House of Lords

Published November 5, 2007

Secretary of State for the Home Department v JJ and Others

Before Lord Bingham of Cornhill, Lord Hoffmann, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches October 31, 2007

Non-derogating control orders made by the Secretary of State for the Home Department, which imposed on the controlled persons an 18-hour curfew and closely restricted their social contacts, amounted to a deprivation of liberty, contrary to article 5 of the European Convention on Human Rights, and were accordingly unlawful.

The House of Lords (Lord Hoffmann and Lord Carswell dissenting) so held when dismissing the Home Secretary’s appeal from the Court of Appeal (Lord Phillips of Worth Matravers, Lord Chief Justice, Sir Anthony Clarke, Master of the Rolls, and Sir Igor Judge, President) (The Times August 18, 2006; [2007] QB 446) which affirmed the decision of Mr Justice Sullivan ([2006] EWHC 1623 (Admin)) quashing nonderogating control orders made under the Prevention of Terrorism Act 2005 in respect of JJ, GG, KK, HH, NN and LL.

Each order, inter alia, imposed an 18-hour curfew within the individual’s one-bedroom flat and otherwise confined him to a designated area outside; he was to be tagged and monitored, to permit police searches of his flat at any time and to socialise inside or outside the flat only with persons given prior Home Office authority; other obligations prevented further external contacts.

Mr Ian Burnett, QC, Mr Philip Sales, QC, Mr Tim Eicke, Ms Cecilia Ivimy and Mr Andrew O’Connor for the Home Secretary; Mr Manjit Gill, QC and Mr Barnabas Lams for JJ; Mr Ben Emmerson, QC and Mr Raza Husain for GG and KK; Mr Edward Fitzgerald, QC, Mr Keir Starmer, QC and Ms Stephanie Harrison for HH and NN; Mr Michael Fordham, QC and Mr Tom Hickman for JUSTICE, intervening in JJ; Mr Michael Supperstone, QC and Ms Judith Farbey, special advocates, made no submissions; LL did not appear and was not represented.

LORD BINGHAM said that in ordinary parlance a person was taken to be deprived of liberty when locked up in a prison cell or its equivalent. That commonsense approach was reflected in the Convention jurisprudence which recognised that article 5.1, in proclaiming the right to liberty, contemplated individual liberty in its classic sense of physical liberty of the person.

It also recognised the distinction between deprivation of liberty in article 5 and restriction of movement and a person’s freedom to choose his residence in article 2 of Protocol 4 to the Convention, a provision not ratified by the United Kingdom but relevant in interpreting the scope of the article 5 prohibition.

That prohibition had an autonomous, Council of Europe-wide meaning and national courts had to look to the Strasbourg jurisprudence for guidance. A series of Strasbourg decisions established that 24-hour house arrest was regarded as tantamount to imprisonment and so a deprivation of liberty.

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