Lord Bingham of Cornhill
The effective appellant in this appeal is E, who challenges a non-derogating control order made against him on 12 March 2005 under the Prevention of Terrorism Act 2005. The order has since been varied on occasion but has been renewed and remains substantially in force. E challenges the order on two main grounds pertinent to this appeal: that the effect of the order is to deprive him of his liberty in breach of article 5 of the European Convention on Human Rights; and that the Secretary of State has breached his statutory duty in relation to consideration of criminal prosecution. These contentions succeeded at first instance before Beatson J, who quashed the order:  EWHC 233 (Admin),  HRLR 472. The Court of Appeal (Pill, Wall and Maurice Kay LJJ) allowed on appeal by the Secretary for State and set aside the judge's order:  EWCA Civ 459,  3 WLR 1.
In Secretary of State for the Home Department v JJ  UKHL 45, paras 6 to 11, I have given a general summary of the main provisions of the 2005 Act. I would refer to, but need not repeat, that summary.
E was born in Tunis on 24 July 1963. He arrived in the United Kingdom in 1994 and applied for asylum. That application was refused but he was granted exceptional leave to remain until 2005. He is married to S, who is some years younger and of Jordanian nationality. They have five children under the age of nine. S has been joined as a party to these proceedings, but she raises no separate issue which remains live for decision.
In December 2001 E was certified by the Secretary of State under section 21 of the Anti-terrorism, Crime and Security Act 2001. He was detained in HMP Belmarsh until his release on bail on 10 March 2005 on conditions similar to those of the control order made two days later. There is evidence, accepted by the judge, that since his detention in 2001 E's mental health has deteriorated and he now suffers from a depressive illness of some severity. The hearing before Beatson J was both a supervisory hearing under section 3 of the 2005 Act in relation to the making of the order and a hearing of E's appeal against the renewal of the order. The issues were essentially the same.
It was necessary for the judge to consider whether, on the material before him, the Secretary of State's decisions under section 2(1)(a) and (b) of the 2005 Act (reasonable grounds for suspecting involvement in terrorism and consideration of necessity to impose obligations for the protection of the public) were flawed. He held that they were not, being satisfied (para 82 of his judgment) that the low threshold of reasonable suspicion was crossed by a substantial margin on the basis of the open material alone. This conclusion makes it unnecessary to address, in this case, the question whether reliance on material not disclosed to the controlled person, is compatible with article 6(1) of the Convention, a question discussed in paragraphs 25 to 35 of my opinion in MB and AF  UKHL 46.
Deprivation of liberty
The obligations imposed on E by the control order made on 12 March 2005 and since renewed contains a number of obligations similar to those noted in JJ. Thus, for example, he must wear an electronic tag; he must reside at a specified address; he must report to a monitoring company each day on first leaving his residence and on his last return to it; the permission of the Home Office is required in advance (with name, address, date of birth and photographic evidence of identity supplied) for most visitors to the residence; he must obtain the agreement of the Home Office in advance to attend most pre-arranged meetings outside his residence; his residence is liable to be searched by the police at any time; and he is permitted to have no communications equipment of any kind save for one fixed telephone line and one or more computers, provided any computer is disabled from connecting to the internet.
The obligations imposed on E do, however, differ from those imposed on JJ and others in respects accepted by the courts below as material. The curfew to which he is subject is of twelve hours' duration, from 7.0 p.m. to 7.0 a.m., not eighteen hours. The residence specified in the order is his own home, where he had lived for some years, in a part of London with which he is familiar. By a variation of the order his residence is defined to include his garden, to which he thus has access at any time. He lives at his home with his wife and family, and Home Office permission is not required in advance to receive visitors under the age of ten. Five members of his wider family live in the area, and have been approved as visitors. He is subject to no geographical restriction during non-curfew hours, is free to attend a mosque of his choice, and is not prohibited from associating with named individuals. The judge found (para 231) that E does not lack a social network, goes to the mosque, takes his older children to school, picks them up, goes shopping and sees family members who live in the area.
Both the courts below reviewed the Strasbourg authority on article 5 and deprivation of liberty. I have endeavoured to summarise the effect of this authority in JJ, paras 12 to 19. I would refer to but need not repeat that summary.
Beatson J gave a lengthy and very careful judgment resolving a number of questions which are no longer germane to this appeal. He concluded (para 231) that very limited weight could be given to E's mental condition in the context of article 5. He regarded the order as likely to be renewed (para 233) for successive twelve month periods. He concluded (para 235) that E was "significantly less socially isolated that the controlled persons in the JJ cases". But he thought it of particular importance (para 238) that there was the same control over visitors to the home and meetings outside the home, and the same liability to spot checks and searches by the police at any time. It was these features which made the obligations particularly intense (para 240), somewhat as if he were accommodated in prison. The judge recognised (para 242) the case as more finely balanced than the JJ cases, but concluded that the cumulative effect of the restrictions was to deprive E of his liberty in breach of article 5 of the Convention.
The Court of Appeal (para 62) treated physical liberty as the starting point and the central issue, and judged (para 63) that the degree of physical restraint on E's liberty was far from a deprivation of liberty in article 5 terms. It discounted (para 64) the judge's analogy with prison accommodation and also (para 65) the deterrent effect of the requirement that visitors be approved in advance. It noted (para 69) the distinctions between the restrictions in this case and those in JJ, and concluded that this case was plainly distinguishable.
As noted in JJ, para 11, an appeal lies from the court of first instance in control order proceedings only on a point of law. This is a provision of some importance, since the legislation does not permit each successive court in the curial hierarchy to make its own independent evaluation. This is not a point which the Court of Appeal in this case specifically addressed. But it must, I think, be inferred that the Court of Appeal found the judge to have erred in law in failing to focus on the extent to which E was actually confined, here an overnight curfew of twelve hours, a period accepted by the Strasbourg authorities, as compared with the very much more stringent restriction in JJ. The matters which particularly weighed with the judge were not irrelevant, but they could not of themselves effect a deprivation of liberty if the core element of confinement, to which other restrictions (important as they may be in some cases) are ancillary, is insufficiently stringent. This is in my opinion a sound criticism of the judge's approach, and the Court of Appeal was right to regard this case, on its special facts, as distinguishable from JJ.
I would dismiss E's appeal on this point.
Section 8 of the 2005 Act, so far as material for present purposes, provides:
In the submission of E, it is a fundamental premise of the 2005 Act in general, and section 8 in particular, that where there are realistic prospects of prosecuting an individual against whom it is proposed to make a control order, he will indeed be prosecuted. There is strong support for this contention. In Secretary of State for the Home Department v MB  EWCA Civ 1140,  QB 415, para 53, the Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) described it as implicit in the scheme of the Act 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. In its judgment in the present case (para 73) the Court of Appeal described it as "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. Reference was made to a number of strong ministerial assurances in Parliament to this effect. The Secretary of State in his written case accepts that "The scheme of the [Act] is that control orders should only be made where an individual cannot realistically be prosecuted for a terrorism-related offence". Thus there can be no doubt about the governing principle. Nor in my opinion can there be doubt about its importance, since the control order regime is not intended to be an alternative to the ordinary processes of criminal justice, with all the safeguards they provide for those accused, in cases where it is feasible to prosecute with a reasonable prospect of success.
It was argued for E before the judge that compliance by the Secretary of State with his duty under section 8(2) was a condition order in a case falling within section 8(1) (see para 245 of Beatson J's judgment). The judge rejected this argument, holding that the conditions precedent to the making of a control order are set out in section 2(1), this condition could have been included but was not, and it was not necessary to construe section 8(2) as including this condition. The Court of Appeal also rejected it for very much the same reason (para 87 of the Court of Appeal judgment). I agree. Section 2(1) of the Act prescribes the circumstances in which the Secretary of State may make a non-derogating control order and compliance with the section 8(2) duty is not included as a qualifying condition. It is nonetheless true, as was urged for E, that section 8(2) is expressed in strong mandatory terms: "Before making, or applying for the making of, a control order against the individual, the Secretary of State must ....." Plainly this duty is to be taken seriously. On the seeking by the Secretary of State of permission from the court to make a non-derogating control order under section 3(1)(a) of the Act or, where an order has been referred to the court under section 3(3)(a), I would expect the court, as a matter of strict routine, to seek to be satisfied that the section 8(2) duty has been complied with and, if it has not, to require very convincing reasons for that omission.
In submission to the House, it was argued for E that the absence of a realistic prospect of prosecution is a condition precedent to the making by the Secretary of State of a non-derogating control order. Thus the Secretary of State must not only consult under section 8(2), in a case falling within section 8(1), but must be given to understand that it is not feasible to prosecute with a reasonable prospect of success. Unless this was so, it was argued, it could not be "necessary" to impose obligations under a control order, since it would not be shown that the public could not be protected by arresting, charging and prosecuting the individual. This more ambitious submission must also fail, for the reason given in the last paragraph. But there are in my view strong practical reasons for rejecting it. The situation is, by definition, one in which the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity (section 2(1)(a)). He must consider 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 (section 2(1)(b)). There may be a need to act with great urgency (section 3(1)(b)). The potential risk may be very great. It is one thing to require the Secretary of State to consult, as section 8(2) does in cases falling within section 8(1), which is the great majority of cases. But it is quite another to require him to obtain a clear answer: this is something the chief officer of police is unlikely to be in a position to give, he himself being subject to a duty (section 8(5)) to consult the relevant prosecuting authority which will in turn require time to consider the matter, and very probably to seek the advice of counsel. The condition precedent contended for would have the potential to emasculate what is clearly intended to be an effective procedure, and cannot be taken to represent the intention of Parliament.
I have addressed this matter in some detail, because the general point raised is one of importance. But it has no bearing on the control order made in this case at the time it was made. This is because the judge made a very clear finding, not now challenged, that the Secretary of State did consult the chief officer of police, who did consult the Crown Prosecution Service, concerning the prospect of successful prosecution before the order was made, and the advice he received was clearly negative (see paras 251, 254, 258, 266). The consultation took place before the Act was passed, but such consultation was effective by virtue of section 8(6).
The thrust of E's argument before the House was directed not to lack of consultation before the order was made on 12 March 2005 but on the Secretary of State's failure to take steps open to him to ensure that the possibility of prosecution was kept under effective review thereafter. Under section 8(4) of the Act the duty of keeping the prospect of prosecution under review is laid on the chief office of police, in conjunction (where he considers it appropriate: s.8(5)) with the relevant prosecuting authority. In its judgment in MB, however, in paragraph 44, the Court of Appeal held it to be implicit in the Act
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. A purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed.
Beatson J followed this ruling in the present case (para 282). It was argued for the Secretary of State in the Court of Appeal that the Secretary of State, having consulted the chief of police at the outset, need do no more thereafter than make periodic enquiry whether the prospect of prosecution had increased (Court of Appeal, para 96). But the Court of Appeal held (para 97) that more was called for:
Once it is accepted that there is a continuing duty to review pursuant to MB's case, 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 .... 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 Secretary of State, it is understood, now accepts the correctness of this approach, which I would respectfully endorse.
The materiality of this point arises in this way. On 30 September 2003 first instance judgments were given by a Belgian court, affirmed on appeal in Belgium on 21 February 2005. The effect of the judgments was to implicate E in terrorist-related activity. The Secretary of State learned of these judgments in September 2005, after the control order had been made against E but before it was renewed. He received copies of the judgments in November 2005, and English translations became available in January 2006. Before renewal of the order in March 2006 the chief officer of police informed the Secretary of State that there was insufficient evidence to prosecute. But neither the police nor the CPS has received copies of these judgments. They have, however, as the judge found (para 286), been part of the open evidence relied on by the Secretary of State since September 2006, and were now at the core of the Secretary of State's open national security case against E. It is pointed out on behalf of E that the Belgian judgments rested in part on intercept evidence which, because obtained abroad, would be admissible in an English court, that the availability of this evidence in the public domain could affect the judgment on whether it was in the public interest to prosecute, and that some of the Belgian material had already been relied on to prosecute defendants in this country.
The judge concluded (para 293) that the Secretary of State's failure to consider the impact of the Belgian judgments on the prospects of prosecuting E meant that his continuing decision to maintain the control order was flawed. The breach was not a technical one (para 293), and the judge would have quashed the order on this ground were he not already quashing it for incompatibility with article 5 (para 310). The Court of Appeal found (para 97) that the judge had been right to find a breach by the Secretary of State of his MB duty to keep the possibility of prosecution under review, even though the decision whether or not to prosecute was clearly not his. The breach (para 99)
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.
But although tending to agree with the judge that the breach was not technical (para 102), the Court of Appeal differed from him on remedy. It was satisfied (para 103) that even if the Secretary of State had acted diligently and expeditiously in relation to the Belgian judgments they could not have given rise to a prosecution at any time material to this case. The question to be asked (para 105) was whether a particular breach had materially contributed to and vitiated the decision to make the control order, and the judge had erred in law in holding without further analysis that the breach justified the remedy of quashing the order.
Counsel for E criticised the Court of Appeal's reasoning on this point, but I do not think its approach was wrong in principle. It was certainly regrettable that the Belgian judgments were not made available promptly to the appropriate authorities, perhaps suggesting that the duty of continuing review by the Secretary of State was not appreciated before the Court of Appeal's judgment in MB in August 2006 or, if appreciated, was not treated with the seriousness which its importance deserved. But I do not for my part think that the Court of Appeal's reasoning in this case can be faulted. If in any case it appeared that the duty to consult under section 8(2) or the duty to keep the prospect of prosecution under review had been breached, and also that but for the breach the individual could and should properly have been prosecuted with a reasonable prospect of success, there would be strong grounds for contending that the control order was not or was no longer necessary and that the Secretary of State's decision to make or maintain it was flawed. It might then be appropriate to quash the order. But the House cannot hold, on the material before it, that that condition was met in this case, and the order should not have been quashed.
On this point also I would dismiss E's appeal.
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and I gratefully adopt his exposition of the facts and issues. For the reasons which I gave in my opinion in the case of Secretary of State for the Home Department v JJ  UKHL 45, I agree that the submission that the control order deprived E of his liberty fails. I also agree, for the reasons given by my noble and learned friend, that the Secretary of State did not fail to comply with the provisions of section 8 of the Act. The appeal must therefore be dismissed.
Baroness Hale of Richmond
For the reasons given by my noble and learned friends, Lord Bingham of Cornhill and Lord Carswell, I agree that this appeal should be dismissed on both points.
As to the first issue, whatever the point at which the cumulative effect of the restrictions imposed in a control order crosses the boundary into deprivation of liberty, as in my view it did in the JJ cases, that point is not reached in this case. The starting point in any consideration of deprivation of liberty is the "core element" of confinement. The length of the curfew in this case is within the range which Strasbourg has accepted as merely restricting liberty. Nor is there anything to make it more severe: the appellant is confined to his own home with his wife and children; other family members and the children's friends were allowed to visit. These factors greatly reduce the extent to which he is cut off from society even during the curfew hours. Outside those hours, he is not subject to any geographical restriction and can attend the mosque of his choice. He does have to get Home Office approval for visitors to his home and for pre-arranged meetings outside it and his home is subject to intrusive searches at any time. These may call in question certain other convention rights but do not, on their own, turn his "concrete situation" into one in which he is deprived of his liberty.
As to the second issue, a control order must always be seen as 'second best'. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course. That is why section 8 was inserted in the 2005 Act. But there are practical difficulties: the Secretary of State does not control the prosecution process. The police investigate and the Crown Prosecution Service decide whether or not to prosecute. There are very good reasons for this division of responsibility: it injects an important element of independence and objectivity into the decision to prosecute. But it makes the task of the Secretary of State, in considering the alternative of prosecution, all the more difficult. She does not have the power to choose between the two.
It is noteworthy that section 8 does not impose a duty upon the Secretary of State to consider whether there is a reasonable prospect of a successful prosecution; still less does it require her to have formed the view that there is no such prospect. All it does is require her to consult. I agree, for the reasons given by my noble and learned friends, that compliance with the duty to make inquiries of the police under section 8(2) is not a condition precedent to making a control order; nor is the receipt of a negative reply to those inquiries. But both are highly relevant factors to be taken into account by the Secretary of State when considering whether a control order is 'necessary'. The court, in considering whether the Secretary of State's decision was flawed, will be reluctant to confirm that decision if the requirements of section 8 have not been complied with or, indeed, if inquiries reveal that there is a reasonable prospect of a successful prosecution.
Nor does section 8 impose an express duty upon the Secretary of State to keep the matter under review. But, as the Court of Appeal held in Secretary of State for the Home Department v MB  EWCA Civ 1140,  QB 415, para 44, it is implicit in the Act that the Secretary of State must keep the decision to impose a control order under review; and, as the Court of Appeal held in this case, that duty involves her, not only in consulting the police from time to time, but also in sharing such information as is available to her, but may not have reached the police, which is relevant to the prospects of a successful prosecution. These are all matters which the court will wish to consider in deciding whether the decision to make or maintain the control order was flawed.
On the facts of this case, however, I agree that the order should not have been quashed on this ground; still less on the ground that it constituted a deprivation of liberty.
The issues argued in this appeal were, first, whether the effect of the control order was to deprive the appellant E of his liberty within the meaning of article 5 of the European Convention on Human Rights and, secondly, whether the Secretary of State was in breach of his statutory duty in relation to consideration of criminal prosecution.
On the first issue, I held in Secretary of State for the Home Department v JJ  UKHL 45 that the control orders relating to the appellants in that appeal did not have the effect of depriving the appellants of their liberty. The reasons which I set out in my opinion given in that appeal, to which I would refer, apply also in the present case, taking proper account of E's circumstances. I would accordingly hold that E has not been deprived of his liberty.
On the second issue, the statutory duty of the Secretary of State under section 8(2) of the Prevention of Terrorism Act 2005 is, as my noble and learned friend Lord Bingham of Cornhill has observed in paragraph 15 of his opinion, one to be taken seriously. Nevertheless, as Beatson J and the Court of Appeal have correctly held, it does not constitute a condition precedent to the making of a non-derogating control order. For the reasons given by Lord Bingham in paragraphs 15 and 16 of his opinion, I also consider that the absence of a realistic prospect of prosecution is not a condition precedent to the making of such an order.
In my opinion the judge and the Court of Appeal were plainly right in their conclusion that it is the duty of the Secretary of State to keep the decision to impose a control order under review. I agree with the statement in paragraph 97 of the Court of Appeal's judgment given by Pill LJ:
Once it is accepted that there is a continuing duty to review pursuant to MB's case, 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.
The Court of Appeal found in relation to the fulfilment of that duty (para 97):
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.
In paragraph 99 the court said:
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 the CORG when asked about prosecution.
Again, I agree.
The Court of Appeal went on to hold that not every breach of an obligation renders a subsequent decision flawed. It was of the opinion that the Belgian judgments could not have given rise to a prosecution at any time material to this case. Like Lord Bingham, I do not think that its reasoning can be faulted. It was therefore correct to hold that the control order should not have been quashed.
I accordingly would hold that the appellant has not made out either of the grounds on which he has based his case before the House and dismiss the appeal.
Lord Brown of Eaton-under-Heywood
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and like him would dismiss the appeal on both points. On the first point-as to whether the control order involved a deprivation of E's liberty-I would do so for the reasons I have given in my opinion in JJ's appeal. On the second point I agree with all that Lord Bingham says and cannot usefully add to it.
Ben Emmerson QC, Raza Husain & Helen Law (Instructed by Birnberg Peirce & Partners) for appellants.
Ian Burnett QC, Philip Sales QC, Tim Eicke, Cecilia Ivimy & Andrew O'Connor (instructed by Treasury Solicitor) for respondents.
David Pannick QC & Alex Bailin (instructed by Liberty) for intervener, National Council for Civil Liberties.
Michael Supperstone QC & Judith Farbey (instructed by Special Advocates' Support Office) for Special Advocates.
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