoring, may also have to
attend. The Secretary of State argues that an anonymity order allows the police and
the other officials to carry out their duties without attracting significant attention or
any possible hostility from the local community. In this way the officials can
perform their duties more effectively.
11. It is not altogether easy to know just how much weight to attach in any
given case to these somewhat general points. But the Court notes that, with his
experience of the jurisdiction, in Times Newspapers Ltd v Secretary of State for the
Home Department and AY [2008] EWHC 2455 (Admin) Ouseley J was prepared
to give some weight to them, in the context of other general considerations. He
said, at para 5:
“Such public identification may lead to harassment of and the risk of
violence to the individual and his family by groups or individuals.
The individual may continue to live where he was living already, and
may remain in his job which could be put at risk. A media thirst for
detailed and accurate news, in the public interest, may generate
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persistent investigative reporting alongside highly intrusive watching
and besetting. There may be a risk of disorder in any given local
community. The knowledge that he is subject to a Control Order may
conversely make him attractive to extremists in the area where he
lives. It may make the provision of a range of services, including
housing, to the individual or his family rather more difficult. If the
individual believes that he faces these sorts of problems, he has a
greater incentive to disappear, to live elsewhere in the UK or abroad.
All of this can make monitoring and enforcement of the obligations
more difficult, and increase significantly the call on the finite
resources which the police or Security Service have to devote to
monitoring the obligations. This all occurs in circumstances where
the Secretary of State has been satisfied that serious criminal
prosecution is not presently realistically possible, though not
permanently excluded. There may therefore be an impact on other
proceedings not yet underway.”
In his view, such considerations justified the making of an interim anonymity
order at the application stage. In the absence of any competing view, the Court
considers that some weight should indeed be given to the Secretary of State’s
submissions that anonymity helps to make the administration of control orders
more effective.
12. But the Court has been more influenced by the submissions of counsel for
AP about the particular circumstances in this case. It would be counter-productive
to go into the detail of the submissions which might serve to identify the town
where AP is required to live.
13. In brief, counsel point out that the town where AP has to live is one where
there are already considerable community tensions. There is organised racist
activity in the town which has achieved not insignificant local support. There have
been racist attacks, including physical violence, on members of the Muslim
community in the town. There have also been attempts by racist groups to
associate Muslims with terrorism.
14. Given these particular circumstances, the Court considers that there is force
in AP’s submission that, if he were revealed to be someone who was formerly
subject to a control order and is now subject to deportation proceedings for alleged
matters relating to terrorism, then he would be at real risk not only of racist and
other extremist abuse but of physical violence. In other words there is at least a
risk that AP’s article 3 Convention rights would be infringed.
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15. AP also makes the point that he has been forced to live in a town where he
has no friends and no real social life. A difficult situation would be made very
much worse if the anonymity order were lifted and he found that he was ostracised
by members of his mosque and subjected to abuse by members of the public.
Again, it is hard to assess the precise risk of this happening. But the Court has to
weigh that risk in the context of the isolated situation in which AP finds himself
due to the requirement that he should live in this particular town.
16. Finally, the Court has had regard to medical evidence to the effect that the
bail conditions “represent a significant and constant challenge to [AP]’s
psychological and emotional integrity”. Again, this is a matter which has to be
taken into account when considering the impact on AP of setting aside the
anonymity order.
17. The absence of any submissions on behalf of the media means that, unlike
in In re Guardian News and Media Ltd, the Court is not aware of any special
circumstances which might point to a particular public interest in publishing a
report of the proceedings which identifies AP. On the other hand – and, again,
unlike in the Guardian News case – for the reasons which it has given, the Court is
unable to discount the risk that AP might indeed be subjected to violence if his
identity were revealed. The Court also has regard to the potential impact on his
private life.
18. For all these reasons, the Court has concluded that, in this particular case,
the public interest, in publishing a full report of the proceedings and judgment
which identifies AP, has to give way to the need to protect AP from the risk of
violence. Similarly, in this particular case, that public interest would not justify
curtailing AP’s right to respect for his private and family life. The anonymity order
should accordingly be maintained and the Court’s judgment, and any reports of
that judgment, should not reveal the appellant’s identity. He should continue to be
referred to as “AP”.
19. The Court is conscious that it has reached this decision without hearing
submissions from the media which might, conceivably, have cast a different light
on the situation. Therefore, except in relation to interim orders at the application
stage, the judgment should not be regarded as laying down any general rule as to
the way that applications for anonymity orders should be determined in control
order cases.
