Secretary of State for the Home Department v AP

Whether conditions which are proportionate restrictions upon article 8 rights to respect for private and family life can ‘tip the balance’ in relation to article 5 (which guarantees the right to liberty and security), ie whether they can be taken into account in holding that a control order is a deprivation of liberty when, absent those restrictions, it would not have been held to be such.

Whether the judge can take into account subjective and/or person-specific factors, such as the particular difficulties of the subject’s family in visiting him in a particular location, when considering whether or not a control order amounts to a deprivation of liberty.

Whether it was permissible for the Court of Appeal to interfere with the first instance judgment on the ground that the judge had relied on findings of fact in respect of article 5 which were inconsistent with his findings of fact in respect of article 8.

By way of introduction, Lord Brown noted that the majority in the House of Lords in Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385 held that deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest. The court’s task was to consider the concrete situation of the particular individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on him in the context of the life he might otherwise have been living. [1]

In relation to the first issue, Lord Brown considered that the answer was surely an obvious “yes”. If an article 8 restriction is a relevant consideration in determining whether a control order breaches article 5, then by definition it is capable of being a decisive factor – capable of tipping the balance. The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision maker – subject only to a challenge for irrationality which neither has nor could have been advanced in this case. [12]

Lord Brown was of the view that the Secretary of State was wrong to contend that, in assessing the weight to be given to the restrictive effects of a condition such as that imposed on AP here to reside in the Midlands, the judge should ignore everything that depends on the individual circumstances of the family – for example, on the facts of this case, that AP’s mother has never left London alone and that during term time, because of the children, Sunday is the only day the family can travel. By the same token that it is relevant that, whilst AP must live in the Midlands, his family are in London, so too it is relevant whether their circumstances are such that their distance away so disrupts contact between them as to cause or substantially contribute to AP’s social isolation. Plainly the family could not be allowed to thwart what would otherwise be an appropriate residential requirement by unreasonably failing to take opportunities open to them to visit AP and save him from social isolation. The correct analysis, however, is that in those circumstances it would be the family’s unreasonable conduct and not the residence condition which was the operative cause of the AP’s isolation. It is not suggested by the Secretary of State that AP’s family behaved unreasonably in failing to overcome more effectively the practical difficulties they faced in visiting AP on a more regular basis, only that their particular difficulties should have been ignored. That submission cannot be accepted. [15]

In relation to the third issue, having considered the relevant parts of the High Court’s judgment, Lord Brown held that there was no contradiction between them. [16] – [18]