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Session 2006 - 07
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Judgments - Secretary of State for the Home
Department (Appellant) v. JJ and others (FC) (Respondents)

HOUSE OF LORDS

SESSION 2006-07

[2007] UKHL 45

on appeal from: [2006] EWCA Civ 1141

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Secretary of State for the Home
Department (Appellant)
v.

JJ and others (FC)
(Respondents)

Appellate Committee

Lord Bingham of Cornhill

Lord Hoffmann

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

Counsel

Appellants:

Ian Burnett QC

Philip Sales QC

Tim Eicke

Cecilia Ivimy

Andrew O'Connor

(Instructed by Treasury Solicitor)

Respondents:

JJ: Manjit Gill QC and Barnabas Lams

(Instructed by Lawrence & Co)

GG and KK: Ben Emmerson QC and Raza
Husain

(Instructed by Gladstone Solicitors)

HH and NN: Edward Fitzgerald QC, Keir
Starmer QC and Stephanie Harrison

(Instructed by Tyndallwoods)

Intervener

Special Advocates

Justice:

Michael Fordham QC and Tom Hickman

(Instructed by Clifford Chance)

Michael Supperstone QC and Judith Farbey

(Instructed by Special Advocates' Support
Office)

Hearing date:

5, 9, 10, 11, 12 and 13 July
2007

ON

WEDNESDAY 31 OCTOBER
2007

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Secretary of State for the Home Department (Appellant) v.
JJ and others (FC) (Respondents)

[2007] UKHL 45

LORD BINGHAM OF CORNHILL

My Lords,

1.  In a judgment given on 28 June
2006 Sullivan J held that obligations imposed on the respondents in
control orders made by the Secretary of State under the Prevention of
Terrorism Act 2005 deprived the respondents of their liberty in breach of
article 5 of the European Convention on Human Rights and that the orders
should be quashed: [2006] EWHC 1623 (Admin). The Court of Appeal (Lord
Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge
P) dismissed the Secretary of State's appeal against that decision on 1
August 2006: [2006] EWCA Civ 1141, [2007] QB 446. On this appeal to the
House the Secretary of State challenges both limbs of the decisions below,
contending that the obligations imposed on the respondents did not deprive
them of their liberty and that, if they did, the orders should have been
modified and not quashed.

2.  This is one of four appeals heard
by the House together. The facts of the four appeals are different. Some
issues are common to more than one appeal, and some are not. Separate
judgments were given below at first instance and (in three of the appeals)
by the Court of Appeal. It is convenient to give separate judgments in
this appeal, in the appeal involving E, and in the appeals
involving AF and MB, making such cross-reference as is
necessary to avoid repetition.

3.  There are six respondents, to
whom I shall refer as "the controlled persons" save where it is necessary
to distinguish between them. Five of the controlled persons are Iraqi
nationals. The sixth (LL, who has absconded and is not represented in this
appeal) is either an Iraqi or an Iranian national. Three have leave to
remain in this country and three have temporary admission. All are
suspected by the Secretary of State to have been involved in
terrorism-related activities and are assessed to pose a threat to the
public within the United Kingdom or overseas. None has been charged with
or prosecuted for any offence related to terrorism.

4.  The Prevention of Terrorism Act
2005 was enacted on 11 March 2005. It repealed Part 4 of the
Anti-terrorism, Crime and Security Act 2001, including section 23, which
the House had found to be incompatible with articles 5 and 14 of the
Convention in A and others v Secretary of State for the Home
Department [2004] UKHL 56, [2005] 2 AC 68. The purpose of the 2005
Act, as expressed in the long title, was "to provide for the making
against individuals involved in terrorism-related activity of orders
imposing obligations on them for purposes connected with preventing or
restricting their further involvement in such activity." At the forefront
of his argument the Secretary of State stresses the grave threat presented
to the public by the criminal activity of terrorists; the imperative duty
of democratic governments to do what can lawfully be done to protect the
public against that threat; and the balance inherent in the European
Convention between the rights of individuals and the rights of the
community as a whole. These considerations provide the important backdrop
to these appeals, but they need not be elaborated since they are not
controversial.

5.  As will be seen in paragraph 7
below, the 2005 Act is drafted with express reference to article 5 of the
European Convention. Article 5 provides that "Everyone has the right to
liberty and security of person". The article continues: "No one shall be
deprived of his liberty save in the following cases and in accordance with
a procedure prescribed by law". There follows a list ((a) to (f)) of cases
in which a person may be deprived of his liberty in accordance with a
procedure prescribed by law. The cases listed are those in which any
democratic state is likely to exercise a power to detain: on sentence
following conviction, breach of a court order, arrest on suspicion of
crime, infectious disease, mental illness, unlawful entry, pending action
to deport or extradite, and so on. This list, as the European Court of
Human Rights has repeatedly emphasised, is exhaustive and is to be
narrowly interpreted (see, for instance, Engel v The Netherlands
(No 1) (1976) 1 EHRR 647, para 57; Kurt v Turkey (1998)
27 EHRR 373, para 122; Mancini v Italy (App no 44955/98, 12
December 2001), para 23. This reflects the importance attached by the
Convention to the right to liberty and security. Thus a person may not be
deprived of his liberty unless his case falls within one of the listed
classes of case. That proposition, however, is subject to one
qualification. By article 15 of the Convention, given domestic effect by
sections 14 and 16 of the Human Rights Act 1998, a state party to the
Convention may derogate from article 5, subject to certain formalities,
"[1] in time of war or other public emergency threatening the life of the
nation … to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with its other
obligations under international law". It is common ground that none of the
cases subject to this appeal fall within any of the categories listed in
(a) to (f) of article 5 of the Convention, and the United Kingdom has not
derogated from its obligation to comply with that article. It necessarily
follows that if, as the controlled persons (with the support of Justice)
contend and the Secretary of State strongly denies, the effect of the
obligations imposed on the controlled persons under the control orders is
to deprive them of their liberty, such orders are inconsistent with
article 5 of the Convention.

The 2005 Act

6.  The core of the 2005 Act is found
in section 1. Subsection (1) defines a control order as meaning "an order
made against an individual that imposes obligations on him for purposes
connected with protecting members of the public from a risk of terrorism".
Subsection (4) specifies the obligations which a control order "may
include, in particular". It is not therefore an exclusive list. But it is
a detailed list, containing sixteen potential obligations running from (a)
to (p). It is unnecessary to recite the full list. Among the listed
obligations are : "(d) a restriction on his association or communications
with specified persons or with other persons generally; (e) a restriction
in respect of his place of residence or on the persons to whom he gives
access to his place of residence; (f) a prohibition on his being at
specified places or within a specified area at specified times or on
specified days; (g) a prohibition or restriction on his movements to, from
or within the United Kingdom, a specified part of the United Kingdom or a
specified place or area within the United Kingdom; (j) a requirement on
him to give access to specified persons to his place of residence or to
other premises to which he has power to grant access; (k) a requirement on
him to allow specified persons to search that place or any such premises
for the purpose of ascertaining whether obligations imposed by or under
the order have been, are being or are about to be contravened; …". A
person who, without reasonable excuse, contravenes an obligation imposed
on him by a control order is guilty of an offence punishable, on
conviction on indictment to imprisonment for a term of up to five years
(s.9(1) and (4)(a)).

7.  The Act draws a categorical
distinction between what it calls a "derogating control order" and what it
calls a "non-derogating control order". The former is defined in section
15(1) to mean "a control order imposing obligations that are or include
derogating obligations" and a "derogating obligation" is defined in
section 1(10) to mean "an obligation on an individual which - (a) is
incompatible with his right to liberty under Article 5 of the Human Rights
Convention; but (b) is of a description of obligations which, for the
purposes of the designation of a designated derogation, is set out in the
designation order." A "non-derogating control order" is defined in section
15(1) to mean "a control order made by the Secretary of State": it is one
that does not consist of or include derogating obligations. Thus the
premise of the Act is that control orders made under section 1 of the Act
and including obligations within the scope of section 1(4) may, or of
course may not, be incompatible with the controlled person's right to
liberty under article 5 of the Convention.

8.  The power to make a control order
against an individual, in the case of an order imposing obligations that
are or include derogating obligations, is exercisable by the court on an
application by the Secretary of State (s.1(2)(b)); save where the order
imposes obligations that are incompatible with the individual's right to
liberty under article 5, the power is exercisable by the Secretary of
State (s.1(2)(a)), with the permission of the court (s.3(1)(a)) save where
the urgency of the case requires an order to be made without permission
(s.3(1)(b)). In each case there is a preliminary hearing by the court, but
the procedure differs (section 4(1) applies to derogating control orders,
section 3(1)(a), (2), (3), (5) and (6) to non-derogating control orders).
The threshold conditions for making an order are different. At the
preliminary hearing, the court may make a derogating control order against
the individual in question under section 4(3) if it appears to the court

"(a)  that there is material which (if not disproved) is
capable of being relied on by the court as establishing that the
individual is or has been involved in terrorism-related activity;

(b) that there are reasonable grounds for believing that the
imposition of obligations on that individual is necessary for purposes
connected with protecting members of the public from a risk of
terrorism;

(c) that the risk arises out of, or is associated with, a public
emergency in respect of which there is a designated derogation from the
whole or a part of Article 5 of the Human Rights Convention; and

(d) that the obligations that there are reasonable grounds for
believing should be imposed on the individual are or include derogating
obligations of a description set out for the purposes of the designated
derogation in the designation order."

By contrast, under section 2(1) the Secretary of State may make a
non-derogating control order against an individual if he "(a) has
reasonable grounds for suspecting that the individual is or has been
involved in terrorism-related activity; and (b) considers that it is
necessary, for purposes connected with protecting members of the public
from a risk of terrorism, to make a control order imposing obligations on
that individual." At the preliminary hearing before such an order is made,
or immediately after in case of urgency, the court's function is to
consider whether the Secretary of State's decision is "obviously flawed"
(s.3(2),(3)).

9.  On the full hearing the function
of the court is again different. In the case of a derogating control order
the test reflects that set out in section 4(3) quoted above: the court may
confirm the order, with or without modifications, only if (section
4(7))

"(a)  it is satisfied, on the balance of probabilities,
that the controlled person is an individual who is or has been involved
in terrorism-related activity;

(b) it considers that the imposition of obligations on the
controlled person is necessary for purposes connected with protecting
members of the public from a risk of terrorism;

(c) it appears to the court that the risk is one arising out of, or
is associated with, a public emergency in respect of which there is a
designated derogation from the whole or a part of Article 5 of the Human
Rights Convention; and

(d) the obligations to be imposed by the order or (as the case may
be) by the order as modified are or include derogating obligations of a
description set out for the purposes of the designated derogation in the
derogation order."

In the case of a non-derogating order the function of the court is to
decide, applying the principles applicable on an application for judicial
review, whether any relevant decision of the Secretary of State was
"flawed" (s.3(10)(11)).

10.  A derogating control order has
effect for six months unless revoked or renewed (s.4(8)), provided the
derogation remains in force and the designation order was not made more
than twelve months earlier (s.6(1)), and may be revoked or modified by the
court (s.7(5)-(7)). A non-derogating control order has effect for a period
of twelve months (s.2(4)), renewable indefinitely for twelve months at a
time if the Secretary of State considers that the conditions for making it
continue to obtain (s.2(6)). It may be revoked or modified by the
Secretary of State (s.7(1)-(2), but he may not make any modification which
converts a non-derogating control order into a derogating control order
(s.7(3)). A power of arrest exists in relation to derogating but not
non-derogating control orders (s.5).

11.  In some respects the Act does
not distinguish between the two types of order. Thus the duty on the
Secretary of State and the chief officer of police in relation to
prosecution, considered in more detail in the case of E, is the
same in the two cases (s.8), as are the criminal consequences of
contravening an obligation (s.9). The procedural provisions laid down in
the Schedule to the Act apply to both types of control order proceedings
(s.11), although the rules made pursuant to the rule-making power
conferred by the Act distinguish between derogating control orders (Part
II of Part 76 of the Civil Procedure Rules) and non-derogating control
orders (Part III). No appeal lies to the Court of Appeal from any
determination of the court in control order proceedings, except on a
question of law (s.11(3)).

Deprivation of liberty

12.  In ordinary parlance a person is
taken to be deprived of his or her liberty when locked up in a prison cell
or its equivalent. This common sense approach is, unsurprisingly,
reflected in the Convention jurisprudence. Thus in Engel, above,
para.58, the European Court has recognised that "In proclaiming the 'right
to liberty', paragraph 1 of Article 5 is contemplating individual liberty
in its classic sense, that is to say the physical liberty of the person",
a ruling repeated in Guzzardi v Italy (1980) 3 EHRR 533, para.92.
It has also referred to "classic detention in prison or strict arrest"
(Guzzardi, para.95). Further, the court has recognised the
distinction between deprivation of liberty and restriction of movement and
freedom of a person to choose his residence. The latter are the subject of
article 2 of Protocol 4 to the Convention, a provision which the United
Kingdom has not ratified but which is accepted as relevant in interpreting
the scope of the prohibition in article 5.

13.  It is, however, common ground
between the parties that the prohibition in article 5 on depriving a
person of his liberty has an autonomous meaning: that is, it has a Council
of Europe-wide meaning for purposes of the Convention, whatever it might
or might not be thought to mean in any member state. For guidance on the
autonomous Convention meaning to be given to the expression, national
courts must look to the jurisprudence of the Commission and the European
Court in Strasbourg, which United Kingdom courts are required by section
2(1) of the Human Rights Act 1998 to take into account. But that
jurisprudence must be used in the same way as other authority is to be
used, as laying down principles and not mandating solutions to particular
cases. It is, as observed in R(Gillan) v Commissioner of Police of the
Metropolis [2006] UKHL 12, [2006] 2 AC 307, para 23, perilous to
transpose the outcome of one case to another where the facts are
different. The case law shows that the prohibition in article 5 has fallen
to be considered in a very wide range of factual situations. It is to the
principles laid down by the court in Engel and Guzzardi
particularly, reiterated by the court on many occasions (see, for
instance, Ashingdane v United Kingdom (1985) 7 EHRR 528, para 41,
Amuur v France (1996) 22 EHRR 533, para 42), that national courts
must look for guidance.

14.  A series of Strasbourg decisions
establishes that 24-hour house arrest has been regarded as tantamount to
imprisonment and so as depriving the subject of his or her liberty : see,
for example, Mancini v Italy, above, para 17; Vachev v Bulgaria
(App no 42987/98, 8 October 2004), para 64; NC v Italy (App no
24952/94, 11 January 2001, para 33; Nikolova v Bulgaria (No
2) (App no 40896/98, 30 December 2004), para 60. In Trijonis v
Lithuania (App no 2333/02, 17 March 2005) the applicant's complaint in
relation to a period of 24-hour home arrest was held to be admissible. In
Pekov v Bulgaria (App no 50358/99, 30 June 2006), para 73, it was
argued by the Government that the house arrest of the applicant did not
deprive him of his liberty since the monitoring authorities were far away,
so that he could leave his house with impunity, but this was not an
argument which the court accepted. The decision of the High Court of
Justiciary in McDonald v Dickson 2003 SLT 467, para 17, that the
appellant had not been deprived of his liberty during six days of 22-hour
house arrest because he had not been subject to any physical confinement
or restraint, cannot, in my respectful opinion, be reconciled with this
authority.

15.  Continuous house arrest may
reasonably be regarded as resembling, save as to the place of confinement,
conventional modes of imprisonment or detention. But the court has made
clear (Guzzardi, para 95) that deprivation of liberty may take
numerous forms other than classic detention in prison or strict arrest.
The variety of such forms is being increased by developments in legal
standards and attitudes, and the Convention must be interpreted in the
light of notions prevailing in democratic states (ibid). What has
to be considered is the concrete situation of the particular individual
(Engel, para 59; Guzzardi, para 92; HL v United Kingdom
(2004) 40 EHRR 761, para 89). Thus the task of a court is to assess
the impact of the measures in question on a person in the situation of the
person subject to them. The Strasbourg court has been true to this guiding
principle. Thus in Engel, para 59, the court recognised that "A
disciplinary penalty or measure which on analysis would unquestionably be
deemed a deprivation of liberty were it to be applied to a civilian may
not possess this characteristic when imposed upon a serviceman." In
Ashingdane the applicant had been transferred from a high security
mental hospital to an ordinary psychiatric hospital but was, it seems,
still held to be detained and so deprived of his liberty (albeit
legitimately) during the latest phase of his stay in the psychiatric
hospital when he was on an open ward, was free to make regular unescorted
visits to his family, was going home every weekend from Thursday to Sunday
and was free to leave the hospital as he pleased on Monday to Wednesday
provided only that he returned to his ward at night (see pp 536,
543-544).

16.  Thus the court has insisted that
account should 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 (Engel, para 59; Guzzardi, paras 92,
94). There may be no deprivation of liberty if a single feature of an
individual's situation is taken on its own but the combination of measures
considered together may have that result (Guzzardi, para 95).
Consistently with this approach, account was taken in Guzzardi of a
number of aspects of the applicant's stay on the island of Asinara : the
locality; the possibilities of movement; his accommodation; the
availability of medical attention; the presence of his family; the
possibilities of attending worship; the possibilities of obtaining work;
the possibilities for cultural and recreational activities; and
communications with the outside (pp 342-345). In the result, the court on
the facts attached weight (para 95) to the small area of the island open
to him, the dilapidated accommodation, the lack of available social
intercourse, the strictness of the almost constant supervision, a
nine-hour overnight curfew, the obligation on him to report to the
authorities twice a day and inform them of any person he wished to
telephone, the need for consent to visit Sardinia on the mainland, the
liability to punishment by arrest for breach of any obligation and the
sixteen month period during which he was subject to these restrictions.
Some of these matters plainly fall within the purview of other articles of
the Convention. Because account must be taken of an individual's whole
situation it seems to me inappropriate to draw a sharp distinction between
a period of confinement which will, and one which will not, amount to a
deprivation of liberty, important though the period of daily confinement
will be in any overall assessment.

17.  The Strasbourg court has
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 is
no bright line separating the two. The court acknowledges (ibid)
the difficulty attending the process of classification in borderline
cases, suggesting that in such cases the decision is one of pure opinion
or what may, rather more aptly, be called judgment.

18.  In assessing the impact of the
measures in question on a person in the situation of the person subject to
them, the court has assessed the effect of the measures on the life the
person would have been living otherwise. Thus no deprivation of liberty
was held to result from light arrest of serving soldiers (Engel,
para 61) since they continued to perform their duties and remained more or
less within the ordinary framework of their army life. The decisions of
the court on curfews during the night hours is consistent with that
approach. The curfew from 9pm to 7am imposed in Raimondo v Italy
(1994) 18 EHRR 237 and the obligation imposed on him not to leave home
without informing the police did not prevent him living a normal life and
did not deprive him of his liberty. In Labita v Italy (App no
26772/95, 6 April 2000) the applicant made no complaint of deprivation of
liberty during a period when he was subject to a curfew from 8pm to 6am.
In Ciancimino v Italy (1991) 70 DR 103 the applicant was obliged to
live in a nominated commune which he was not permitted to leave, was
obliged to report to the police daily at 11am and was subject to a curfew
from 8pm to 7am, but this did not amount to a deprivation of liberty. The
same result followed in Trijonis, above, in which from 11 January
2001 until 6 May 2002, the applicant was permitted to be at his work-place
during week-days, subject to a curfew at his home from 7pm to 7am on
week-days and for the whole day at the weekend. The court pointed out,
contrasting the case with Guzzardi, that the applicant was allowed
to spend time at work as well as at home during this period.

19.  It is not, I think, suggested
that the Strasbourg court has had to rule on any case at all closely
comparable with the present. It is inappropriate to seek to align this
case with the least dissimilar of the reported cases. The task of the
English courts is to seek to give fair effect, on the facts of this case,
to the principles which the Strasbourg court has laid down.

The obligations imposed on the controlled persons

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