Court of Appeal
Published June 1, 2007
Secretary of State for the Home Department v E
Before Lord Justice Pill, Lord Justice Wall and Lord Justice Maurice Kay
Judgment May 17, 2007
It was not a condition precedent to the making, maintaining and renewal of a
control order against a person that the Secretary of State for the Home
Department complied with his duty to consider and reconsider the realistic
prospect of successfully prosecuting that person for terrorism-related
offences.
The Court of Appeal so held in a reserved judgment, allowing the Home
Secretary’s appeal against the quashing by Mr Justice Beatson in the Queen’s
Bench Division (unreported [2007] EWHC 233 (Admin)) of a control order made
under section 2 of the Prevention of Terrorism Act 2005 against E.
Mr Robin Tam, QC and Mr Andrew O’Connor for the Home
Secretary; Mr Keir Starmer, QC and Mr Hugh Southey for E; Mr
Angus McCullough as special advocate.
LORD JUSTICE PILL, giving the judgment of the court, said that the Home
Secretary had made a nonderogating control order against E under section
2(1) of the 2005 Act and renewed the order 12 months later under section
2(6) of the Act.
The judge had allowed E’s appeal against the renewal, holding: (i) that the
restrictions in the control order amounted to a deprivation of liberty
within the meaning of article 5 of the European Convention on Human Rights
and (ii) that the Home Secretary’s failure sufficiently to consider the
prospect of prosecuting E meant that his continuing decision to maintain the
control order was flawed.
Article 5
Under the control order, E was required to live in his home and remain there,
save between 7am and 7pm. He was required to report to the monitoring
company by telephone each day on the first occasion he left the residence
and on the last occasion he returned.
Except by prior arrangement with the Home Office, he could not permit any
person to enter the residence and could not meet any person by prior
arrangement outside, other than certain persons such as his wife and
children and his legal representative. He was required to permit entry to
police officers and other authorised persons to verify his presence at home.
The starting point for considering whether a deprivation of liberty had
occurred, within the meaning of article 5.1 of the European Convention on
Human Rights, was to consider the physical liberty of the person, individual
liberty in the classic sense: Engel v The Netherlands (No 1) (Application
Nos 5100/71, 5101/71, 5102/71, 5354/72, 5370/72) ((1976) 1 EHRR 647,
paragraph 58).
The effect of the physical restraint had to be considered in the context of
restrictions applied when the restraint was not operating. The court was
concerned with the type, duration, effects and manner of implementation of
the restrictions: Guzzardi v Italy (Application No 7367/76) ((1980) 3 EHRR
333, paragraph 92).
E was deprived of the right to leave his home, and was detained in it, for 12
hours a day, the overnight hours. It was, however, his own home and garden
and he could live there with his wife and young family.
During the remaining 12 hours, the daytime hours, not only was there no
geographical restriction on where he might go but his starting point, his
home, was in the area he knew well as a result of having lived there for
four years.
In the court’s judgment, that degree of physical restraint upon liberty was
far from a deprivation of liberty in article 5 terms. That was illustrated
by Trijonis v Lithuania (Application No 2333/02) (unreported, March 17,
2005) 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 had also to be considered.
Combined with a degree of physical restraint, such restrictions might create a
breach of article 5 but it had to be kept in mind that it was the concept of
individual liberty in its classic sense which was in issue, a different
concept from, for example, respect for private and family life.
Intrusions into home and family life might contribute to a loss of liberty but
their impact and effect on liberty required analysis.
While the intrusion, under the control order, was potentially substantial, and
applied throughout the 24 hours, the court did not consider that it led to a
finding that the home thereby acquired the characteristics of prison
accommodation in which E was detained, as the judge had suggested. It
retained the attributes of a family home where domestic life might be
enjoyed at all times.
The court must also have regard to the manner in which restrictions were
implemented. Save that there were teething troubles, there was no evidence
that the restrictions were 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, was,
in the court’s judgment, established in the present case.
The court also took the view that E’s case was in material respects plainly
distinguishable from the cases in Secretary of State for the Home Department
v JJ ( The Times August 18, 2006; [2006] 3 WLR 866). Thus, to adopt the
words used by the Court of Appeal in paragraph 23 of JJ, the facts of E’s
case fell on the right side of the dividing line.
The prosecution point
It was axiomatic that a control order was only made when it was considered
that there was no reasonable prospect of successfully prosecuting the
subject of the order for a terrorism-related offence.
Section 8(2) of the 2005 Act provided that before making a control order the
Home Secretary had to consult the police about whether there was evidence
available that could realistically be used for the purpose of such a
prosecution, and in Secretary of State for the Home Department v MB ( The
Times August 18, 2006; [2006] 3 WLR 839) the Court of Appeal held that the
Home Secretary was under an implied duty to keep the decision to impose a
control order under review.
But the court was unpersuaded by Mr Starmer’s submission that consideration
and reconsideration of the realistic prospect of successful prosecution was
a condition precedent to the making, maintaining and renewal of a control
order.
It was section 2(1) which prescribed the conditions precedent to the exercise
of the power of the Home Secretary 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.
Not all duties required compliance as conditions precedent. When properly
considered in its statutory context the court was satisfied that the duty
under section 8(2) was not a condition precedent.
Neither was the implied duty to keep under review, as expounded in MB, save to
the extent that it related to the matters set out in section 2(1).
It was implicit in the Home Secretary’s continuing duty to review that the
Home Secretary had to do what he reasonably could to ensure that the
continuing review was meaningful.
In those circumstances, it had not been sufficient, when renewing the control
order, to rely on a letter from the senior officer of the Metropolitan
Police in the anti-terrorist branch to the effect that he was satisfied that
there was insufficient evidence to support a prosecution of E.
There could be no properly considered answer to the question about the
prospect of prosecution unless and until the police were provided with
certain judgments in the Belgian courts, which contained material
implicating E in terrorism-related offences. That had not occurred at the
time of the letter.
In the court’s judgment, the judge had been right to find that there had been
a breach by the Home Secretary of his MBduty 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 extended to a duty to take reasonable steps to ensure that the
prosecuting authorities were keeping the prospects of prosecution under
review.
The judge had concluded that that breach led inexorably to a finding that the
Home Secretary’s decision was flawed, for the purposes of section 10(4) of
the 2005 Act, and to the quashing of the order.
In the court’s judgment, the question had to be asked whether a particular
breach materially contributed to and vitiated the decision to make the
control order.
The Court of Appeal had found that, in the present case, the breach delayed
the process of review by the police and the Crown Prosecution Service 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 the court had to consider.
In the court’s judgment, it had been an error of law to hold that the breach
justified the remedy.
Solicitors: Treasury Solicitor; Birnberg Peirce & Partners; Special
Advocates Support Office, Treasury Solicitor.
