Secretary of State for the Home Department v E & S

This is the judgment of the court to which all members have contributed.

It is an appeal against a judgment of Beatson J dated 16 February 2007 by which he allowed the appeal of E against the renewal by the Secretary of State for the Home Department (“the appellant”) of a control order made against E (“the respondent”) on 12 March 2005, and renewed on 7 March 2006. The judge quashed the order. The order was made under sections 1 and 2 of the Prevention of Terrorism Act 2005 (“the 2005 Act”) which came into force on 11 March 2005, that is the day before the order was made.

Permission to appeal was granted by the judge. S, the wife of E, was, by order, joined as a party to the proceedings so that she could make submissions, on behalf of herself and her children, about the effect of the control order on them.

In March 2005, the basis for the decision to make the control order, correcting an earlier clerical error, was stated to be:

“You were a member of an extreme Islamist group, the Tunisian Fighting Group (TFG) which is linked to Al Qaida and Algerian terrorist group, the Salafist Group for Call and Combat (GSPC). Both TFG and Al Qaida are aligned to the concept of ‘global Jihad’.

When you were detained in December 2001, a considerable amount of material was found which suggests that you had been involved in credit card or cheque frauds in the course of which considerable sums of money had been raised.”

The Security Service submission stated:

“E has been involved in terrorism-related activity and is a significant international terrorist, with extensive extremist contacts. Before he was detained under the ATCSA [Anti-Terrorism Crime and Security Act 2001], he undertook a wide variety of terrorist support activity and posed a threat to UK national security. His conduct has facilitated the preparation or commission of acts of terrorism, or was intended to do so, and has provided support and assistance to individuals known or believed to be involved in terrorism-related activity.”

E has been refused asylum but his rights under the European Convention on Human Rights (“the Convention”) at present protect him from deportation. It is not submitted that the 2005 Act is incompatible with the Convention.

The order was a non-derogating control order within the meaning of section 2 of the 2005 Act so that it was required to comply with article 5 of the Convention, as well as other articles. The judge held that restrictions in the control order imposed on the respondent amounted to a deprivation of liberty within the meaning of article 5. The judge also found that the appellant’s failure sufficiently to consider the prospect of prosecuting E meant that his continuing decision to maintain the control order was flawed. Lord Phillips of Matravers CJ, giving the judgment of this court in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, stated, at paragraph 53: “A control order is only appropriate where the evidence is not sufficient to support a criminal charge”.

Aspects of the procedure under the 2005 Act have been considered in this court in JJ & Ors [2006] EWCA Civ 1141, decided on 1 August 2006. This court, dismissing an appeal by the appellant against a decision of Sullivan J [2006] EWHC 1623, held that restrictions in the control order in those cases amounted to a deprivation of liberty within the meaning of article 5.

Leave to appeal to the House of Lords has been given in both MB and JJ. In Secretary of State for the Home Department v AF (30 March 2007, [2007] EWHC Admin 651), Ouseley J quashed a control order and permitted the appellant to adopt a “leapfrog” procedure and petition the House of Lords for leave to appeal. We were told that a petition is being prepared. We bear in mind the possibility that application for leave will also be made in the present case, with the further possibility of this case being heard in the House of Lords with JJ.

E and S were jointly represented on the hearing of this appeal by Mr Keir Starmer QC and Mr Hugh Southey. A special advocate, Mr Angus McCullough, also appeared. There was a short closed hearing, to which no further reference need be made.

By a respondent’s notice, E also submitted that the order of Beatson J should be upheld for reasons which did not find favour with the judge:

E kept open, in case of appeal to the House of Lords, submissions not available in this court because of its decision in MB; that a control order is a criminal charge for the purposes of article 6 of the Convention and that the reliance on closed material is unfair in this context. We were told that other points decided by the court in MB are not subject to appeal.

The criteria to be satisfied before a non-derogating control order may be made by the Secretary of State are set out in section 2(1) of the 2005 Act. That provides:

“The Secretary of State may make a 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.”

For the purposes of this appeal, and subject to argument based on procedural fairness and section 8, it is not challenged that the criteria were met. Such an order has effect for a period of 12 months beginning with the day on which it is made but may be renewed on one or more occasions (Section 2(4)). Section 3 provides for supervision by the court of the making of such orders. Section 3(2) provides that, where the Secretary of State makes an application for permission to make such an order, the function of the court is to consider whether the Secretary of State’s decision that there are grounds to make that order is obviously flawed and the court may give permission unless it determines that the decision is obviously flawed.

An order made without the permission of the court must be referred immediately to the court (section 3(3)). By virtue of section 3(12), if the court determines that a decision of the Secretary of State was flawed, it may quash the order, quash one or more obligations imposed by the order or may give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

Section 7 empowers the Court to revoke, relax or modify the obligations imposed by an order while it is in force. Paragraph 8 of the Schedule to the 2005 Act empowers the Secretary of State, when a control order, or a renewal of a control order, is quashed, to make a new order “to the same or similar effect.” That power has been exercised in the present case, following the judge’s decision.

Section 10 confers a right of appeal against the renewal of an order, or its modification without the consent of the controlled person. That is the right exercised by the respondent in the present case. Under section 10(4), the function of the court, on an appeal against renewal, is to determine whether the decision of the Secretary of State that it is necessary for an order imposing obligations to continue in force was flawed and whether his decision that the obligations to be imposed by the renewed order are necessary was flawed. Before the judge, the respondents successfully argued that restrictions on the control order imposed on E amounted to a deprivation of liberty.

Article 5(1) of the Convention provides: “Everyone has the right to liberty and security of the person”. It goes on to provide: “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” The limited circumstances in which that may occur are then set out including, of course: “the lawful detention of a person after conviction by a competent court.” The appellant does not seek to rely on any of the saving provisions, accepting that the issue under article 5 is whether the order involves a deprivation of E’s liberty.

In Engel & Ors v Netherlands (No.1) [1976] 1 EHRR 647, the European Court of Human Rights (ECtHR) stated, at paragraph 58:

“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. Its aim is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion.”

The court added, at paragraph 59:

“Account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question.”

Engel was cited in Guzzardi v Italy [1983] 3 EHRR 333, of which Lord Bingham of Cornhill, when considering article 5 in R(Gillan & Or) v Commissioner of Police for the Metropolis [2006] 2 AC, 307, at paragraph 24, stated that it contained: “Perhaps the clearest exposition of principle by the Strasbourg Court … an exposition repeatedly cited in later cases.”

The restrictions in Guzzardi, as summarised by the judge in the present case, at paragraph 203, were:

“First, Guzzardi could only move freely in an area of 2.5 square kilometres, a tiny fraction of Asinara [the island where he was detained], 90% of which was occupied by a prison. Secondly, he was housed in a hamlet many of the buildings of which were in a state of disrepair. He lived there principally in the company of other persons subject to the same regime and policemen. The permanent population of Asinara (approximately 200 people) resided almost entirely in a location which Guzzardi could not visit, and they appeared to have made little use of their right to go to the place in which he resided. Consequently, there were few opportunities for social contacts available to him other than with his near family, other people subjected to the same regime, and the supervisory staff.”

The Italian Government relied, amongst other things, on “the inviolability of his home and of the intimacy of his family life” in submitting that there was no breach of article 5 (Guzzardi paragraph 91).

The court stated:

“90.

The Commission was of the view that on Asinara the applicant suffered a deprivation of liberty within the meaning of the Article; it attached particular significance to the extremely small size of the area where he was confined, the almost permanent supervision to which he was subject, the all but complete impossibility for him to make social contacts and the length of his enforced stay at Cala Reale.

91.

…

92.

The Court recalls that in proclaiming the ‘right to liberty’, paragraph 1 of Article 5 is contemplating the physical liberty of the person; [described in Engel (paragraph 58) as “individual liberty in its classic sense”] its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 which has not been ratified by Italy. In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see the EngelandOthers judgment of 8 June 1976, paras 58-59). [The same terminology had been used, save that ‘type’ replaces ‘nature’.]

93.

The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.”

The court referred to the Commission’s use of the expression “actual position” of Guzzardi, an expression also used by Keene LJ when considering article 5(1) in Secretary of State for the Home Department v Mental Health Review Tribunal and PH [2002] EWCA Civ 1868, paragraph 15. It bears the same meaning as “concrete” in this context.

Having referred to the submissions of the Italian Government, the court stated, at paragraph 95:

“… Deprivation of liberty may, however, take numerous other forms. Their variety is being increased by developments in legal standards and in attitudes; and the Convention is to be interpreted in the light of the notions currently prevailing in democratic States.”

The court concluded, by a majority of 11 to 7, that there had been breach of article 5.

In Ciancimino v Italy (1991) 70 D & R 103, a complaint of a breach of article 5, based on a night time curfew combined with checks on the complainant’s presence at home every day and sometimes at odd hours of the night was found by the Strasbourg Commission to be manifestly ill-founded.

In Trijonis v Lithuania (Application No.2333/02, 17 March 2005) two periods of “home arrest” were under consideration, the second lasting sixteen months. The obligation of the applicant during that period was “to remain at home only on weekends and from 7pm until 7am during weekdays, the possibility being given for him to be at work during the rest of the time”. The court held that the “home arrest” did not amount to a deprivation of liberty. Article 5 was not applicable and the application was inadmissible.

In JJ, this court upheld the decision of Sullivan J [2006] EWHC 1623 (Admin) that the control orders in those cases should be quashed as involving a deprivation of liberty contrary to article 5. The court stated, at paragraph 23:

“We agree that the facts of this case fall clearly on the wrong side of the dividing line.”

The judge had to make a value judgment, the court stated, as to whether the orders effected a deprivation of liberty.

The court succinctly set out, at paragraph 4, the obligations imposed by the control orders:

“Each respondent is required to remain within his ‘residence’ at all times, save for a period of six hours between 10am and 4pm. In the case of GG the specified residence is a one-bedroom flat provided by the local authority in which he lived before his detention. In the case of the other five respondents the specified residences are one-bedroom flats provided by the National Asylum Support Service. During the curfew period the respondents are confined in their small flats and are not even allowed into the common parts of the buildings in which these flats are situated. Visitors must be authorised by the Home Office, to which name, address, date of birth and photographic identity must be supplied. The residences are subject to spot searches by the police. During the six hours when they are permitted to leave their residences, the respondents are confined to restricted urban areas, the largest of which is 72 square kilometres. These deliberately do not extend, save in the case of GG, to any area in which they lived before. Each area contains a mosque, a hospital, primary health care facilities, shops and entertainment and sporting facilities. The respondents are prohibited from meeting anyone by pre-arrangement who has not been given the same Home Office clearance as a visitor to the residence.”

In JJ, this court noted the judge’s starting point which had been “the physical restriction that confined each respondent to a small flat for eighteen hours a day. Such a restriction makes most serious inroads on liberty, even giving that word its most narrow meaning.” The court held, at paragraph 14, that, when Sullivan J referred to restrictions interfering with “normal life”, “the judge was considering the extent to which restrictions would prevent an individual from pursuing the life of his choice, whatever that choice might be.” We can say at this stage that we respectfully agree with that approach to the concept of “normal life”. It has regard to the actual situation of the controlled person rather than attempting to create an objective standard of normality.

The court accepted, at paragraph 15, that “it can be very relevant whether the individual is confined in his own home, or confined in quarters where he would not wish to live.” The court held, at paragraph 17, that the judge was correct to consider “the effect of the physical restraints on the respondents during 18 hours of the day in the context of the restrictions that applied to them when they were permitted to leave their residences.” The court rejected a submission that the court should not have regard to restrictions which engaged other articles of the Convention, such as articles 8 and 9: “The different Convention rights overlap, and it would be contrary to the approach of the Strasbourg court to consider them in watertight compartments.” (Paragraph 19)

The court continued, at paragraph 19:

“We need only point, by way of example, to the ‘particular importance’ that the Commission attached in Guzzardi to ‘the possibilities of social contacts’: see para 94 of the Report of the Commission adopted on 7 December 1978. The European Court of Human Rights also had regard to the ‘opportunities for social contact:’ para 95. These matters do not, of themselves, constitute deprivation of liberty. Where, however, they are features of a regime at the heart of which is physical confinement, they are relevant in considering whether the restrictions cross the boundary between restriction on the freedom of movement and deprivation of liberty.”

The court also considered that the judge’s appraisal of the likely duration of the control orders was realistic (paragraph 22).

In Gillan, it was held in the House of Lords that stop and search provisions in the Terrorism Act 2000 did not involve a breach of article 5. Lord Bingham of Cornhill, having set out, at paragraph 21, the relevant provisions in article 5, stated that reference must be made to article 2 of Protocol No.4 to the Convention because it “has been relied on by the European Court when considering what amounts to a deprivation of liberty under Article 5. Article 2(1) of the Protocol provides: “Everyone lawfully within the territory of a state shall, within that territory have the right to liberty of movement …” This Protocol has not been ratified by the United Kingdom.

In PH, Keene LJ cited a principle established by the Strasbourg jurisprudence:

“… a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former are governed by Article 2 of Protocol no. 4 and do not amount to a breach of Article 5 …”

In AF, a contribution from this court has not been considered necessary. The facts are different from those in other cases considered and we can deal with the decision, on this issue, quite briefly. Ouseley J cited the decision of this court in JJ and the judgment of Beatson J in the present case. The judge recognised the “quite intrusive process” involved in a restriction on receiving guests without prior approval. He accepted the “chilling effect” of the control order upon the controlled person meeting with other people, in the home and outside. The curfew was of fourteen hours duration. AF was able to meet almost whom he liked either in his home or outside it provided he remained in the permitted area. The real restriction outside curfew hours, the judge held, was in the extent of the permitted area. The area from which the controlled person was excluded included all three mosques to which he used to go, and prevented him from going into any significant educational establishment where he could study English. The judge concluded:

“88.

Taken by themselves, any one of the restrictions which flow from the way in which the area has been delineated would not amount to a deprivation of liberty. He is not prevented from re-arranging many parts of his life within his area. But together they cut him off to a large extent from his previous life. I attribute particular significance to the cumulative restrictions on mosques and educational establishments or employment opportunities in judging whether there is a deprivation of his liberty. And they have to be seen as additional to those which bite during curfew hours.

89.

Taking all these matters into consideration, I have come to the conclusion that, although as with E the decision is quite finely balanced, this is a case in which the restrictions cumulatively amount to a deprivation of liberty. They are markedly less severe than those in JJ and Others but broadly they are of comparable severity to those in E, overall. Beatson J regarded the requirement for prior approval for all visitors to the home and for prior approval for any pre-arranged meetings, and the requirement for approval to attend any meetings as very real restrictions which, as I read it, tipped the balance towards there being a deprivation of liberty. Those serious features are not present here in that way: outside, curfew hours AF can have visitors to his flat and he can meet them outside both without prior approval. But instead AF has a longer curfew, and a geographical area which has specific effects in relation to attendance at his preferred mosque and the pursuit of education in English, as well as other specific and more general impacts on what AF used to do. There was no issue over the mosque in E and E had a larger family group, including his children, with whom he had unrestricted contact.”

E is 43 years old, was born in Tunisia, and has been in the United Kingdom since 1994. He was refused asylum but granted exceptional leave to remain. He is married to S who is 32 years old. They have four children, aged between 7 and 1 years and, at the time of hearing before the judge, S was five months pregnant. E lives in his own home over which he has a tenancy.

We will attempt to summarise the relevant obligations in the control order, concentrating upon those which are claimed to tip the balance against its lawfulness. E is required to reside in his home and remain there, save between 7am and 7pm, or as specified in written directions. By a variation, the residence includes the garden. He is required to report to the monitoring company by telephone each day on the first occasion he leaves the residence and on the last occasion he returns to it. Except by prior agreement with the Home Office, he may not permit any person to enter the residence, apart from his wife and children, his nominated legal representative, members of the emergency services or health care or social work professionals, any person aged 10 or under and any person required to be given access under the tenancy agreement. When seeking agreement for the entry of other persons, E is required to supply the name, address, date of birth and photographic identity of the individual to be admitted. The prior agreement of the Home Office is not required for subsequent visits by an agreed individual unless the existing agreement is withdrawn.

E may not, outside the residence, meet any person by prior arrangement other than his wife and children, his legal representative, for health and welfare purposes at establishments to be agreed by the Home Office, or for educational purposes at establishments similarly agreed. He may not attend any pre-arranged meetings or gatherings, other than attending group prayers at a mosque, save, in all the above cases, with the prior agreement of the Home Office.

E must permit entry to his residence to police officers and persons authorised by the Secretary of State or by the monitoring company, on production of identification, to verify his presence at the residence and to ensure that he can comply and is complying with the obligations imposed by the order. Monitoring may include searches of the residence, inspection and removal of articles to ensure that they do not breach obligations imposed by the order, and the installation of equipment considered necessary to ensure compliance with the obligations.

E may not bring or permit into the residence, or use, whether in or outside the residence, any communications equipment (including mobile phones) other than one fixed telephone line in the residence and one or more computers. The computer must, however, be disabled from connecting to the internet. Other persons entering the residence may bring in a mobile phone, provided it is switched off while E is in the residence. E must notify the Home Office of any intended departure from the United Kingdom and report to the Home Office immediately upon arrival on return. He may not hold more than one bank account. He may not transfer any money, or send any documents or goods, to a destination outside the United Kingdom, without the prior agreement of the Home Office.

The justification for the order was set out by the appellant in an open statement made in March 2005:

“E was detained under the ATCSA in December 2001 on the basis of his current involvement with, and activities in support of, terrorist groups and networks which pose a direct threat to the national security of the UK. The Secretary of State assesses that unless stringent bail conditions are imposed upon him, E would resume his extremist activities in connection with these groups and networks, and would continue to pose a threat to the UK’s national security. ”

The justification for restrictions relating to meetings, contacts and visitors was stated to be:

“Much of E’s terrorism-related activity necessarily involved regular contact with associates who were themselves involved in the same or other terrorism-related activity. Restrictions on E’s capacity to contact such persons or to share his expertise and contacts reduces the risk that he will involve himself again in those activities.

It is necessary that visitors to E’s home should, absent the prior agreement of the Home Office, be limited to family members, his legal representative and, in an emergency, to members of the emergency services. By the same token, E should not be permitted to meet anyone by prior arrangement while away from his residence, save with the prior permission of the Home Office. It is accepted that, when E is not restricted to his home, he will be able to meet other people who are of security concern, and that this cannot be prevented. However, the restriction on arranging such meetings before he leaves his home limits that possibility. Similarly, restrictions on E attending meetings or gatherings which have been pre-arranged by him or others limit his ability to arrange to meet his associates.

It is accepted however, that E’s religious beliefs require him to attend group prayers and that is therefore permitted.”

Thus the perceived need is to restrict, limit and to some extent control E’s contacts. The effect is to impose a degree of control over activities in his home and outside.

The judge in the present case acknowledged that E is living in the NW10 area, in which he lived before his detention under the 2001 Act, and that he lives with his nuclear family. The judge referred, at paragraph 231, to E’s “social network”: “he goes to the mosque, he takes his children to school and picks them up, he goes shopping and he sees family members who live in the area. Five family members living in the same area have been approved as visitors.” A friend of S’s has also been approved. No application for approval has been refused.

However the judge concluded, at paragraph 238 and following:

“Notwithstanding these matters, it is in my judgment of particular importance that E is subject to the same control over visitors to his home and meetings outside the home as the controlled persons in the JJ cases. Like them his home is not inviolable but is subject to spot checks and searches by the authorities at any time. These requirements do not restrict E’s movements. Nor is that their purpose. The stated purpose of the requirement of prior authority for visitors and prearranged meetings is to restrict E’s capacity to contact others involved in terrorism-related activity, and thus reduce the risk that he will involve himself in facilitation activities again.

239.

The subjection to police and other searches is more intrusive than the ‘doorstep condition’ commonly imposed on a bailed person during the hours of curfew where such a condition appears necessary to secure the matters listed in section 3(6) of the Bail Act 1976 (on which see R (CPS) v Chorley JJ [2002] EWHC 2162 (Admin)), or the fact that in Ciancimino’s case the applicant’s presence at home was checked every day and sometimes at odd hours of the night. Again, as I have noted, ….. in Guzzardi’s case the inviolability of Mr Guzzardi’shome and of the intimacy of his family were respected.

240.

It is the subjection to police and other searches of E’s home and the requirement that all visitors (and pre-arranged meetings outside the house) be approved in advance which make the requirements particularly intense. The restrictions that apply within the house give E’s home some of the characteristics of prison accommodation in which the prisoner has no private space and his visitors are all vetted.

241.

The prohibition on unapproved visitors is no doubt a general one because the authorities are not confident that they have identified all of E’s associates who are involved in terrorism-related activities or they may not wish to signal their interest in named individuals.”

The judge concluded, at paragraph 242:

“I have concluded that, although E’s is a more finely balanced case that the JJ cases, even giving only very limited weight to the medical evidence [to which we will refer later] as I do, the cumulative effect of the restrictions does deprive E of his liberty in breach of Article 5 of the Convention.”

On similar facts, Beatson J reached the same conclusion at paragraph 147 in Abu Rideh & J [2007] EWHC 804 (Admin).

Mr Tam QC, for the Secretary of State, made the general point that article 5 is contemplating the physical liberty of the person (Guzzardi paragraph 92), what was described in Engel (paragraph 58) as “individual liberty in its classic sense”. In Guzzardi, the physical restraint was severe, confinement to a small part of a small island. The court used substantially the same terminology in Guzzardi as it had used in Engel and did not create a departure from principles stated in Engel.

In support of the submission that the restrictions in the control order do not constitute a breach of article 5, Mr Tam relied on the respondent’s ability to live in his family home with his family. Unlike Guzzardi, he is not lodged compulsorily in other accommodation. He cannot go out after 7pm but it is to be expected that parents of young children will usually be at home at that time. Approval has been given for visitors to the home. While the need to obtain permission for visits may be inhibiting, he is not isolated from social contact. During the 12 hours when he is not subject to curfew, there is no geographical restriction upon the places he may visit and those to which he may travel.

Secondly, Mr Tam submitted that the court must look at the objective characteristics of the actual situation of the appellant and not “person specific” characteristics. If a controlled person’s health were to be taken into account, whether an order involves a breach of article 5 would depend on his state of health, an unacceptable approach, it is submitted.

Thirdly, control orders are valid for only 12 months and their duration should be considered on that basis. The court should not speculate as to further periods of detention. If duration were to be important, all may turn on the date on which a challenge to an order is made, an artificial situation, it is submitted.

Fourthly, where, as in this case, article 3 and article 8 challenges have been made, and rejected by the judge, factors relevant to them should not be reconsidered in an article 5 context.

Fifthly, the right of the police to enter E’s home, the need to obtain approval for visitors there and the need to obtain approval for meetings by prior arrangement outside the home, do not convert the situation into one in which article 5 is breached. E can attend at a mosque and attend educational courses in the course of which social contacts are likely to be made. A range of activities is permitted, including within an area where E has lived for four years.

Mr Starmer QC, for the respondent, relied on the reasoning of Beatson J already set out. He submitted that Guzzardi has introduced a fresh approach to the construction of article 5 which requires an analysis of the restrictions imposed by an order and not merely the physical restraint involved. Mr Starmer relied, in relation to duration, on the judge’s finding, at paragraph 233, that there is “a strong probability that the order will be renewed in 2007, and, unless there is a material change of circumstances, for further periods of 12 months at a time.” An order has now been in force for over two years.

Reliance was placed on the “chilling effect” of the need to obtain approval for visitors to the home. There are restrictions upon E’s social contacts and, unlike in Guzzardi, his home is not inviolable. The judge was correct, at paragraph 238 to attach “particular importance” to those restrictions, it was submitted, and, at paragraph 240, to refer to the requirements as “particularly intense”. The degree of control over E’s conduct, and the absence of inviolability of his home, produce a breach of article 5. While physical confinement was at the root of article 5, the degree of control and other conditions must also be considered. The lives of members of his family were also adversely affected.

Mr Starmer relied on the absence of challenges to the judge’s findings of fact which the judge set out in considerable detail in a reserved judgment following a four day hearing. The court should be cautious about interfering with the judge’s finding that the case fell on the wrong side of the line.

The starting point for a consideration of whether a deprivation of liberty has occurred, within the meaning of article 5(1), is to consider the “physical liberty” of the person (Engel paragraph 58, Guzzardi paragraph 92, Trijonis), individual liberty in the classic sense. The article is not concerned with mere restrictions on liberty of movement which are governed by article 2 of Protocol No. 4 (Guzzardi paragraph 92); not ratified by the United Kingdom. The restraints upon physical liberty were very much more severe in Guzzardi than in the present case. However, the effect of the physical restraint must be considered in the context of restrictions applied when the restraint is not operating (JJ paragraph 17). Whether the confinement is in the individual’s own home can be very relevant (JJ paragraph 15) but the inviolability or otherwise of the home is a relevant consideration (Guzzardi). The opportunity for social contacts is also a factor (Guzzardi paragraphs 90 and 95). The difference between deprivation of liberty, contrary to article 5(1), and restriction upon liberty is one of degree or intensity (Guzzardi paragraph 93). The court is concerned with the “effect”, “duration” and “manner of implementation” of the restrictions, as well as the “type” of restriction. The terminology is used in Guzzardi (paragraph 92) but that is substantially a repetition of terminology already used in Engel (paragraph 59).

This is not a situation, as it may be under article 8(1) and (2), in which a balance is to be struck. Subject to other parts of article 5 not relevant in the present case, there is a breach of article 5 if a deprivation of liberty is established. Where a non-derogating control order is made, reliance cannot be placed on the need for restrictions to justify a breach of article 5. There is no evidence that the right to search, the right to limit the admission of visitors to the home or the right to prevent social contacts outside the home have been oppressively exercised.

We deal with Mr Tam’s submissions we have numbered 2, 3 and 4. In relation to mental health, the Judge stated, at paragraph 230: “a person’s mental health may well affect the extent to which he is in fact socially isolated as a result of the restrictions.” The Judge concluded, at paragraph 231, that “only very limited weight can be given to his mental condition in the context of Article 5”.

We agree with the proposition that the state of a controlled person’s health, whether the disability is physical or mental, and possibly other “person specific” characteristics, may have an impact upon the severity of the effect, in his case, of restrictions imposed. We agree with the Judge’s conclusion that, in this case, only very limited weight can be given to this factor.

One of the criteria stated in Guzzardi, at paragraph 92, is the duration of implementation of a measure in question. This concept is not without difficulty because, on the face of it, article 5 would be expected to protect against deprivations of liberty even for a short period. However, we accept that, with respect to some of the restrictions imposed by this and other orders, and said to contribute to the breach of article 5, their duration, and their intensity, may be relevant to whether the overall restrictions amount to a deprivation of liberty.

In the JJ cases, as in the present case, the judge proceeded on the basis that the control orders would be likely to be renewed on expiry of the relevant twelve month period. In JJ, the court stated, at paragraph 22: “We consider that the judge’s appraisal of the likely duration of the order was realistic.” The judge in the present case stated, at paragraph 233, that there is “a strong probability that the order will be renewed in 2007, and, unless there is a material change of circumstances, for further periods of twelve months at a time.” We agree with that conclusion and that the restrictions should be considered on that basis.

We do not accept Mr. Tam’s submission that, because restrictions engage other articles in the Convention, such as article 8, they should be disregarded in an article 5 context. Evidence relevant to an article 8 claim, even if a breach of that article is not established, may be relevant on a consideration of article 5. We regard ourselves as bound, on this point, by the finding of this court in JJ, at paragraph 19:

“We do not agree that [the Judge] should have disregarded these matters merely because they could have been made the subject of complaint under other articles of the Convention. The different Convention rights overlap, it would be contrary to the approach of the Strasbourg Court to consider them in watertight compartments.”

In any event, we respectfully agree with that proposition. When considering the weight to be given to such matters in an article 5 context, it must, however, be kept in mind that it is deprivation of liberty, and not some other right, which is under consideration.

E is free to practise a range of activities, during the day time, in an area with which he is very familiar, and beyond it. He may attend the mosque and educational courses where he is likely to meet a range of persons and to do so regularly.

On its facts, the case is very different from the cases in JJ in that;

(a)

a period of curfew in the present case is substantially shorter, 12 hours out of 24 as against 18;

(b)

E is living with his family in his own home, with garden, whereas the specified residences in the JJ cases were one bedroom flats away from areas in which the controlled persons had previously lived;

(c)

the controlled persons in the JJ cases were confined to restricted urban areas which, save in one case, did not extend to any area in where they had previously lived.

While accepting the Judge’s findings of fact and paying all respect to the Judge’s conclusion, we have to make our own value judgment. The standard to be set, when considering whether there has been a breach of article 5, depends on the court making such a judgment.

We take the physical liberty of E, that is individual liberty in its classic sense, both as the starting point and as the central issue. E is deprived of the right to leave his home, and is detained in it, for 12 hours a day, the overnight hours. It is, however, his own home (and garden) and he can live there with his wife and young family. During the remaining 12 hours, the daytime hours, not only is there no geographical restriction on where he may go but his starting point, his home, is in the area he knows well as a result of having lived there for four years.

In our judgment, that degree of physical restraint upon liberty is far from a deprivation of liberty in article 5 terms. That is illustrated by Trijonis where the “home arrest” also included an obligation to remain at home throughout weekends, and the complaint was held inadmissible.

The intrusion into E’s life at home and the restriction on his outside activities must also be considered. Combined with a degree of physical restraint, such restrictions may create a breach of article 5 but it must be kept in mind that it is the concept of individual liberty in its classic sense which is in issue, a different concept from, for example, respect for private and family life. Intrusions into home and family life may contribute to a loss of liberty but their impact and effect on liberty require analysis. While the intrusion, under the control order, is potentially substantial, and applies throughout the 24 hours, we do not consider that it leads to a finding that the home thereby acquires the characteristics of prison accommodation in which E is detained, as Beatson J suggested at paragraph 240. It retains the attributes of a family home where domestic life may be enjoyed at all times.

As to the alleged “chilling effect” of the restrictions on people visiting the premises, it is the control order itself which essentially creates the chill. In AF, there was evidence to that effect and Ouseley J so found but in our judgment an inference can readily be drawn that people will be less ready to visit the home of someone subject to a control order, the existence of which is likely to be known. The requirement to “register” visitors may add to the reluctance to visit but is unlikely to be the sole or main cause, and the restriction should be viewed in that light.

The restrictions on E’s outside activities and contents are also significant and their effect on E must be considered. Keeping in mind that protection of physical liberty is at the heart of any consideration of article 5, they do not in our view make a substantial or decisive contribution to a complaint of deprivation of liberty.

Restriction is placed upon E’s activities in that he cannot, without the appellant’s agreement, make prior arrangements to meet people or attend pre-arranged meetings or gatherings. He is, however, left with wide opportunities, and in fact does engage in everyday activities (paragraph 40 above), including religious observance and practices. He may take up educational opportunities at agreed establishments. Not only may he engage in these activities, they provide considerable opportunity to make a wide range of social contacts in an area with which he is very familiar, and beyond.

The court must also have regard to the “manner” in which restrictions are implemented. Save that there were teething troubles, there is no evidence that the restrictions are being implemented, or the powers granted exercised, in an oppressive manner, or a manner beyond that contemplated by the stated justification for them, or as significantly interfering with domestic life or outside activities.

Bearing in mind the “type, duration, effects and manner of implementation” of the order, no deprivation of liberty, within the meaning of article 5 is, in our judgment, established in this case. We also take the view, for the reasons given in paragraph 57, that E’s case is in material respects plainly distinguishable from the JJ cases. Thus, to adopt the words used by this court in paragraph 23 of JJ, the facts of E’s case, in our judgment, fall on the right side of the dividing line.

Section 10 (7) of the 2005 Act empowers the court not only to quash the renewal of a control order but to quash “one or more obligations imposed by the order” and:

“(c)

. . . to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.”

On the court’s finding, no question of modification arises but we note that neither party has invited the court to exercise a power, if the court considers that modification is required, to give directions for the modification of the obligations imposed.

Potentially, that power is a useful one because it would enable the court, having made its value judgment, to relax restrictions in accordance with that value judgment without revoking the order and requiring a fresh start and a second journey through the courts. Mr Tam, however, referred to the importance of the Secretary of State, rather than the court, making the fresh assessment if the court finds a breach of article 5. That approach is reflected in JJ, the court stating, in paragraph 27: “this is an exercise that the Secretary of State is very much better placed to perform than the court.”

The jurisdiction to give such directions has not been challenged on the hearing of this appeal. While the point has not been fully argued, we are inclined to the view that the court has jurisdiction to direct modifications of the obligations in the order (pace Sullivan J at paragraph 92 to 97 in JJ). We do not consider that the Court of Appeal in JJ, when approving the course adopted by Sullivan J in those cases, was holding that the jurisdiction did not exist.

It is axiomatic that a control order is only made when it is considered that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. Where there is such a prospect, the subject will normally be charged and remanded on bail or (more usually) in custody pending the completion of the trial process, whereupon, if convicted, he will face a lengthy term of imprisonment. If he is acquitted, there may nevertheless be material justifying the making of a control order at that stage. The 2005 Act adverts to criminal investigation and prosecution in section 8 which provides:

“(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 purpose of 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 subsection (4) applies.

(4)

It shall then be the duty of the chief officer to secure that the investigation of the individual’s conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.

(5)

In carrying out his functions by virtue of this section the chief officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under subsection (4), to the extent that he considers it appropriate to do so.

(6)

The requirements of subsection (5) may be satisfied by consultation that took place wholly or partly before the passing of this Act.”

Thus, the statutory obligations imposed on the Secretary of State are confined to consultation before making or applying for a control order and thereafter informing the police that an order has been made and that subsection (4) applies. It is then for the police to keep the matter under review. However, in MB it was said (at paragraph 44):

“It is implicit from the provisions of section 7 [dealing with the modification of a control order] and would, we think be implicit even without those provisions, that it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights are no greater than necessary.”

In the present case, after the making of the control order, circumstances arose in which the Secretary of State became aware of judgments in the Belgian courts. It is submitted on behalf of E that they contain material implicating E in terrorism-related offences such as to require the Secretary of State (pursuant to MB) and/or the police (under section 8(4)) to review the prospects of a prosecution in this country. This submission found favour with Beatson J who said:

“… while accepting that the Secretary of State was not in breach of his duty under section 8, I have concluded that the failure to consider the impact of the Belgian judgments on the prospects of prosecuting E means that his continuing decision to maintain E’s control order is flawed. As far as the remedy is concerned, the question of whether the control order remains necessary is intimately bound up with the question of whether there is now evidence which gives rise to a realistic possibility of prosecuting E. In these circumstances it cannot be said that the failure on the part of the Secretary of State is technical …

… the Secretary of State’s failure to review the prospects of prosecuting E in the light of the Belgian judgments after they were received and translated means that his decision to maintain E’s control order was flawed and [I] would have quashed the control order on this ground.”

Mr Tam submitted that the judge was wrong to find a breach of duty on the part of the Secretary of State, alternatively, if there was such a breach of duty, it does not justify the quashing of the control order. Before considering these grounds of appeal, it is necessary to relate the factual background.

According to the evidence, the Security Service considers that E

“… was aware of and carried out acts in support of international terrorists and that these acts can be summarised as follows:

(i)

that he provided support to the leadership of the Tunisian Fighting Group involved in terrorist-related activity

(ii)

that he had links to terrorist planning

(iii)

that he provided accommodation for extreme Islamists

(iv)

that he facilitated the travel of individuals involved in terrorism.”

The early material upon which the Security Service based its view was to the effect that E was a contact of a man called Trabelsi who was one of those arrested in Belgium and at whose home address a machine gun had been found. E was also a contact of one Dahmane, said to be one of two Tunisian extremists involved in the assassination of Commander Masood, the leader of the Afghan Northern Alliance, in Afghanistan in September 2001. The assassination of Masood was carried out by means of a suicide attack. By the time of the hearing before Beatson J, the Secretary of State was placing heavy reliance on the Belgian judgments to explain his concerns about E. Beatson J said (at paragraph 69) that the most substantial support for E’s involvement in terrorism-related activity in the open evidence is to be found in the judgments of the Belgian courts. He referred to these passages:

“(a)

One of Masood’s assassins, Dahmane, was seen at E’s address in London. Two of the defendants in the Belgian proceedings stated that E had ‘harboured’ Dahmane at his home.

(b)

There is evidence that E’s group recruited Dahmane.

(c)

E provided false visas of the same type as that in Dahmane’s … passport to Lsiti Amor (also known as Abu Nadhir), and found on Mohammed Fethi, another of the defendants. The Belgian Court of Appeal also considered the visas used by Masood’s assassins originated from the same sources as those obtained by Lsiti Amor and found on Fethi.

(d)

A false visa with the Pakistan High Commission’s seal was used by Trabelsi, who when arrested in Belgium was found with a submachine gun and ammunition and admitted to having purchased large quantities of explosive ingredients.

(e)

Tareq Maaroufi, the head of the Belgian network, told the Belgian authorities that the British network channelling combatants from Europe to Afghanistan was under the direction of E and that he had ‘multiple meetings’ with Ben Hassine, E and Ben Khemais (also known as Saber) to win them over to his programme of armed struggle in Tunisia.

(f)

E provided hospitality to Lsiti Amor described by the judge as ‘the archetypal militant fundamentalist’. The Belgian Court of Appeal stated that Lsiti Amor had ‘definite and regular contact with the London network [and was] a familiar of [Ben Hassine and] his successor [E]’.”

On the basis of this material (more of which is set out in the judgment of Beatson J), the Secretary of State sought to justify the control order on the basis that

“The Security Service assesses that E is a significant Islamist extremist who has actively facilitated terrorism related activity in the UK and overseas.”

Moreover:

“On advice, it is not possible to prosecute E for criminal offences because the case against him is based upon material which might not be admissible in criminal proceedings. Even if the material were admissible, its disclosure would be very likely to cause harm to the public interest.”

It is important to place the Belgian judgments in their chronological context. E was certified under ATCSA and detained in HMP Belmarsh from December 2001. He was one of those whose case was considered by the House of Lords in A and others v Secretary of State for the Home Department [2004] UKHL 56. That decision of the House of Lords was promulgated on 16 December 2004. It necessitated a rethink on the part of the Secretary of State. Upon the coming into force of the 2005 Act on 11 March 2005, the Secretary of State made a control order against him. It was that control order (as amended) and renewed which came to be considered by Beatson J. The first instance judgment in Belgium was given on 30 September 2003 and that of the Belgian Court of Appeal on 9 June 2004. They came to the notice of the Secretary of State in September 2005.

The control order was renewed in March 2006. On 23 February 2006 the senior officer of the Metropolitan Police in the Anti-Terrorist Branch had written to the Secretary of State saying:

“Based upon the evidence and intelligence which is currently available I am satisfied that there is insufficient evidence to support a prosecution of this person for an offence relating to terrorism.”

However, although the Secretary of State was in possession of the Belgian judgments at that time, the police were not. The judge found that searches by the Home Office and enquiries of the Deputy Assistant Commissioner had not revealed any document concerning a review of the position with regard to prosecution between March 2005 and the renewal of the control order in March 2006. Moreover, there was no indication on either the Security Service files or the papers held by the Home Office that the Belgian judgments were sent to the police or to the CPS in order that the prospects of prosecution could be reviewed in the light of them. All control orders are reviewed by the Control Orders Review Group (CORG), set up by the appellant. Its general purpose is:

“to bring together all departments and agencies involved in making and maintaining control orders on a quarterly basis to keep all orders under frequent, formal and audited review”.

One of its specific purposes is: “to keep the prospect of prosecution under review, including for breach of the order”. There is no evidence of CORG reviewing the possibility of prosecution in the light of the Belgian judgments prior to the renewal of the control order. The judge said (at paragraph 291):

“The evidence of J, the National Security witness, is of particular significance on this issue. J did not believe that there had been any review of the question of prosecution in the light of the Belgian judgments. Once that evidence was before the court it was open to the [Secretary of State] to seek to adduce evidence to show that there had been such a review. No application to do so was made. In the light of J’s evidence and the absence of any evidence on behalf of the Secretary of State that the question of prosecution was reviewed in the light of the Belgian judgments, I conclude that it was not so reviewed.”

Against this factual background, it is now appropriate to address the issues raised. Logically, the first issue is one raised in the respondent’s notice which asserts that the duty to consider and review the possibility of prosecution is a condition precedent to the making or renewal of a control order, Beatson J having concluded that it is not. It will then be appropriate to consider the issues raised on behalf of the Secretary of State, namely whether there was a breach of the duty to keep the possibility of prosecution under review and, if there was, whether it justified the quashing of the control order.

The wholly exceptional nature of control orders and their intrusiveness are such that no one disputes that they should not be made where there is a realistic prospect of successful prosecution. This was made clear by the Secretary of State in the second reading debate on the Prevention of Terrorism Bill (see the judgment of Beatson J at paragraph 283). Moreover, in MB the Court of Appeal stated (at paragraph 53):

“… [a] control order is only appropriate where the evidence is not sufficient to support a criminal charge … it is implicit in the scheme that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order.”

Mr Starmer submitted that, such is the importance of the priority of prosecution as a result of the express provisions of section 8 and the implied obligation acknowledged in MB, that consideration and reconsideration of the realistic prospect of successful prosecution is a condition precedent to the making, maintaining and renewal of a control order. The power of the Secretary of State to make a control order is primarily governed by section 2(1) of the 2005 Act set out at paragraph 11 of this judgment.

Mr Starmer emphasised that that power of the Secretary of State is discretionary, that is he “may” make a control order. Accordingly, on the basis of Padfield v Minister of Agriculture [1968] AC 997, the discretion must be exercised in a manner that does not frustrate the statutory objective underlying section 8(2).

Like Beatson J we are unpersuaded by this submission. Far from supporting it, section 2(1) points the other way. It is section 2(1) which prescribes the conditions precedent to the exercise of the power of the Secretary of State to make a control order. If consultation about or reconsideration of prosecution had been intended to assume that level of legal significance, it would have featured in section 2. Instead, it is disassociated from the requirements in section 2(1) under the heading ‘Criminal investigations after making of Control Order’. Not all duties require compliance as conditions precedent. When properly considered in its statutory context we are satisfied that the duty under section 8(2) is not a condition precedent. Neither is the implied duty to keep under review, as expounded in MB, save to the extent that it relates to the matters set out in section 2(1).

The case for E is that the Secretary of State failed to comply with his duties at the time when the control order was first made in March 2005 and again when it was renewed in March 2006. It is said that he was in breach of his duty under section 8(2) in March 2005 and in breach of the duty to keep under review in accordance with MB in March 2006. It is necessary to look at the two stages separately.

March 2005

Prior to the making of the control order, the obligation of the Secretary of State under section 8(2) was to consult the police about whether there was evidence available that could realistically be used for the purposes of a prosecution for an offence relating to terrorism. On 11 January 2005 Ms Catherine Byrne of the Home Office wrote to Assistant Commissioner Sir David Veness relaying the request of the Secretary of State that the cases of those who had been detained under ATCSA “be reviewed by the police and the CPS with a view to your determining whether there is yet sufficient evidence to mount a prosecution in any of their cases”. As a result of this request, on 18 January Miss Hemming, the head of the CPS Counter-terrorism Division, together with a Detective Superintendent, visited Thames House to consider whether there would be any prospect of a prosecution. She reported her findings in a letter of 19 January 2005 in which she stated:

“It would be impossible without significant resources and time to read all of the primary material against each detainee so we carried out the review by considering the full statements prepared by the Home Secretary for the [ATCSA] proceedings. These were substantial documents summarising the main case against each person and identifying where the information came from. From this, we were able to see what information was held against each detainee and to establish whether the information could potentially be converted into admissible evidence or, whether it came from a closed or inadmissible source that could never become part of a criminal trial.”

She then summarised the position in relation to each of the 13 detainees. So far as E was concerned, she stated:

“Some documentation was found at the time of detention that suggested involvement in fraud, but there was insufficient to prove any offences. The information about his terrorist related activity comes from closed or inadmissible material that could never be used in a criminal prosecution.”

Summarising the position in relation to all of the detainees, she concluded:

“It will become immediately evident from reading the above that the majority of the information relied on … comes from sources that could not be relied upon in a criminal case. This is either because it comes from intelligence sources or agents that could not be revealed publicly or from the type of material that is legally incapable of use or would be ruled inadmissible if we sought to rely on it. In none of the cases was there identifiable material that was capable of further criminal investigation; where there was anything potentially admissible, it had already been considered and rejected or had been the subject of a criminal prosecution.”

We have corrected some typographical errors in that letter. The evidence also disclosed that, before the control order was made, representatives of the Home Office, the Police and the Security Service met on 7 and 8 March 2005. The possibility of prosecuting those under consideration, including E, was discussed and Miss Hemming’s letter was referred to.

On the basis of all this evidence Beatson J concluded that it was absolutely clear that the Secretary of State had consulted the police and that the police had consulted the CPS before the control order was made. The fact that the visit to Thames House had taken place before the enactment of the PTA was immaterial because section 8(6) provides that the duty of the police to consult the CPS may be satisfied by consultation “that took place wholly or partly before the passing of the Act”. We are entirely satisfied that the judge was correct to conclude that there had been consultation relevant to the obligations imposed by section 8. Nevertheless, it was submitted by Mr Starmer that, even if there was consultation, it was not sufficient to satisfy the requirements of section 8. He referred to Miss Hemming’s admission in the letter that it had been impossible to read all of the primary material. He calculated that, in view of the fact that 13 detainees were being considered, the average time spent by Miss Hemming and the Detective Superintendent on the case of each individual detainee was not much more than half an hour. In other words, he criticises the exercise on the basis that it was cursory and not comprehensive because it did not include consideration of all the primary materials. It is not necessary for us to dwell on this aspect of the case. In paragraphs 259 – 266 of his judgment, Beatson J gave a carefully reasoned explanation for his conclusion that the Secretary of State had complied with his obligation under section 8(2). We find no fault with that part of his judgment.

As we have observed, this aspect of the case fell to be considered in the context of the implied duty to keep under review as propounded in MB rather than the express duty under section 8(2). The approach of Beatson J is apparent from this passage in his judgment (at paragraph 284):

“In my judgment, although there had been no breach of section 8(2) … , the Secretary of State has a continuing duty to keep the decision to impose and maintain a control order under review. This includes keeping the matter of prosecution under review. Accordingly, if there has been a failure to keep the matter of prosecution under review, the Secretary of State’s decision to maintain a control order is likely to be flawed. Such a failure may arise as a result of the acts or omissions of the police or of the Secretary of State.”

We have already referred to some of the judge’s findings in relation to the Belgian judgments, culminating in the finding that from the time of the receipt of the Belgian judgments until the renewal of the control order in March 2006 the prospect of prosecution was not reviewed by reference to the Belgian judgments. The conclusion of the judge was that the failure to consider the impact of the Belgian judgments on the prospects of prosecuting E meant that the continuing decision of the Secretary of State to maintain the control order was flawed.

Mr Tam’s primary submission on this issue was that the judge wrongly elided the duties of the Secretary of State on the one hand and those of the police and the CPS on the other hand. He contended for a strict compartmentalisation of functions, suggesting that, once the Secretary of State has consulted the police at the outset pursuant to section 8(2), the MB duty to keep under review is satisfied by periodic enquiry of the police as to whether the prospect of a successful prosecution has increased. If the answer is in the negative, no more is required of the Secretary of State. He further suggested that this demarcation of functions avoids duplication of activity and locates the consideration and reconsideration of prosecution where it properly belongs as a matter of expertise and constitutional function.

These points, particularly the latter one, may resonate with one’s constitutional preconceptions. After all, there is a deep irony about a case in which the libertarian side (if we may so identify it) is complaining about insufficient involvement of the executive in the process of prosecution. However, in our judgment, the submissions on behalf of the Secretary of State miss the real point. Once it is accepted that there is a continuing duty to review pursuant to MB, it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful. In these circumstances, it was not sufficient to rely on the letter from Deputy Assistant Commissioner Clarke of 23 February 2006 as an answer to the question. There could be no properly considered answer to the question about the prospect of prosecution unless and until the police were provided with the Belgian judgments. That had not occurred by February and March 2006. Moreover, as Mr Starmer pointed out, it is impossible for the Secretary of State to sustain the argument for strict compartmentalisation when he had put in place the CORG, the purpose of which included the bringing together of “all departments and agencies involved in making and maintaining control orders … to keep all orders under frequent formal and audited review” and “to keep the prospect of prosecution under review”. In our judgment, Beatson J was right to find that there had been a breach by the Secretary of State of his MB duty to keep the question of possible prosecution under review, not in the sense that the decision to prosecute was one for him (for clearly it was not), but in the sense that it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extends to a duty to take reasonable steps to ensure that the prosecuting authorities are keeping the prospects of prosecution under review. The duty does not, however, extend to the Secretary of State becoming the prosecuting authority. The decision whether to prosecute lies elsewhere.

The potential relevance of the Belgian judgments was referred to by Beatson J in paragraph 287 of his judgment. He observed that intercept evidence from Spain and the Netherlands had been admitted in the Belgian proceedings and that, whilst the admissibility of intercept evidence obtained within this country is controlled by statute, intercept evidence from abroad is in principle admissible in an English trial: see Regina v P [2002] 1 AC 146. He further observed that whatever public interest factors may have been in play previously in this country, they may fall to be reconsidered in the light of what is in the public domain in Belgium. Also, he accepted (and it is not contradicted) that evidence derived from the Belgian proceedings has been used in the prosecution of three defendants in this country.

We have recorded that Beatson J based his conclusion that the Secretary of State was in breach of his continuing duty of review on the basis that such a breach “may arise as a result of the acts or omissions of the police or of the Secretary of State”. In our view, the correct analysis in the present case is that the breach arose from the omission of the Secretary of State himself to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration. That failure rendered nugatory the negative responses of the police at meetings of CORG when asked about prosecution.

It is at this point that we part company with the approach of the judge. Having identified the breach, he said (at paragraph 293):

“As far as the remedy is concerned, the question of whether the control order remains necessary is intimately bound up with the question of whether there is now evidence which gives rise to a realistic possibility of prosecuting E. In these circumstances it cannot be said that the failure on the part of the Secretary of State is technical.”

He added (at paragraph 313):

“… the Secretary of State’s failure to review the prospects of prosecuting E in the light of the Belgian judgments after they were received and translated means that his decision to maintain E’s control order was flawed and [I] would have quashed the control order on this ground.”

We tend to agree that the breach was not “technical”. However, that does not conclude the matter so far as relief is concerned. The function of the court on an appeal against the renewal of a non-derogating control order is that set out in section 10(4) of the 2005 Act, summarised at paragraph 14 of this judgment. As we see it, Beatson J concluded that the identified breach led inexorably to a finding of a flawed decision and to the quashing of the order.

It is to be observed that Beatson J, in the passage to which we have referred, stated the question as being “whether there is now evidence which gives rise to a realistic possibility of prosecuting E”. (our emphasis) We believe that the judge fell into error at that point. Put at their highest, the findings of the Belgian courts were not in themselves evidence capable of supporting a successful prosecution in this country. When properly considered, they may or may not enable investigators and prosecutors to assemble a case with a realistic prospect of success. However, even if the Secretary of State had acted diligently and expeditiously in relation to the Belgian judgments, we are satisfied that, again taken at their highest, they could not have given rise to a prosecution at any time material to this case. A prosecution in this jurisdiction must conform with domestic procedural and evidential requirements. Whilst the Belgian judgments undoubtedly sustain the Secretary of State’s “reasonable grounds for suspicion” under section 2(1)(a), they were not in themselves capable of being evidence in an English trial. At best, they were in a form which might ultimately enable investigators and prosecutors to adduce evidence from relevant and appropriate witnesses. We have seen no material to suggest that the material could realistically have been reduced to a form appropriate for prosecution within the relevant timescale. Indeed, our experience convinces us that it could not have been, although, of course, that is not a state of affairs necessarily set for perpetuity. This was not investigated before the judge in the way it was before Ouseley J in AF.

Not every breach of an obligation renders a subsequent decision flawed. For our part, we consider that the refusal of Ouseley J to quash a control order by reference to one of the breaches he found in AF was undoubtedly correct. In general terms, we agree with the approach adopted by Ouseley J at paragraphs 108-119 of his judgment. Ouseley J took the view that not every breach necessarily makes a control order a nullity and requires it to be quashed. In this he was influenced by the fact that the duty under section 8(2) (and we would add the implied duty under MB) is not a condition precedent to the making of the order.

In our judgment, the question must be asked whether a particular breach materially contributed to and vitiated the decision to make the control order. We have found that, in this case, the breach delayed the process of review by the police and the CPS but that, absent the breach, no different decision about the maintenance and renewal of the control order would have been taken or required at any time material to the matters we have to consider. By section 11(3) the appeal to this court lies only on a question of law. In our judgment, it was an error of law to hold that the breach justified the remedy. We consider that it was wrong to describe the Belgian judgments as “evidence” giving rise to a realistic possibility of prosecution (judgment paragraph 313). Further analysis of the consequences of the breach was required.

Moreover, and we put it more generally, the question, on section 10(4), is to decide whether the decision of the appellant was flawed. In deciding that, the duty to be considered is the duty to keep the prosecuting authorities informed and to take reasonable steps to ensure that they are keeping the controlled person’s conduct, with a view to his prosecution for an offence, under review. The duty is not to assume the role of prosecuting authority or to assume responsibility for every decision taken by that authority. It is not necessary, for the purposes of this appeal, to go on to consider what, if any, further remedies may be available to a controlled person who claims that the police are not performing their duties.

In addition to the alleged non-fulfilment of the Secretary of State’s duties under section 8(2) of the Act, Mr Starmer invited us to uphold Beatson J’s decision to quash the control order on other grounds, namely; (1) what he summarised as the lack of sufficient scrutiny by the judge of the individual obligations imposed on the respondent; (2) the lack of procedural fairness in the making and / or the renewing of the control order; and (3) - on behalf of S and the children – the alleged breaches of Convention articles 3 and 8 so far as E’s family was concerned. We propose to examine each of these argument in turn. We can do so relatively briefly.

Mr. Starmer advanced the lack of scrutiny argument as part of his submission that the judge had been wrong not to quash the control order on Convention article 8 grounds. The judge had held that the individual conditions imposed on the respondent were not a violation of article 8. Given that, on any view, article 8(1) was both engaged and breached, Mr Starmer submitted that it was for the Secretary of State to justify the conditions in the control order challenged by the respondent, and for the court to determine whether the justification under article 8(2) was adequate. The judge appeared to have determined the issue on the basis that the Secretary of State’s witnesses had not been challenged in cross-examination on the individual conditions. This, Mr. Starmer argued, was to “invert the burden of justification”. It was for the court to review all the evidence and to determine whether or not the Secretary of State had made out the case that the conditions imposed on the respondent were proportionate. The judge’s failure to adopt that course was a material error which vitiated his conclusion that the conditions imposed on the respondent were justified under Convention article 8(2).

For the Secretary of State, Mr. Tam accepted for the purposes of the appeal that at a hearing pursuant to section 3(10) of the 2005 Act, the court had to consider the necessity of each individual control order obligation, and that in the process of so doing, the court had to balance the “deference” due to the Secretary of State on operational matters with the need to give what he accepted had to be “intense scrutiny” of the necessity for each of the individual obligations imposed on the respondent. Mr. Tam also accepted that, in the case of particularly onerous or intrusive obligations, this process involved the exploration of alternative means of achieving the same result. This exercise, Mr. Tam submitted, the judge had undertaken. It was clear that the judge had both scrutinised the evidence put before him by the Secretary of State and had considered potential alternatives.

Mr. Tam disputed the proposition that the judge had “inverted the burden of justification”. What the judge could not do, of course, was to scrutinise evidence which was not before him, and it would not have been right for him to have considered alternatives to the conditions imposed in the absence of any evidence from the respondent that any such alternatives would be appropriate. All the judge had done, quite properly, was to draw attention to the limits imposed on his consideration of alternative obligations by the failure of the respondent’s advisers to place such alternatives before him.

We have already given our reasons for rejecting Mr. Tam’s purist argument in relation to the compartmentalisation of Convention articles 3, 5, 8 and 9 in the light of paragraph 19 of the decision of this court in JJ - see paragraph 58 above. In our judgment, the judge’s approach to the question of justification under article 8(2) cannot be criticised. The judge firstly set out the obligations contained in the control order; he then correctly identified the legal principles to be applied (see paragraphs 36 and 37 of his judgment); he then examined the obligations in paragraphs 125 to 129, before concluding, in paragraphs 294 to 297 that the individual obligations were necessary.

In paragraph 129 the judge makes the point that: -

This observation, it should be noted, occurs in a paragraphs in which the judge had accepted Mr. Starmer’s submission that the Secretary of State was under a duty to consider the necessity of the order, which included a duty to consider whether any of the obligations could be relaxed in the light of current circumstances, including the passage of time since the respondent was first subject to detention and control. When he reaches his conclusion on the point, the judge directs himself carefully by reference to the decision of this court in MB, and explains that he has considered whether there were alternative means of achieving the same result as the obligations imposed by the control order. He then concludes: -

In our judgment the judge was entitled, on the evidence available to him, to reach the conclusion that the justification provisions of article 8(2) were satisfied. We can see no error of principle or of law in his approach to article 8, and accordingly no basis upon which his judgment on this part of the case can be impugned.

In relation to this head, it was accepted by Mr. Starmer that this court was bound by its recent decision in MB. Whilst accepting that Mr. Starmer wished to reserve his position in relation to that case, we see no purpose in addressing the arguments on the point advanced by Mr. Starmer in the respondent’s notice and his skeleton argument in so far as they relate to Convention article 6. In his skeleton argument, however, Mr. Starmer enlarged the argument. He submitted that the judge should have found that Convention article 8 had been breached by the Secretary of State’s failure to consult E and his wife in relation to the terms of the control order. Mr. Starmer recognised (without conceding the point) that it was difficult for him to assert the practicability of any such consultation prior to the imposition of the control order. However, he submitted that procedural fairness required the Secretary of State to have a proper scheme of consultation in place once the control order had been made. This was both because it had a highly significant impact on the lives of E and his family, and because, without such a process of consultation, it was not possible for the Secretary of State to establish that the order was a proportionate interference with the family’s article 8 Convention rights.

The judge addressed this issue at various points in his judgment. In paragraphs 298 to 300, he concluded that there was no duty to consult prior to the control order being made on 14 March 2005. We agree, for the reasons the judge himself gives, and which we need not set out.

In paragraphs 301 to 306, the judge considered the position after 14 March 2005. He concluded that different considerations applied, and stated that whilst the Secretary of State had been open to representations, this was not the same as affording the opportunity to E and S to make them. In the event, however, the Secretary of State received representations and much information from E, S and the children and the judge held that the fact that they were not invited to make representations did not necessarily lead to the conclusion that the control order must be quashed. The judge added that in the light of his other reasons for quashing the order, it was not necessary for him to decide the point.

We have no difficulty in agreeing with what appears to be the judge’s provisional conclusion that, on the facts of this case, a breach by the Secretary of State of the duty (if there was one) to consult after the imposition of the control order does not amount to a reason for quashing the order. We reach that conclusion not only in the light of the evidence as to the manner in which the control order has been operated, but also in the light of our previous discussion of article 8 in the context of Mr. Starmer’s “lack of scrutiny” argument. Accordingly, any failure to consult does not, in our judgment, render the Secretary of State’s action in imposing and renewing the control order a disproportionate interference with the article 8 rights of E and his family.

The judge recognised what he described as “the considerable impact of the control order on S and the children”. Article 8 was plainly engaged. The judge dealt with the arguments on this point in paragraphs 276 to 280 of his judgment. His principal reason for refusing to quash the control order under article 8 as it affected the rights of S and the children is that contained in paragraph 280: -

In our judgment, in the circumstances of this case and in the light of the judge’s findings, it is impossible to impugn this statement.

In relation to article 3, the conclusion reached by the judge was that it was not engaged. We agree. We feel we can do no better than cite the three paragraphs of the judgment in which the judge deals with the point, with which we express our agreement for the reasons the judge himself gives: -

In his skeleton argument, Mr. Starmer sought to persuade us that the judge’s approach had not properly engaged with Keenan v United Kingdom, and that the judge had been wrong not to take into account the United Nations Convention on the Rights of the Child (UNCRC). We are unable to accept either submission. The judge plainly gave careful consideration to the principles underlying the decision of the ECtHR in Keenan, and whatever the value of UNCRC it does not have the force of law in England and Wales, and the judge was fully entitled to leave it out of account. Sympathetic as the judge was to the rights of S and the children, he was, in our view, plainly entitled to conclude that Convention article 3 was not engaged on the facts of the case, and that the position of S and the children, however unfortunate, did not amount to a reason for quashing the control order.

It follows that we allow the appeal.