[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Secretary of State for the Home Department v JJ & Ors [2006] EWHC 1623 (Admin) (28 June 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/1623.html Cite as: [2006] EWHC 1623 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF THE PREVENTION OF TERRORISM ACT 2005

		Royal Courts of Justice Strand London WC2
		28th June 2006

MR JUSTICE SULLIVAN:

Introduction

1. On 12th April 2006 I gave judgment in the case of Secretary of State v MB [2006] EWHC 1000 (Admin). MB was the first hearing under section 3(10) of the Prevention of Terrorism Act 2005 ("the Act") in relation to a non-derogating control order made by the applicant under section 2(1) of the Act. I decided under section 3(13) of the Act that the control order was to continue in force, but granted a declaration pursuant to section 4(2) of the Human Rights Act 1998 ("the 1998 Act") that the procedures in section 3 of the Act relating to the supervision by the court of non-derogating control orders made by the Secretary of State were incompatible with the respondents' right to a fair hearing under Article 6(1) of the European Convention on Human Rights ("the Convention"). I gave the Secretary of State permission to appeal, and the appeal is due to be heard by the Court of Appeal in the week beginning 3rd July 2006.
2. The orders made by the applicant under section 2(1) of the Act against the six respondents, GG, HH, JJ, KK, LL and NN, were the subject of a directions hearing on 25th May 2006. At that time it was known that there would be an appeal against the decision in MB, but it was not known when the appeal would be heard. In an ideal world it would have been desirabLe to adjourn the hearing under section 3(10) of the Act in respect of these six cases pending the Court of Appeal's judgment in MB. However, it is not an ideal world. The six respondents all continue to be subject to the severe obligations imposed in the control orders made against them, and the applicant needs to know whether these, and other control orders containing the same or similar obligations, are lawful. It is, perhaps, unfortunate that MB will be the first case under the Act to be considered by the Court of Appeal, because the obligations imposed upon MB (see paragraph 18 of the judgment) were far less restrictive than those imposed upon the six respondents in the present case, and were not representative of the obligations imposed by most of the non-derogating control orders. Annex 2 to the First Report of Lord Carlile of Berriew QC, the Independent Reviewer appointed under section 14 of the Act, contains the pro forma of the Schedule of Obligations "imposed on most but not quite all of the controlees so far" (see paragraph 42 of his report). Although there are minor variations between the six control orders in the present case, the orders are for all practical purposes identical, and they are in the same terms as those set out in the pro forma. The obligations imposed by the control orders made against the respondents are set out in Annex I to this judgment.
3. Lord Carlile concluded in respect of the pro forma obligations:

"On any view those obligations are extremely restrictive. They have not been found to amount to the triggering of derogation, indeed there has been no challenge so far on that basis — but the cusp is narrow.

The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet. And a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably."

4. As mentioned in MB (see paragraph 4) the Act distinguishes between two types of control order: derogating control orders, which impose obligations which are incompatible with the controlee's right to liberty under Article 5 of the Convention, and non-derogating control orders. The former are made by the court, and may be made only when the court is satisfied (inter alia) that there is a designated derogation from the whole or part of Article 5 under section 14 of the 1988 Act: see section 4(3)(c) of the Act. The latter are made by the Secretary of State.
5. The Statutory Framework is set out in paragraphs 2-16 of the judgment in MB, and it is unnecessary to repeat the whole of it here. The following provisions are of particular importance for present purposes. Section 1(2) states who shall be entitled to make what type of control order:

"(2) The power to make a control order against an individual shall be exercisable--

(a) except in the case of an order imposing obligations that are incompatible with the individual's right to liberty under Article 5 of the Human Rights Convention, by the Secretary of State; and

(b) in the case of an order imposing obligations that are or include derogating obligations, by the court on an application by the Secretary of State."

6. Subsections 1(3)-(8), which deal with the obligations that may be included in a control order, apply to control orders made under both paragraph (a) and paragraph (b) in subsection 1(2).
7. Subsection 1(10) defines a derogating obligation:

"'derogating obligation' means an obligation on an individual which--

(a) is incompatible with his right to liberty under Article 5 of the Human Rights Convention; but

(b) is of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order;

'designated derogation' has the same meaning as in the Human Rights Act 1998 (c. 42) (see section 14(1) of that Act); ..."

8. Section 2 deals with the making of non-derogating control orders by the Secretary of State. Subsection 2(3) states that:

"A control order made by the Secretary of State is called a non-derogating control order."

That definition is repeated in section 15(1), a "'non-derogating control order' means a control order made by the Secretary of State." Section 15(1) also defines a derogating control order:

"'derogating control order' means a control order imposing obligations that are or include derogating obligations;"

9. As explained in MB, non-derogating control orders once made by the Secretary of State under section 2 and derogating control orders once made by the court under section 4, then go their wholly separate and very different procedural ways. In particular, in the former case the court's role is supervisory and the standard of proof is a reasonable suspicion, whereas in the later case the court decides whether to confirm its order on the balance of probabilities. Subsection 4(7)(d) provides that:

"(7) At the full hearing, the court may confirm the control order (with or without modifications) only if--

...

(d) the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order."

10. Unlike a non-derogating control order, which has effect for a period of 12 months, but may be renewed by the Secretary of State for further periods of 12 months (see subsections 2(4) and 2(6)), a derogating control order ceases to have effect after six months, but may be renewed by the court for further periods of six months (see subsections 4(8) and (9)). The power conferred by section 7 of the Act to modify the obligations in control orders is careful to maintain the distinction between non-derogating and derogating obligations:

"(3) The Secretary of State may not make to the obligations imposed by a control order any modification the effect of which is that a non-derogating control order becomes an order imposing a derogating obligation."

11. Article 5(1) of the Convention — the Right to Liberty and Security — provides that:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..."

12. In their responses to the making of the control orders, the respondents argued that the orders were unlawful on a number of grounds. Pre-eminent among those grounds was the submission that the cumulative impact of the obligations imposed by the orders amounted to a deprivation of the respondents' liberty in breach of Article 5(1). It was therefore contended that the Secretary of State had made a derogating control order which he had no power to do (and which the court had no power to do in the absence of a designated derogation).
13. The other grounds raised by the respondents included submissions that:

(1) proceedings under section 3 of the Act were criminal, not civil, for the purposes of Article 6 of the Convention;

(2) if the procedures under section 3 were civil, not criminal, they were not compliant with the fair hearing obligation in Article 6(1);

(3) the exclusionary rule (in respect of evidence obtained by torture) laid down by the House of Lords in A and others v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249, [2005] UKHL 71, should be applied to the evidence relied on by the applicant in support of the orders;

(4) the power conferred by section 1(3), when read together with section 2(9), was so broad and ill defined as to be incompatible with the requirement under the Convention for legal certainty, as explained by Lord Bingham of Cornhill in R (Gillan and another) v Commissioner of Police of the Metropolis [2006] 2 WLR 537, [2006] UKHL 12, paragraphs 32 and 33;

(5) section 2(9) of the Act was incompatible with the requirement in Article 8 that any interference under Article 8(2) with the rights protected by Article 8(1) must be rationally connected to the promotion of a legitimate aim;

(6) in addition to interfering with the respondents' rights under Article 8(1) of the Convention, the control orders also interfered with their rights under Articles 9(1), 10(1), and 11(1) and Article 1 of Protocol 1 to the Convention.

14. In addition to the factual disputes raised in the respondents' responses to the applicant's cases against them, submissions were also made that there had been inadequate disclosure on the part of the applicant, and in the case of LL an issue was raised as to identity. It was obvious that it would be impossible (even if it was desirable in advance of the Court of Appeal's decision in MB) to resolve all of these issues at the section 3(10) hearing that was then listed for the week commencing on 20th June, particularly since the resolution of some of the factual disputes would probably require the court to consider closed evidence with the assistance of the special advocates.
15. I therefore decided at a directions hearing on 5th May 2006 that the matters most suitable for determination at the hearing on 20th June would be (i) issues of law, (ii) which could be addressed as preliminary issues either on the basis of the documents alone without the need for any factual enquiry, or on the basis of facts which could be readily agreed, (iii) which had not been considered in MB, and (iv) which would be capable, if the respondents were successful, of providing them with a remedy at an early stage.
16. I asked the parties to provide short notes for the further directions hearing on 25th May identifying the arguments which they considered would be appropriate for determination as a preliminary issue or issues. It was common ground that the Article 5(1) issue could, and should, be determined at the earliest possible opportunity. It did not arise in MB (see paragraph 36), was potentially decisive as to the validity of the control orders made against the respondents, and was capable of being decided without the need for significant additional factual information, although in an ideal world detailed evidence describing the "concrete situation" of each respondent subject to the obligations in the orders would have been available to the court (see further below).
17. Of the other issues raised by the respondents, it was recognised that issues (1) and (2) had been dealt with in MB. Although there was an attempt to revive issue (1), upon the basis that the Court of Appeal's decision in A and others v Secretary of State for the Home Department [2004] QB 335, [2002] EWCA Civ 1502 was not binding upon me (see paragraphs 37 and 38 of MB), I decided that it would not be appropriate to allow submissions in respect of issue (1). I do recognise, however, the force of the respondents' submissions that given the much greater severity of the obligations in these six cases they would be a better, and certainly a more representative, test of the criminal/civil issue under Article 6 (see paragraph 39 of MB).
18. I concluded that issues (3) and (4) were not suitable for determination as preliminary issues, and even if they were, they could not be properly considered in the time available. Initially I considered that issue (5) could be dealt with as a preliminary issue. Having read the respondents' skeleton arguments I concluded that the effect of section 2(9) was far better considered in the wider context of issue (4), and to the extent that it was not, it could (if so advised) be raised in the respondents' skeleton argument in the MB appeal, since it could be said to bear upon the court's ability to effectively supervise control orders made by the Secretary of State under section 2.
19. It was common ground that, in principle, the control orders in these six cases were capable of interfering with the respondents' rights under Articles 8, 9, 10 and 11, and Article 1 of Protocol 1 of the Convention. It was further agreed that whether there was any interference with those rights in any particular case, and if so whether that degree of interference was justified, could only be determined after consideration of the factual evidence in each case.
20. I therefore heard the parties' submissions in relation to the Article 5 issue only at the hearing between 20th and 22nd June. I should place it on record that the parties expressly reserved their positions in respect of all the other issues, including a number of subsidiary issues which are not specifically mentioned above.

Article 5

21. The fundamental importance of Article 5 is not in dispute. In Kurt v Turkey (1998) 27 EHRR 373 the European Court of Human Rights said in paragraph 122:

"The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness. This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5(1) circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom."

22. In A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 62, Lord Hope said in paragraphs 100-101 of his speech:

"100 It is impossible ever to overstate the importance of the right to liberty in a democracy. In the words of Baron Hume, Commentaries on the Law of Scotland respecting Crimes, 4th ed (1844), vol 2, p 98:

'As indeed it is obvious, that, by its very constitution, every court of criminal justice must have the power of correcting the greatest and most dangerous of all abuses of the forms of law,--that of the protracted imprisonment of the accused, untried, perhaps not intended ever to be tried, nay, it may be, not informed of the nature of the charge against him, or the name of the accuser.'

These were not idle words. When Hume published the first edition of his Commentaries in 1797 grave abuses of the kind he described were within living memory. He knew the dangers that might lie in store for democracy itself if the courts were to allow individuals to be deprived of their right to liberty indefinitely and without charge on grounds of public interest by the executive. The risks are as great now in our time of heightened tension as they were then.

101 There is a third principle which the court must also recognise when it is called upon to perform its central function, which is to strike the balance between the public interest and the right to liberty. It is that the right to liberty belongs to each and every individual. Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms enshrines this right, and section 1 of the Human Rights Act 1998 has made it part of our law. Article 5(1) defines the only situations in which a person may be deprived of his liberty, and it begins with the word 'Everyone'. The right to liberty is to be enjoyed without discrimination, as article 14 of the Convention makes clear. The basic principle is that the right belongs to everyone, whoever they may be and wherever they may have come from, who happen to be within the contracting state's territory. Everyone enjoys this right. It is a right, not a privilege."

23. In paragraph 222 of her speech, Baroness Hale said:

" ... neither the common law, from which so much of the European Convention is derived, nor international human rights law allows indefinite detention at the behest of the executive, however well-intentioned. It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely. Only the courts can do that and, except as a preliminary step before trial, only after the grounds for detaining someone have been proved. Executive detention is the antithesis of the right to liberty and security of person."

24. In R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12, [2006] 2 WLR 537, the House of Lords had to consider whether the exercise of stop and search powers under the Terrorism Act 2000 had amounted to a deprivation of liberty in breach of Article 5(1). Having set out so much of Article 5(1) as was relevant to the appeal, Lord Bingham (with whom the remainder of their Lordships agreed) said in paragraph 21 of his speech:

"It is unnecessary to recite the other sub-heads of exception: they provide an exhaustive list of the cases in which, in accordance with a procedure prescribed by law, a person may be deprived of his liberty (Ireland v United Kingdom (1978) 2 EHRR 25, 87, para 194), but none of the other exceptions is capable of applying here. Reference must, however, be made to article 2 of the Protocol No 4 to the Convention. This Protocol has not been ratified by the United Kingdom, but has been relied on by the European Court when considering what amounts to a deprivation of liberty under article 5. Article 2 of the Fourth Protocol is entitled 'Freedom of movement' and provides in para 1: 'Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement ...'"

He continued in paragraph 24:

"The task of the House is eased by the substantial agreement of the parties on the correct approach in principle. Perhaps the clearest exposition of principle by the Strasbourg court is to be found in Guzzardi v Italy (1980) 3 EHRR 333, an exposition repeatedly cited in later cases. The case concerned an applicant who, pending his criminal trial, was subject for over 16 months to a form of internal exile on an island off the coast of Sardinia. He was specially supervised in an area of 2.5 square kilometres. He was held to have suffered a deprivation of his liberty. The Commission reached this conclusion (para 90) because of the small area in which the applicant had been confined, the almost permanent supervision to which he had been subject, the all but complete impossibility of his making social contacts and the length of his enforced stay. The Italian Government challenged this analysis on a number of grounds (para 91). The court observed, at paras 92-93:

'92. The court recalls that in proclaiming the 'right to liberty', paragraph 1 of article 5 is contemplating the physical liberty of the person; 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.

'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 continued, in para 95:

'The Government's reasoning (see para 91 above) is not without weight. It demonstrates very clearly the extent of the difference between the applicant's treatment on Asinara and classic detention in prison or strict arrest imposed on a serviceman. 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 went on to review the special features of the applicant's situation, and held:

'It is admittedly not possible to speak of 'deprivation of liberty' on the strength of any one of these factors taken individually, but cumulatively and in combination they certainly raise an issue of categorisation from the viewpoint of article 5. In certain respects the treatment complained of resembles detention in an 'open prison' or committal to a disciplinary unit.'

25. It is accordingly clear, as was held in HL v United Kingdom (2004) 40 EHRR 761, para 89, that

'in order to determine whether there has been a deprivation of liberty, the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question.'"

25. In paragraph 23 of his speech Lord Bingham referred to the mass of authority to which the House had been referred, and pointed out that since the Strasbourg jurisprudence is closely focussed on the facts of particular cases, it is "perilous to transpose the outcome of one case to another where the facts are different." In the present case the parties' skeleton arguments industriously referred to a mass of authority which dealt with the question whether there had been a deprivation of liberty in a variety of contexts, some of them very far removed from the facts of these six cases. Thus, a decision that there has, or has not, been a deprivation of liberty in the context of a bail condition, imposed following a guilty plea and pending sentence, or detention for a brief period during the course of a search or criminal investigation, is unlikely to be of any assistance in resolving this preliminary issue.
26. As Lord Steyn observed in R (Daly) v Home Secretary [2001] UKHL 26, [2001] 2 AC 532, "In law context is everything" (see paragraph 28). It was common ground that the most helpful authorities were those in which the European Court of Human Rights, or the Commission, had to consider where to draw the line between house arrest for 24 hours each day and curfews for lesser periods in the context of preventive measures imposed, often for lengthy periods, on persons who were suspected of various kinds of serious criminal activity. A preliminary consideration of these authorities narrows the area of potential dispute between the parties. It is common ground that, at the upper end of the spectrum, house arrest for 24 hours per day, seven days per week does amount to a deprivation of liberty: see NC v Italy (11th January 2001), Mancini v Italy (2nd August 2001), Vachev v Bulgaria (8th July 2004), Nikolova v Bulgaria (No 2) (30th September 2004) and Pekov v Bulgaria (30th March 2006). In the last of these cases the Bulgarian government argued that:

"The applicant's house arrest had been de facto fictitious, as the authorities responsible for monitoring compliance with it had been in Burgas, whereas he had been in Sofia for medical treatment. Since the end of 1996 the applicant has had the ability to change and leave his place of abode without any control."

The court did not accept this argument:

"73. The Court notes that the applicant was arrested on 5 July 1996. On 2 October 1996 his deprivation of liberty took the form of house arrest, which lasted until 3 July 2003 (see paragraphs 34, 39 and 43 above). The Court has already held that house arrest constitutes deprivation of liberty within the meaning of Article 5 (see Mancini, § 17; Vachev, §§ 64 and 70; and Nikolova (No. 2), §§ 60 and 74, all cited above). It is furthermore unable to subscribe to the Government's argument that the applicant's house arrest did not in fact amount to a custodial measure because the authorities responsible for monitoring compliance with it were far away, which allowed him to breach it with impunity. To determine whether a person is deprived of his or her liberty the Court must look upon the actual circumstances of the regime to which he or she was subject, as a matter of law and in fact ... the fact that the applicant had the opportunity to breach his house arrest cannot lead to the conclusion that it did not fall within the ambit of Article 5(3).."

27. At the other end of the spectrum there are a number of cases in which either the Commission or the court has concluded that a curfew, requiring someone to be inside a house (sometimes his own home, sometimes new accommodation provided for, or chosen by, him) during the night hours, does not amount to a deprivation of liberty within the meaning of Article 5(1), but is a mere restriction on the freedom of movement under Article 2 of Protocol No 4. In Raimondo v Italy (1994) 18 EHRR 237 the applicant was subject to:

"... a prohibition on leaving his home without informing the police; an obligation to report to the police on the days indicated to that effect; an obligation to return to his house by 9 p.m. and not to leave it before 7 a.m. unless he had valid reasons for doing so and had first informed the relevant authorities of his intention."

28. In Ciancimino v Italy (1991) 70 D&R 103 the applicant was required to reside in a District (Rotello) where he was not previously resident and on arrival was required:

"— not to leave the district of Rotello without first obtaining authorisation in each case from the competent judicial authority, and only on grounds relating to professional questions, studies, family or health;

— to report to the Rotello police every day at 11 a.m.;

— not to return home after 8 p.m. or leave home before 7 a.m. without certified need, and in any case without duly informing the authority responsible for his supervision."

29. In Labita v Italy (6th April 2000):

"The applicant was required, inter alia:

(i) not to leave his home without informing the authorities responsible for supervising him;

(ii) to live an honest life and not to arouse suspicion;

(iii) not to associate with persons who had a criminal record or who were subject to preventive or security measures;

(iv) not to return home later than 8 p.m. or to leave home before 6 a.m., unless due cause could be shown and in all cases only after informing the authority responsible for supervising him;

(v) not to keep or carry weapons;

(vi) not to go to bars or attend public meetings;

(vii) to have on him at all times the card setting out his precise obligations under the preventive measures and a copy of the court order;

(viii) to report to the relevant police station on Sundays between 9 a.m. and 12 noon." (see paragraph 63)

30. The applicant did not contend that these restrictions were in breach of Article 5(1) and the court concluded that there had been a violation of Article 2 of Protocol 4 (see paragraph 197).
31. The curfews, some of them in the applicant's own home, in these cases were for periods of 10-11 hours during each night. The longest curfew which has been held to be a restriction on movement but not a deprivation of liberty is to be found in the case of Trijonis v Lithuania (17th March 2005). In that case the applicant was initially placed under "home arrest" for 24 hours each day. The "home arrest" order was then amended so that:

"... he was permitted to be at his work place during week-days and obliged to stay at home from 7 pm until 7 a.m. during week-days and the whole day during week-ends."

32. The applicant's complaint in respect of the former period of "home arrest" was found to be admissible, whereas his complaint in respect of the latter period was not, since "it did not amount to a deprivation of liberty, the applicant having been allowed to spend time at work, as well as at home during that period (see, by contrast, Guzzardi)."
33. It is not possible to further narrow the gap between 24-hour house arrest seven days per week (equals deprivation of liberty) and a curfew/house arrest of up to 12 hours per day on weekdays and for the whole of the weekend (equals restriction on movement) by a direct application of the Strasbourg jurisprudence.
34. I therefore return to the exposition of principle in Guzzardi. The principle was applied by the Court of Appeal in Secretary of State for the Home Department v Mental Health Review Tribunal and PH [2002] EWCA Civ 1868. The case was concerned with two of the conditions imposed by the defendant when directing the conditional discharge of a patient, PH:

"3) [PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security.

4) [PH] shall not leave the accommodation without an escort."

35. It was argued by the Secretary of State that these conditions were so restrictive as to deprive PH of his liberty, with the result that he would continue to be detained, albeit under conditions of lesser security, and that the imposition of such conditions was outwith the power of the Tribunal. The context is very different from the present cases, but Keene LJ's explanation of the relevant principles is of considerable assistance:

"14. There is little dispute about the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Article 5(1). First, 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. This has been repeatedly spelt out by the European Court of Human Rights in cases such as Guzzardi -v- Italy [1980] 3 EHRR 333, Ashingdane -v- United Kingdom [1985] 7 EHRR 528 and H.M.-v- Switzerland [26 February 2002] application no. 39187/98.

15. Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance. Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. Fourthly, account must be taken of the cumulative effect of the various restrictions. All these principles flow from the cases cited above.

16. Fifthly, the purpose of any measures of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise. This principle can be seen in two Strasbourg decisions. In Nielsen -v- Denmark [1988] E.H.R.R. 175 a child of about 12 was placed in a hospital psychiatric ward for children as a result of a decision by his mother, based upon medical advice. He claimed that there had been a breach of his Article 5 rights, but the European Court of Human Rights found that the objective of his hospitalisation was the protection of his health. The restrictions imposed were not in principle different from those obtaining in many hospital wards where children with physical disorders were treated. It was concluded that this regime did not amount to a deprivation of liberty within the meaning of Article 5 but was:

'a responsible exercise by his mother of her custodial rights in the interests of the child' - para. 73.

17. The second decision illustrating this principle is perhaps of greater relevance to the present appeal. In H.M. -v- Switzerland the applicant was a woman who at the age of 84 had been placed compulsorily in a foster home. The Court found that she had been placed there by the Swiss authorities in her own interests in order to provide her with necessary medical care and satisfactory living conditions and hygiene. In those circumstances the Court concluded, citing the Nielsen case, that her placement did not amount to a deprivation of liberty within Article 5(1), but was a responsible measure taken by that competent authorities in the applicant's interests. Therefore, there was no violation of Article 5(1)."

The Secretary of State's appeal was dismissed.

36. PH was cited with approval in Davies v Secretary of State for the Home Department [2004] EWHC 3113 (Admin), in which the Divisional Court had to consider whether certain requirements in a supervision licence imposed on a young offender amounted to a deprivation of his liberty. The facts are set out in the judgment of Tuckey LJ:

"2. The claimant, who was born on 5th March 1983, was released from Dartmoor on 16th November 2004, after serving the whole of a sentence of 30 months in a Young Offender Institution for four offences of obtaining by deception, six of burglary and theft and one of aggravated vehicle taking.

3. Section 65(1) of the 1991 Act says, so far as is material to this case:

'Where a person under the age of 22 years (the offender) is released from a term of detention in a Young Offender Institution ... he shall be under the supervision of a social worker of a local authority social services department.'

By subsection (3), the supervision period begins on the offender's release and ends 3 months later.

4. Subsection (5) says:

'Where a person is under supervision under this section, he shall comply with such requirements, if any, as may for the time being be specified in a notice from the Secretary of State.'

It is such a notice with which this case is concerned. Two of its requirements are said to be in breach of Article 5 of the Human Rights Convention.

5. The licence issued in this case was to expire on 15th February 2005. It was largely in a standard form used by the Home Office. It recited the objectives of supervision, which were to protect the public, prevent re-offending, and achieve the offender's successful reintegration into the community.

6. ...

7. It is the eighth and tenth requirements which the claimant has permission to challenge. They say:

'while under supervision you must... (viii) Permanently reside at Lawson House Probation Hostel, 13/14, Paradise Place Stoke Plymouth and must not leave to live elsewhere without obtaining the prior written approval of your supervising officer; thereafter you must reside as directed by your supervising officer...(x)Not leave Lawson House Hostel unescorted by hostel staff, without the prior approval of your supervising officer, Hostel Senior Probation Officer or the Hostel Probation Officer. (This condition will be reviewed on a monthly basis).'"

37. Having referred to Guzzardi, Tuckey LJ said in paragraph 16:

"These principles were helpfully summarised by Keene LJ in the Secretary of State for the Home Department v The Mental Health Review Tribunal (PH) ..., a case concerning the Tribunal's powers to attach conditions to a direction to discharge a restricted patient. At paragraph 16 Keene LJ added to what was said in Guzzardi, a further relevant consideration based upon other decisions of the Strasbourg court. This was that:

'The purpose of any measure of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise.'"

38. Tuckey LJ recorded the rival arguments in paragraphs 22 and 23:

"22. On behalf of the Secretary of State, Mr Sheldon submits that the requirements in question do not amount to a deprivation of liberty. The claimant is not confined to any particular part of the hostel and may go out with an escort or on his own, if he has the necessary permission. He has not yet gone out unescorted, but this is because he has absconded. One of the purposes of residence at the hostel is to assist the claimant's resettlement into the community, as is the escort requirement. The period of supervision is only for 3 months and the requirements of the licence are not enforced by physical restraint.

23. Mr Lloyd does not suggest that the requirement permanently to reside at the hostel amounts to a deprivation of liberty on its own. It obviously does not. The question is, therefore, whether cumulatively the additional requirement restricting the claimant's ability to leave the hostel, pushes this case across the line into Article 5 territory."

39. Tuckey LJ concluded in paragraphs 24 and 25:

"24. I do not think it does for the reasons given by Mr Sheldon. I would add, however, that I think each of the purposes expressed at the beginning of the licence are relevant in considering the cumulative effect of these restrictions. The restrictions are designed to provide the claimant with a fixed address and the support of the probation service so as to prevent him re-offending and therefore to protect the public and to attempt to achieve his successful reintegration into the community. The need for an escort or express permission to be out on his own, was obviously considered to be necessary in his case to further these objectives. This requirement has to be renewed each month, so if the claimant starts to show he can be trusted, which self evidently he has failed to do so far, requirement (x) may be lifted.

25. In any event, the restriction will only last for 3 months, a not unreasonable time considering the claimant was last at large for any length of time nearly 3 years ago. For those reasons I would dismiss this application."

Field J agreed.

40. I have dealt with the facts of this case in some detail, although it was decided in a very different context (not least because the period of supervision was only three months), because it was relied upon by Mr Eicke on behalf of the Secretary of State in support of the proposition, not merely that the purpose for which these control orders had been imposed was a relevant consideration (as to which all parties were in agreement), but also that in the light of that purpose, if there was any doubt as to whether the obligations amounted to a deprivation of liberty "that doubt should be resolved in favour of the Secretary of State".
41. I do not accept the latter submission, which is based upon a misunderstanding of the Divisional Court's approach in Davies. Mr Eicke submitted that Tuckey LJ had attached importance to all of the objectives of supervision and that these included the protection of the public and the prevention of reoffending. He submitted that an analogy could therefore be drawn between those objectives and the objectives of the control orders in the present cases: viz the protection of the public and the prevention of terrorism-related activity: see section 1 of the Act. However, when Tuckey LJ's judgment is read as a whole, it is clear that Mr Eicke's submission places the boot on the wrong foot. In stating that "each of the purposes" expressed at the beginning of the licence was relevant in considering the cumulative impact of the restrictions, Tuckey LJ was intending to emphasise the extent to which supervision by the local authority social services department was a measure which was being taken in the interests of the young offender himself, hence the citation in paragraph 16 of Tuckey LJ's judgment from paragraph 16 of Keene LJ's judgment in PH. The Secretary of State had argued that one of the purposes of residence at the hostel was to assist the claimant's resettlement in the community (see paragraph 22), and the Divisional Court thought it relevant that providing the claimant with a fixed address and the support of the probation service would not merely "prevent him reoffending and therefore ... protect public", but would also "attempt to achieve his successful reintegration into the community", and would therefore be in his own best interests. Thus, even if not principally in the claimant's own interests, the restrictions were at least substantially imposed in his own interests. There is no suggestion that the obligations in these six control orders have been imposed in the interests of the respondents. Their purpose is solely the protection of the public by the prevention of terrorism-related activity.
42. In Guzzardi the court accepted that deprivation of liberty was not confined to "classic detention in prison" but may take many other forms (see paragraph 95). While the purpose of the restrictions is but one factor, if that purpose is the same or similar to the purposes for which states conventionally impose "classic detention in prison" (punishment, protection of the public and the prevention of reoffending), then that will be a pointer towards the restriction being a deprivation of liberty, rather than in the other direction. Conversely, the more that any restrictions are imposed in the interests of the individual (for example, to provide support for vulnerable members of society such as mental patients or young persons), the less will the courts be inclined to regard them as being a deprivation of that individual's liberty. In some cases (as in Davies but not in the house arrest/curfew cases cited above) the restrictions are imposed for a dual purpose: to protect the interests of both the public and the individual concerned, but that is not the case here.
43. The importance of protecting members of the public from the risk of terrorism is not in doubt, but the importance of that objective is not a reason for the court to be less inclined to classify the obligations in these control orders as a deprivation of, rather than a restriction upon, liberty. The Convention makes express provision in Article 15 for there to be a derogation from (inter alia) Article 5 "In time of war or other public emergency threatening the life of the nation". That facility is carried forward into the Act, which applies the mechanism of a "designated derogation" under section 14 of the 1998 Act: see section 1(10) of the Act and the procedures for making derogating control orders (above). In the absence of a derogation under Article 15 of the Convention the respondents are entitled to the full protection of Article 5, and there is no justification for any attempt to water down that protection in response to the threat of terrorism.
44. Mr Eicke made it clear that it was no part of the Secretary of State's case that the protection afforded by Article 5 should be watered down. He was right to do so. The House of Lords had to consider the impact of terrorism on Convention rights in A (No 2). The House was considering the absolute prohibition in Article 3, but the principles set out in paragraph 41 of Lord Bingham's speech apply equally to Article 5 in the absence of any derogation from that Article:

"41. It is true, as the Secretary of State submits, that states members of the United Nations and the Council of Europe have been strongly urged since 11 September 2001 to cooperate and share information in order to counter the cruel and destructive evil of terrorism. But these calls have been coupled with reminders that human rights, and international and humanitarian law, must not be infringed or compromised. Thus, while the Council of Europe's Parliamentary Assembly recommendation 1534 of 26 September 2001 refers to co-operation 'on the basis of the Council of Europe's values and legal instruments', it also refers to Parliamentary Assembly resolution 1258, para 7 of which states:

'These attacks have shown clearly the real face of terrorism and the need for a new kind of response. This terrorism does not recognise borders. It is an international problem to which international solutions must be found based on a global political approach. The world community must show that it will not capitulate to terrorism, but that it will stand more strongly than before for democratic values, the rule of law and the defence of human rights and fundamental freedoms.'"

45. Moreover, a national court "should not without good reason dilute or weaken the effect of the Strasbourg case law ... The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less" (see paragraph 20 of Lord Bingham's speech in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323).
46. At this stage it is convenient to consider one of the factors mentioned in paragraph 92 of Guzzardi, the duration of the obligations imposed on the respondents by these control orders. It will be remembered that in Davies the Divisional Court emphasised that "the restriction will only last for 3 months" (see paragraph 25). Mr Eicke submitted that the control orders in the present cases are of significantly shorter duration than the orders in issue in Guzzardi and the other house arrest/curfew cases cited above. Their validity is limited by operation of statute to one year, and thereafter the Secretary of State is required to make a fresh decision to renew the control order (see section 2(6) of the Act). Mr Guzzardi was in internal exile on the small island off the coast of Sardinia for over 16 months. In the other cases various forms of compulsory residence order falling short of deprivation of liberty were in force for periods of up to 3 years, see for example Labita.
47. In my judgment, the proposition that the impact of these control orders should be considered on the basis that they have effect for "only" 12 months is an unduly legalistic approach which does not have regard to the realities of the matter, and therefore does not reflect "the concrete situation" in which these respondents are placed, as required by Guzzardi. Under section 2(6) of the Act the Secretary of State may renew these control orders if he:

"(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and

(b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity."

48. It will be noted that when considering renewal the Secretary of State does not have to revisit the criterion in section 2(1)(a) of the Act: that he "has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity". That is not surprising, since, unless the court has decided at a hearing under section 3(10) that the Secretary of State's decision was "flawed", any renewed order will be made upon the basis that 12 months previously there were reasonable grounds for suspecting that the individual had been involved in terrorism-related activity. Thus the respondents will know that, absent any material change of circumstance, there is at least a strong probability that these orders will be renewed for further periods of 12 months at a time. It will be noted that section 2(4)(b) provides that renewal may take place "on one or more occasions", thus placing no limit on the number of renewals. In reality, therefore, the "concrete situation" of these respondents is that they face the prospect of being subject to the obligations imposed by these orders not for "only" 12 months, but for an indefinite period.
49. In his submissions Mr Eicke laid great stress upon the facts in Guzzardi and submitted that, by contrast with the present cases, those facts were wholly exceptional, in that, for practical purposes, Mr Guzzardi had been exiled to his own "St Helena". I readily accept that the facts in Guzzardi were exceptional, but I do not understand the court's judgment as stating that only such exceptional facts are capable, cumulatively, of amounting to a deprivation of liberty. The obligations imposed on Mr Guzzardi while he was compelled to reside on the island of Asinara are set out in paragraph 12 of the court's judgment:

"... the applicant should:

- start looking for work within a month, establish his residence in the prescribed locality, inform the supervisory authorities immediately of his address and not leave the place fixed without first notifying them;

- report to the supervisory authorities twice a day and whenever called upon to do so;

- lead an honest and law-abiding life and not give cause for suspicion;

- not associate with persons convicted of criminal offences and subjected to preventive or security measures;

- not return to his residence later than 10 p.m. and not go out before 7 a.m., except in case of necessity and after having given notice in due time to supervisory authorities;

- not keep or carry any arms;

- not frequent bars or night-clubs and not take part in public meetings;

- inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call."

50. In paragraph 94 of its judgment the court referred to the fact that the Commission had declared inadmissible, as manifestly unfounded, an application brought by Mr Guzzardi in relation to an identical order directing special supervision accompanied by an order for compulsory residence whilst he was on the Italian mainland. On its face such an order falls short of deprivation of liberty (see the house arrest/curfew cases cited above), but the court made it clear that:

"It does not follow that 'deprivation of liberty' may never result from the manner of implementation of such a measure, and in the present case the manner of implementation is the sole issue that falls to be considered ..." (paragraph 94)

51. Mr Eicke drew attention to the following factors which the court took into account in concluding that cumulatively and on balance there had been a deprivation of liberty:

"a) the area around which Mr Guzzardi could move 'covered no more than a tiny fraction of an island to which access was difficult and about nine-tenths of which was occupied by a prison' [§95]

b) 'Mr Guzzardi was housed in part of the hamlet of Cala Reale which consisted mainly of the buildings of a former medical establishment which were in a state of disrepair or even dilapidation, a carabinieri station, a school and a chapel.' [ibid]

c) 'He lived there principally in the company of other persons subjected to the same measure and of policemen.' [ibid]

d) 'The permanent population of [the island of] Asinara resided almost entirely at Cala d'Oliva, which Mr Guzzardi could not visit, and would appear to have made hardly any use of its right to go to Cala Reale.' [ibid]

e) 'Consequently, there were few opportunities for social contacts available to the applicant other than with his near family, his fellow 'residents' and the supervisory staff.' [ibid]

f) 'Supervision was carried out strictly and on an almost constant basis.' [ibid]

g) 'Mr Guzzardi was not able to leave his dwelling between 10 p.m. and 7 a.m. without giving prior notification to the authorities in due time.' [ibid]

h) 'He had to report to the authorities twice a day and inform them of the name and number of his correspondent whenever he wished to use the telephone.' [ibid]

i) 'He needed the consent of the authorities for each of his trips to Sardinia or the mainland, trips which were rare and, understandably, made under the strict supervision of the carabinieri.' [ibid]

j) 'He was liable to punishment by 'arrest' if he failed to comply with any of his obligations.' [ibid]; and

k) '... more than 16 months elapsed between his arrival at Cala Reale and his departure for Force [ibid].

It also seems to have been a relevant consideration for the Court that:

Several items of documentary evidence filed thus show that the island was not suitable for a normal application of the 1956 and 1965 Acts. This was eventually recognised by the Italian State. [§95]"

52. Mr Eicke submitted that what was at the heart of the court's concern in the Guzzardi case was the fact that there were only very few opportunities for social contacts available to him (other than with his family, others in the same position as him and his supervisors). He was not allowed to go into the small (non-supervised) community on the island and the non-supervised inhabitants of the island very rarely ventured into Cala Reale, there appear to have been no (meaningful) public amenities in Cala Reale, such as shops or religious services in the Chapel, and he was required to inform his supervisors of every person he sought to contact by telephone (using what appears to have been the one and only telephone available to all the residents of Cala Reale).
53. While Mr Eicke pointed to the respects in which Mr Guzzardi was worse off than the respondents (for example, the very small geographical area to which he had access on a tiny remote island when compared to the urban areas defined in obligation 11 in the six control orders), and counsel for the respondents pointed to the respects in which the respondents were worse off than Mr Guzzardi (for example, the restriction on visitors to their residences, and the hours during which they were required to remain in their residences, see conditions 4 and 1 respectively), I do not consider that such a mechanical exercise is of any real assistance, bearing in mind the obvious distinction between compulsory residence on the equivalent of St Helena and compulsory residence for 18 hours a day in a one-bedroom flat in a part of an English city or town.
54. The extent to which the individual is subject to supervision, the extent to which he can make social contacts, the extent to which he has access to public facilities, and whether he is free to make telephone calls or otherwise to communicate with whomsoever he wishes, are all aspects of a broader question: to what extent is the individual subject to the obligations able to lead a life of his choice, which for convenience may be described as a "normal" life? If one asks the question "deprived of liberty to do what?", the answer must be: deprived of the freedom to lead one's life as one chooses (within the law). That freedom is the antithesis of a life which is subject to the kinds of control to which a prisoner, whose "liberty to do anything is governed by the prison regime" is subject: see per Lord Jauncey at page 176H of R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58.
55. In Ciancimino the Commission pointed out that the applicant "was able to lead a normal life ... with his close family" in the commune with a population of 1500 where he was required to live. In Trijonis the court stated that the applicant's "home arrest" "did not amount to a deprivation of liberty, the applicant having been allowed to spend time at work as well as at home during that period." By contrast, in Guzzardi the court concluded that the treatment of which he complained "resembles detention in an open prison ..." (see paragraph 95).
56. Mr Eicke referred to a number of cases where geographical limitations imposed on the movements of individuals (usually within a particular municipality) have been held not to amount to a deprivation of liberty: Aygün v Sweden (1989) 63 D&R 195, Karker v France (30th October 2000) and Celepi v Sweden (2nd August 1994), but in each of those cases the applicant was able to lead a "normal" life, albeit one contained within those geographical restrictions.
57. In considering the extent to which the obligations in these control orders enable the respondents to lead a normal life, I realise that the starting point must be the "concrete situation" of each respondent and that the court in Guzzardi concluded that there had been a deprivation of liberty only after a detailed examination of the facts in his case. It was not possible in the time available to conduct such a detailed examination (which would have involved oral evidence and cross-examination, some of it probably in closed session) for the purpose of determining the preliminary issue in this case. However, the parties were able to agree brief statements of agreed facts in each case and these are included as Annex II to this judgment. At the parties' joint request I have deleted all references to the locations of the respondents' former, and present residences.
58. The respondents submitted that I should take account of other factual matters which were not agreed by the Secretary of State, but I accept Mr Eicke's submission that in the context of these proceedings for the determination of a preliminary point of law I should not stray outside those facts which have been agreed or which are apparent on the face of the control orders themselves. In any event, the obligations in the control orders are very detailed, and in conjunction with the agreed facts they provide a sufficient basis for assessing the respondents' "concrete situations" and in particular the "type, effects and manner of implementation" of the obligations in accordance with the principles in Guzzardi (for the duration of the obligations see paras 46-48 above).
59. By way of further uncontroversial background, I should add that, save for LL, where there is a dispute as to his identity and whether he is an Iraqi national or an Iranian national, all the respondents are Iraqi nationals whose claims for asylum have either been refused, or remain undetermined, by the Secretary of State. Apart from LL all the respondents were arrested under the Terrorism Act 2000, but were released without charge and then re-detained under immigration powers on notice of intention to deport on national security grounds. LL was arrested and received a caution for obtaining pecuniary advantage by deception. He too was detained under immigration powers pending deportation on national security grounds. The deportation proceedings were discontinued on the making of the control orders.
60. Against this necessarily abbreviated factual background, I turn to consider the impact of the obligations on these respondents. The starting point is obligation 2 which requires them to remain within "the residence" for 18 hours each day between 4.00pm and 10.00am. The characteristics of "the residence" are clearly relevant. There is, in my judgment, potentially a considerable difference between an obligation requiring an individual to remain within his own home for 10-12 hours each day, and an obligation which requires him to move out of his own home and remain within accommodation in another location prescribed by the state for 10-12 hours each day. By contrast with Guzzardi, in some of the "curfew" cases the applicant was obliged to remain within his own home for 10 or 12 hours each evening or night (see Raimondo, Labita and Trijonis). In other cases the applicant had to move to a different district, but could then choose his residence within that district, and having done so was required to remain there during the night hours: see, for example, Ciancimino and the inadmissible complaint made by Mr Guzzardi in respect of the obligations imposed on him after he was returned to the mainland. It is clearly easier to lead a normal home life while confined within one's own home than it is while confined within accommodation, and in an area, with which one has no previous connection.
61. Apart from GG, who continues to live at his former address, all of the respondents are required to live within accommodation and to remain within areas, with which they have no previous connection. To the extent that one of the respondents was of no fixed abode (HH) and some others were in accommodation provided by NASS and were therefore liable to be moved to other accommodation at relatively short notice in any event, the fact that they are required to remain for 18 hours a day in accommodation which is new to them is of less significance than it might be in other cases where an individual is required to move out of a long-established home. However, when considering the curfews imposed in the other cases it is important to have regard to the extent to which the obligations imposed on the individuals left them at liberty to remain in their own home, or in a home of their choice within a certain geographical area.
62. The extent of "the residence" is also relevant. The respondents are all single men and they are required to remain alone, subject to any visitors that may be permitted under obligation 4, in one-bedroomed flats with living, kitchen and bathroom accommodation. During the 18 hours between 4.00pm and 10.00am they are not allowed out of those flats, even into the communal areas.
63. In my view it is helpful to consider to what extent the obligations enable the respondents to lead a "normal" life (a) during the 18 hours when they are required to remain within their flats; and (b) while they are allowed to go outside their flats for six hours between 10.00am and 4.00pm.
64. In all of the "curfew" cases, the applicants were able to lead a normal life, with their families if they had them, whilst they were inside their houses during the curfew hours. The police had no special power of entry during those hours, and (provided in some cases the applicants did not associate with criminals) they were entitled to have any visitors they wished. In Guzzardi the government pointed out that "his wife and son lived with him for 14 of the some 16 months he spent on Asinara; the inviolability of his home and of the intimacy of his family life, two rights that the Convention guaranteed solely to free people, were respected" (see paragraph 91). By contrast, the obligations in these control orders prevent the respondents from leading anything resembling a "normal life" whilst inside their residences during the curfew hours.
65. Obligation 7 permits searches by the authorities at any time. In each case there has been a number of searches, and normally the searches "take place at irregular hours so that the controlled person cannot anticipate the time of the visit". From the point of view of the authorities there is an obvious need to ensure that the respondents cannot anticipate when their residences might be searched, but it necessarily follows that even for the 18 hours when a respondent is required to remain in his residence, his "home" is not inviolable, but is subject to spot checks at random by the authorities, rather in the manner of a prisoner in his prison cell.
66. Since the respondents are all single men and, with exception of JJ, they have no relations in the United Kingdom, there is no "intimacy of family life" to be protected, but in the absence of any family life the respondents are heavily dependent on friends or acquaintances for any social contact. A normal incident of living in one's own home is the ability to admit or refuse visitors. Obligation 4 effectively ensures that there can be no semblance of a normal life, albeit within the residence, during the 18 hours from 4.00pm to 10.00am. While obligation 4 does enable persons other than those specified in paragraphs (a)-(c) to enter with the prior agreement of the Home Office, the respondents submitted that the requirement to supply the name, address, date of birth and photographic identity of the person concerned had a "chilling effect", which deterred all but the most determined and courageous of visitors. I accept the respondents' submission. Any respondent seeking a prospective visitor's agreement to provide their name, address, date of birth and photographic identity would have to explain why such details had to be supplied to the Home Office. Many individuals might well be reluctant to be seen to be associated with a person who was suspected by the Home Secretary of being involved in terrorism-related activity, even if they, personally, did not believe that the Home Secretary's suspicions were justified.
67. In addition to these obligations, there is the obligation to wear an electronic monitoring tag at all times (obligation 1), the reporting requirement (obligation 3), and the restriction to one fixed telephone line as a means of communication with the outside world (obligation 9). Some of the respondents contended that the requirement to wear a tag meant that there was "continuous 24-hour monitoring" of their whereabouts. The applicant submitted that this was a mistaken impression, and that the electronic tags fulfilled only one function: to confirm that the wearer was within the confines of his residence during the hours of curfew. The tag was not capable of GP monitoring and did not enable the Secretary of State to constantly monitor the respondent's movements either within or outside the flat (apart from informing the monitoring company that the respondent either was or was not inside the flat during curfew hours). In the absence of any evidence on the point, it is appropriate to proceed on the basis of the Secretary of State's submissions as to the effect of the tag: it and the reporting requirement are the means of enforcing the 18-hour curfew, as explained by Ouseley J in paragraph 25 of his judgment in the modification appeal in Abu Rideh PTA/1/2005, dated 11th May 2004.
68. In a world where those who have their liberty effect so much of their communication by mobile phone or on the internet, obligation 9 is a significant restriction on the respondents' ability to communicate with the outside world as a normal incident of modern life within any home. It does not matter whether the one fixed telephone line is or is not monitored by the authorities, any reasonable respondent would assume that the purpose of the restriction to one landline is to facilitate monitoring of his communications with the outside world whilst he is in his flat if the authorities wish to do so.
69. In summary, not merely is the 18-hour period of the curfew imposed by obligation 2 in these control orders significantly longer than the curfews in any of the other cases which have been held not to amount to a deprivation of liberty (see above), the respondents' liberty to lead a normal life in their residences during the 18-hour curfew period is so curtailed as to be non-existent for all practical purposes.
70. To what extent then are the respondents at liberty during the six hours between 10.00am and 4.00pm? Obligation 11 restricts them to a particular geographical area. The areas are all urban areas ranging in size between approximately 72 square kilometres and 32.5 square kilometres. All of the areas contain, at least, a mosque and a hospital, primary care facilities, shops and entertainment and sporting facilities. However, the respondents (with the exception of GG) have not lived in these areas before, and their ability to make, and of no less importance to retain, social contacts is bound to be significantly affected by obligation 5, which prevents them without the prior agreement of the Home Office from meeting any person by prior arrangement, and from attending any pre-arranged meetings or gatherings (apart from at the mosque chosen with the approval of the Home Office under obligation 10).
71. In the "curfew" cases cited above, the applicants were subject to a number of restrictions during the time whilst they were allowed outside their homes. For example, in Labita the applicant was prohibited from associating with criminals, from keeping and carrying weapons, and from going to bars and attending public meetings. However, in all of those cases the applicants were able, if they so wished, to go out and do a normal day's work (on weekdays only in the case of Trijonis, although he appears to have been subject to no other restrictions whilst out of curfew hours on weekdays), and in no case were they subjected to a prohibition equivalent to that which is imposed by paragraph (a) in obligation 5. The freedom to meet any person of one's choice by prior arrangement is a significant part of any individual's normal social life whilst outside his home, as is the freedom for those who have a religious belief to attend whatever church, temple, mosque or synagogue they choose. Paragraph (b) in obligation 5 is so broadly drafted as to prevent attendance, not merely at public meetings, but at any pre-arranged meeting or gathering, whether public or private and for whatever purpose. Again, the freedom to attend meetings or gatherings of all kinds for social, cultural, educational, entertainment or other purposes is an important incident of any individual's normal life whilst outside their home.
72. There is no doubt that these very restrictive obligations in the control orders are strictly enforced. LL has been charged with seven offences under section 9(1) of the Act, which provides for a maximum sentence of 5 years' imprisonment for conviction on indictment for the offence of contravening, without reasonable excuse, an obligation imposed by a control order.
73. Drawing these threads together, and bearing in mind the type, duration, effects and manner of implementation of the obligations in these control orders, I am left in no doubt whatsoever that the cumulative effect of the obligations has been to deprive the respondents of their liberty in breach of Article 5 of the Convention. I do not consider that this is a borderline case. The collective impact of the obligations in Annex I could not sensibly be described as a mere restriction upon the respondents' liberty of movement. In terms of the length of the curfew period (18 hours), the extent of the obligations, and their intrusive impact on the respondents' ability to lead anything resembling a normal life, whether inside their residences within the curfew period, or for the 6-hour period outside it, these control orders go far beyond the restrictions in those cases where the European Court of Human Rights has concluded that there has been a restriction upon but not a deprivation of liberty.
74. The respondents' "concrete situation" is the antithesis of liberty, and is more akin to detention in an open prison, where the prisoner is "likely to be released from prison regularly in order to work, take town visits and temporary release on resettlement or facility licence": see paragraph 5.37 of Prisoners and the Law, 3rd edn, by Creighton and others. In an open prison the prisoner will at least be able to associate with other prisoners within the prison perimeter, which may be little more than a fence, and if his requests, for example for visits by a particular individual, are refused, then he will be able to avail himself of a well-established complaints mechanism, from his wing officer, via a manager, to the prison governor, and thence to the Prisons Ombudsman.
75. By contrast, there is no appeal mechanism against a refusal of Home Office agreement, approval or consent under obligations 4, 5, 9, 10 and 11. Mr Eicke correctly submitted that judicial review would be available, but, even assuming that judicial review would be capable of delivering a timely answer to such a dispute, it would not provide a merits review. The lack of any appeal mechanism against refusals of consent under the obligations contained in the control orders is yet another indication, if one was required, of the extent to which the respondents' lives are not free, but are for all practical purposes under the control of the Home Office.
76. These observations apply with somewhat less force in the case of GG, since he continues to live at his former address. I say "with somewhat less force" even though in most cases there is likely, in my view, to be a real difference between being put under curfew in one's own home, and being required to move to a residence in a wholly different area, particularly if that requirement is coupled with restrictions which make it more difficult for the individual to establish social relations in the new area to which he is a stranger. However, for the reasons set out above, the obligations imposed by these control orders are so inimical to GG's ability to lead a normal life, even within his own home for 18 hours a day, and within a familiar neighbourhood for 6 hours a day, that he too has been deprived of his liberty.
77. In accordance with the principles established in Guzzardi, I have considered the cumulative impact of the obligations and therefore the extent to which they restrict the respondents' liberty in the six hours when they are allowed out of their residences, as well as the effect of the 18-hour curfew and the obligations imposed on the respondents whilst they have to remain within their residences during that period. If I had to assess the impact of the obligations individually, I would consider that house arrest for 18 hours each day, even if it was the only obligation (apart from obligations such as reporting and tagging to ensure that it was strictly observed) would be more realistically described as a deprivation of liberty, and not as a restriction on liberty, if it prevented the individual from pursuing a normal "in at home/out at work" life cycle: cf Trijonis.
78. Paragraph 93 of the court's decision in Guzzardi makes it clear that it is for the court and not the executive to decide whether the obligations imposed on an individual in any particular case amount to a deprivation of, or a restriction upon, liberty. Section 1(1)(a) of the Act respects that position. The Secretary of State may make a control order "except in the case of an order imposing obligations that are (not "are in his opinion") incompatible with the individual's right to liberty under Article 5 ..." A derogating obligation is an obligation which is incompatible with an individual's right to liberty under Article 5: see section 1(10).
79. While the court will defer, to the extent that it is appropriate, to the Secretary of State's views on certain matters, including, for example, what obligations are necessary under subsection 1(3) of the Act, there is no reason for such deference in respect of the Secretary of State's view that the obligations in these control orders merely restrict the respondents' liberty, but do not deprive the respondents of their liberty: see paragraph 221 of the speech of Baroness Hale in A (above). The Secretary of State's view on that question is only as good as the analysis of the Strasbourg jurisprudence that was carried out on his behalf before he made the orders. Naturally, I have not seen that analysis, but insofar as it is reflected in the submissions made on behalf of the Secretary of State in these proceedings, I have explained why I have found them unpersuasive. In saying that I intend no disrespect to Mr Eicke, whose ability to construct a silk purse out of a sow's ear was, as always, most impressive.
80. In reaching the conclusion that these control orders deprive the respondents of their liberty, I am comforted by the fact that my conclusion accords with the views expressed by other independent bodies. The House of Lords and House of Commons Joint Committee on Human Rights in its Twelfth Report of Session 2005-2006, House of Lords Paper 122, House of Commons Paper 915, considered the human rights implications of the control order regime under the Act. Under the heading "Compatibility assessment" it said:

"36. We agree with our predecessor Committee's view that, in principle, civil restriction orders imposing preventive measures, after a proper judicial process, are capable of being human rights compatible. A version of non-derogating control orders, with proper judicial involvement and a rigorous process to ensure proportionality to the threat, would not therefore necessarily be incompatible with our human rights obligations.

37. Our concern, however, is whether the Act provides sufficient clarity about the distinction between a derogating and a non-derogating control order to prevent the making in practice of control orders purporting to be non-derogating control orders which in fact amount to a deprivation of liberty. A number of the obligations enumerated in section 1(4) may not on their own be such a restriction on liberty as to amount to a deprivation of liberty within the meaning of Article 5 and therefore require derogation, but they are capable of constituting such a deprivation when combined with other obligations.

38. We accept that the question of whether a particular control order imposes obligations which cumulatively amount to a deprivation of liberty is a matter to be decided by a court on the facts of a particular case, because it depends on an appraisal of the concrete situation and the application of fact-specific criteria such as the type, duration, effects and manner of implementation of the measure in question. In our view, however, this does not mean that Parliament should renew the legislative framework and leave it to the courts to decide if non-derogating control orders amount to deprivations of liberty and are therefore unlawful. We know from Lord Carlile's report that 'most but not quite all' of the control orders so far issued have contained the list of obligations set out in the proforma schedule annexed to his report. In our view, those obligations are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article.

39. During the passage of the Act the Home Secretary acknowledged that a combination of the measures contained in section 1(4) of the Act is capable of amounting to a deprivation of liberty within the meaning of Article 5 ECHR, even though those obligations are not provided for in the derogation order. However, the Government argued that this does not give rise to any concern about compatibility because the Secretary of State is under an obligation under s.6 of the Human Rights Act 1998 to act compatibly with Convention rights when exercising his new power to impose obligations in a control order, and any control order which contained such a combination of measures as to amount to a deprivation of liberty would therefore be unlawful under the Human Rights Act and quashed by the courts on appeal on that ground.

40. We are unable to be so sanguine. In our view the very structure of the Act does not reflect the fact that obligations which by themselves only amount to restrictions on liberty are capable of giving rise to deprivations of liberty in combination with other obligations. The Act draws a rigid distinction between non-derogating control orders and derogating control orders and presupposes that it is only obligations which amount to a deprivation of liberty in their own right (such as 'full' house arrest) which will require derogation. Lord Carlile in his Report appears to assume that obligations only amount to a deprivation of liberty for the purposes of Article 5, and therefore require derogation, if they impose house arrest '24/7', that is, full house arrest. That is not correct as a matter of Convention case-law, as explained above.

41. It does not seem to us to be an adequate answer to say that any control order which imposed obligations which in combination amounted to a deprivation of liberty would be unlawful under the Human Rights Act in the absence of a derogation. In our view when creating such an unprecedented power for the executive to interfere with a wide range of Convention rights, the legal framework which creates the power should seek to ensure on its face that the power will not be used in a way which amounts to a deprivation of liberty in the absence of a derogation. The power to impose obligations in control orders in section 1(4) of the Act is not only likely, on the face of the Act, to be exercised in breach of the right to liberty in Article 5(1), but appears to us, from the evidence in Lord Carlile's report alone, confirmed by the evidence we have received, to have been so exercised in practice.

42. On this ground alone we seriously question the proposal to renew the provisions of the Prevention of Terrorism Act 2005 without Parliament's having had a proper opportunity to debate whether a derogation to permit such deprivations of liberty would be justified as being strictly required by the exigencies of the situation."

81. I agree with the Committee's assessment, but in my view they misunderstood Lord Carlile's position. On my reading of his report he did not assume that obligations only amounted to a deprivation of liberty for the purposes of Article 5 if they imposed house arrest for 24 hours each day. On the contrary, he was very careful to leave open the question whether house arrest for a lesser period each day could amount to a deprivation of liberty. The Committee referred to paragraph 31 of Lord Carlile's report in which he said:

"Section 1(4) contains a menu of potential obligations up and to including full-time house arrest. Such 24/7 house arrest would involve derogation."

So it would, but Lord Carlile did not suggest that anything less than "24/7 house arrest" would not involve derogation: see in particular the note of caution in paragraph 42 of his report (cited in paragraph 3 above).

82. The Joint Committee's concerns were shared to a large extent by Mr Alvaro Gil-Robles, the Commissioner for Human Rights, in his report to the Committee of Ministers and the Parliamentary Assemblies on his visit to the United Kingdom on 4th-12th November 2004. In paragraphs 16 and 17 of his report, he said:

"16. Control orders raise not only general points of constitutional principle concerning the rule of law and the separation of powers, but also a number of specific concerns regarding their compatibility with the rights guaranteed by the ECHR. In so far as the control orders break new legal ground, it is difficult to assess their compatibility with the ECHR with certainty. A number of concerns can, however, be raised.

17. The first question to arise is whether the restrictions applied in respect of non-derogating control orders are capable of amounting to a deprivation of liberty for the purposes of Article 5(1) ECHR. On the face of it, they cannot, as the Act states that control order obligations within the scope of Article 5(1) ECHR would require a derogation and be subject to derogation order proceedings. The Act does not, however, as noted, provide for any clear cut off point. This is understandable as it would be difficult to provide a clear limit, in particular where there might be many combinations of a variety of different restrictions which are imposable. House arrest would, for instance, clearly, fall within the scope of Article 5(1) ECHR. However, there might be, a strict combination of other restrictions on movement, contacts and residence, falling just short of this. The question of whether the restrictions imposed by the non-derogating control order amount to a deprivation of liberty falling within the scope of Article 5(1) CEDH must inevitably be determined on a case-by-case basis. It is of the utmost importance, therefore, that this appreciation should not lie exclusively with the Secretary of State and that the court be able to determine for itself whether this threshold has been breached."

I was not referred to any independent expression of view that the obligations in the pro forma control orders did not amount to a deprivation of liberty.

83. Before turning to the question of remedy, it is helpful to set out the comments on Mr Gil-Robles' report which were submitted by the government of the United Kingdom when that report was presented to the Committee of Ministers of the Council of Europe on 8th June 2005. The government's comments are contained in an Appendix to the report. In response to paragraphs 17-18 of the report, the government said:

"The Act permits a control order to impose obligations amounting to a deprivation of liberty within the meaning of Article 5 of the ECHR ('derogating obligations'), but only where the pre-conditions set out in the Act have been met. First, there must exist a 'designated derogation', in other words, a derogation from Article 5 that has been designated by an order approved by both Houses of Parliament ('designation order'). Second, the derogating obligations in the control order must be of a description set out in the designation order. A control order containing derogating obligations ('derogating control order') is made by a court, on application by the Secretary of State. If a control order is made amounting to a deprivation of liberty within the meaning of Article 5, but in circumstances where the pre-conditions explained above have not been met, the courts may quash that order."

84. The government's comments on the "cut off point for derogating and non-derogating control orders" included the following paragraph:

"It should therefore be clear from the restrictions imposed by a control order whether it was intended to be a derogating control order and subject to the specific regime and safeguards set out in the Act. However, it should be emphasised that the courts will make the final decision on this issue. Even if the Secretary of State purported to make a non-derogating control order, a court would nevertheless be free to consider for itself whether, notwithstanding the view of the Secretary of State, the restrictions in that order in fact constituted a deprivation of liberty. If the court were to decide that the order did constitute a deprivation of liberty, the court would have powers to quash the control order."

Remedy

85. In view of these comments which were formally submitted to the Committee of Ministers in response to the concerns expressed in the Commissioner's report, I was somewhat surprised to read the following submissions under the heading of "Remedy" in the Secretary of State's skeleton argument:

"If the Court should find against the Secretary of State on the question of 'deprivation of liberty', the Respondents seek an order quashing the control order under section 3(12) [of the Act].

It is respectfully submitted that it would be inappropriate for the Court to adopt that approach. The Secretary of State would respectfully submit that the appropriate order this Court should make (if it were to find against the Secretary of State on the substance of the Article 5(1) argument) would be an order to give directions to the Secretary of State for the modification of the obligations imposed by the control order (section 3(12)(c))."

86. I asked Mr Eicke, who of course was not involved in giving the government's comments to the Committee of Ministers, and was making his submissions upon the basis of instructions received from the Secretary of State, for an explanation as to why, having on 8th June 2005 given the Committee of Ministers an apparently reassuring answer to the Commissioner's concerns — namely, that if the court were to decide that a control order did constitute a deprivation of liberty it would have power to quash the order — only just over a year later, on 20th June 2006, the Secretary of State was submitting through counsel that if I was to decide that these control orders did constitute a deprivation of liberty it would be "inappropriate" for me to quash them. Having taken instructions, Mr Eicke was able to tell me that it was "unfortunate" that reference had been made in the 2005 response to the power to quash, and that that response had not been drafted in the context of litigation, whereas now the matter had been considered in more detail.
87. In my view, this change of position is more than just "unfortunate", it has the potential to undermine confidence in the integrity of public administration. The United Kingdom government's comments in 2005 would have left the Committee of Ministers of the Council of Europe with the reassuring impression that if a control order made by the Secretary of State did constitute a deprivation of liberty, then the court could be expected to use its powers to quash that order, but now that the crunch has come in 2006, the Secretary of State is strenuously seeking to persuade the court that it would not be appropriate to exercise that power. One would have thought that public assurances given by the UK government in response to concerns expressed in an official report could be relied upon, particularly where a Convention right of "fundamental importance" was in issue.
88. Section 3(10) of the Act provides that:

"On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed--

(a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and

(b) his decisions on the imposition of each of the obligations imposed by the order."

89. The court's powers are set out in subsections 3(12) and (13):

"(12) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are--

(a) power to quash the order;

(b) power to quash one or more obligations imposed by the order; and

(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes.

(13) In every other case the court must decide that the control order is to continue in force."

90. Mr Eicke submitted that since this preliminary hearing was not concerned with the correctness of the Secretary of State's decisions that the requirements of paragraphs (a) and (b) of section 2(1) of the Act were satisfied in these cases, and was solely concerned with the lawfulness of the obligations imposed by the control orders, the proper course would be to give directions to the Secretary of State under paragraph 3(12)(c) to modify the offending obligations.
91. It was common ground that if I concluded that the obligations imposed in these orders were derogating obligations, then the decision of the Secretary of State to impose those obligations was "flawed" for the purposes of section 3(12). Subsection (12) gives the court a discretion to quash the order under paragraph (a), whether the flawed decision falls under paragraph (a) or paragraph (b) of subsection 3(10). As the respondents pointed out, the distinction Mr Eicke sought to draw between the validity of the control orders and the validity of the obligations imposed by the control orders is wholly artificial. The sole purpose of a control order is to impose obligations on the controlee. By themselves, the Secretary of State's decisions under section 2(1)(a) and (b) have no effect whatsoever. The control order is given its teeth only when the Secretary of State decides upon the obligations that are to be imposed under subsections 1(3) and 1(4). Without the obligations the control order is nothing.
92. I have no doubt that the proper course is to quash these control orders under paragraph (a) and that it would not be appropriate to direct the Secretary of State to revoke the orders or to modify the obligations imposed by them. A direction to revoke or to modify carries with it the implication that there is in existence an order which was lawfully made by the Secretary of State, but which has been found to be flawed for some reason. The short answer to the Secretary of State's submission that he should be directed to modify these orders is that since he had no power to make them in the first place, there is simply nothing to revoke. The orders were made "without jurisdiction" in the narrow pre-Anisminic ([1969] 2 AC 147) sense of lack of jurisdiction. Each order would therefore have been described as a "nullity", when the distinction between jurisdictional and non-jurisdictional error of law was still of consequence: see the discussion in paragraphs 5-028 to 5-032 of De Smith, Woolf and Jowells Judicial Review of Administrative Action, 5th edn.
93. For whatever reason, it was thought appropriate to create a procedural chasm in the Act between non-derogating control orders and derogating control orders, with the Secretary of State being able to make the former but not the latter, and the court being able to make the latter but not the former: see subsection 1(2) and the other provisions of the Act cited at the beginning of this judgment. Since the Act provides no guidance as to the precise location of the chasm, it has created a procedural trap for the unwary. In imposing the obligations in Annex I these orders have fallen into that trap and there is no way in which they can be extricated by the court. I would emphasise the fact that the trap was created by those who were responsible for drafting the Act, it is not a trap that has been created by the court.
94. There are other reasons why quashing the order is the appropriate remedy. I have mentioned the fact that LL has been charged with seven offences of breaching the obligations. If the obligations are unlawful he is entitled to have them quashed. He is yet to be tried, but section 12 deals with the position of those who have been convicted of offences under section 9 prior to the quashing of the relevant control order by the court under section 3(10). The person so convicted may appeal to the Court of Appeal and "that court must allow the appeal and quash the conviction" see subsection 12(3). Paragraph 8 in the Schedule to the Act deals with the effect of court orders:

"8(1) Where--

(a) a control order,

(b) the renewal of such an order, or

(c) an obligation imposed by such an order,

is quashed, the order, renewal or (as the case may be) obligation shall be treated for the purposes of section 9(1) and (2) as never having been made or imposed.

(2) A decision by the court or on appeal from the court--

(a) to quash a control order, the renewal of a control order or an obligation imposed by such an order, or

(b) to give directions to the Secretary of State in relation to such an order,

does not prevent the Secretary of State from exercising any power of his to make a new control order to the same or similar effect or from relying, in whole or in part, on the same matters for the purpose of making that new order."

95. Since the Secretary of State had no power to make these control orders imposing obligations that are incompatible with the respondents' Article 5 rights, it is appropriate that they are treated for the purposes of the prosecution of LL under section 9 as never having been made or imposed (see paragraph 8(1)).
96. There was some discussion as to the proper interpretation of paragraph 8(2) in the Schedule. As a matter of first impression it certainly appears to give the Secretary of State power to make a new control to the same effect, despite the quashing of an earlier order by the court. For the purposes of this judgment it is unnecessary to decide the precise ambit of the power conferred on the Secretary of State by paragraph 8(2), although it may be of some relevance in the context of the forthcoming MB appeal. If, as seems likely, different obligations are imposed in new control orders, then a quashing order under paragraph (a) in subsection 3(12) will have left no room for doubt that the present obligations are derogating obligations and that any application for permission to make a new control order containing obligations to the same effect will be refused on the basis that the order is "obviously flawed", see section 3(2(a), while any new control order containing obligations to a similar effect will be at risk of being quashed following a hearing under section 3(10).
97. Finally, on the issue of remedy, since the obligations in the control orders are incompatible with the respondents' right to liberty under Article 5, it would not be right to allow them to continue in operation pending revocation or modification of the control orders by the Secretary of State. As a public authority, the court must not itself act in a way which is incompatible with a Convention right unless compelled to do so by primary legislation: see section 6 of the 1998 Act. Therefore, the incompatibility with the respondents' Article 5 rights must be brought to an end by the court as soon as possible.
98. I will, however, stay the effect of the quashing order for a period of seven days to enable the Secretary of State, if he is minded to appeal to the Court of Appeal (and I would certainly grant permission to appeal if an application was made), to apply to the Court of Appeal for an extension of the stay. The Court of Appeal will then be able to consider the merits of continuing the stay in the light of this judgment and any draft grounds of appeal.

Conclusion

99. I determine this preliminary issue in favour of the respondents. The six control orders impose obligations that are incompatible with the respondents' right to liberty under Article 5. It follows that the Secretary of State had no power to make the orders and they must therefore all be quashed.
100. It only remains for me to thank all counsel for their very helpful submissions, and to apologise to the respondents' counsel for not attributing particular submissions to named individuals.
______________________________
ANNEX I

THE OBLIGATIONS

1. Electronic tagging.

You shall permit yourself to be fitted with and shall thereafter at all times wear an electronic monitoring tag.

2. Residence.

You shall remain or permit yourself to be taken and thereafter reside at [ADDRESS] ("the residence"), and shall remain in the residence at all times save for a period of 6 hours between 10am and 4pm or as specified in the directions given in writing referred to at (8) below. "Residence", in the case of a flat, encompasses only that flat and, in particular, does not include any communal area either inside or outside to which any person not within the residence would have unrestricted access. "Residence", in the case of a house, encompasses only the house and does not include any outside space associated with it.

The words "remain or" in the first line do not appear in the orders made against HH, NN and LL

3. Reporting.

Each day, you must report to the monitoring company (as identified in the Notes to the Order) by telephone on the first occasion you leave the residence after a curfew period has ended and on the last occasion you return to it before a curfew period begins.




4. Visitors to the residence.

You shall not permit any person to enter the residence, save for:

(a) your nominated legal representative as notified to the Home Office;

(b) in an emergency, members of the emergency services or healthcare or social work professionals;

(c) any person required to be given access under the tenancy agreement for the residence, a copy of which shall be supplied to the Home Office.

You shall not permit any other individual to enter the residence except with the prior agreement of the Home Office. In relation to those other individuals, you must supply the name, address, date of birth and photographic identity of the individual. The prior agreement of the Home Office shall not be required for subsequent visits by an agreed individual, but this does not prevent the Home Office withdrawing that agreement at any time.

5. Pre-arranged meeting outside the residence.

You shall not, outside of the residence:

(a) meet any person by prior arrangement, other than:

(i) that person referred to in 4(a) above, or

(ii) for health or welfare purposes at an establishment on a list provided to and agreed by the Home Office before your first visit; or

(b) attend any pre-arranged meetings or gatherings (other than attending [but not leading] group prayers at a mosque),

save with the prior agreement of the Home Office. For the avoidance of doubt, a meeting shall be deemed to take place outside of the residence if one or more parties to it are outside of the residence.

The words "but not leading" at sub-paragraph (b) only appear in the orders made against HH and GG.

6. Identified individuals with whom any association or communication prohibited.

You shall not associate or communicate, directly or indirectly, at any time or in any way with the following individuals:

…

In the case of each of the orders made against the five individuals JJ, KK, GG, HH and NN, the orders identify the other four under this head. The order against LL identifies the other five.








7. Police searches.

You must permit entry to police officers and persons authorised by the Secretary of State or by the monitoring company, on production of identification, at any time to verify your presence at the residence and/or to ensure that you can comply and are complying with the obligations imposed by this control order. Such monitoring may include but is not limited to:-

(a) a search of the residence;

(b) removal of any item;

(c) inspection/modification or removal for inspection/modification of any article to ensure that it does not breach the obligations imposed by this control order;

(d) permitting the installation of such equipment as may be considered necessary to ensure compliance with the obligations imposed by this control order;

the taking of your photograph.

8. Further prohibitions or restrictions.

In order to secure compliance with the obligations imposed by the control order, you shall comply with such other prohibitions or restrictions on your movement as may be required by directions given in writing at the time of service of the control order by a police officer or other person authorised by the Secretary of State. Such prohibitions or restrictions shall cease to be effective 24 hours after service of the giving of the directions, or an earlier direction.

9. Communications equipment.

You shall not:-

(a) bring or permit into the residence; or

(b) use or keep (whether in or outside the residence, whether directly or indirectly)

any communications equipment or equipment capable of connecting to the Internet or components thereof (including but not limited to mobile phones, fax machines, pagers, computers and public telephone and/or internet facilities).

Furthermore, you may maintain and use no more than one fixed telephone line in the residence (other than the dedicated line maintained by the monitoring company). The telephone must on request be delivered up to a person authorised by the Secretary of State for inspection and approval prior to it being permitted into or to remain in the residence.

It shall not be a breach of this obligation to permit any person specified in 4(a) to (c) above to bring into the residence a mobile phone, provided that any such mobile phone shall remain switched off at all times whilst you are in the residence.

For the avoidance of doubt:-

(i) you may not use or keep, nor may you permit whilst you are in the residence any other person to use, any mobile phone in the residence; and

(ii) you may not connect to or use by any means, directly or indirectly, the internet at any time.

101. Mosque attendance.

You shall only attend one mosque of your choosing, subject to prior approval from the Home Office before your first visit.

102. Restriction to geographical area.

You may not at any time leave the area marked on the attached map at Annex A (the width of the line itself is within the permitted area) without the consent of the Home Office. This area is bordered by …

103. Notification of international departure and arrival.

You must notify the Home Office of any intended departure from the UK and notify it of the port of embarkation. You must also notify the Home Office if and when you intend to return to the UK and to report to the Home Office immediately upon arrival, that you are or were subject to this control order. The requirement to report on arrival shall continue to apply whether or not this control order remains in force at the time of your return to the UK.

13. Bank account.

You shall not maintain more than one account. Such account must be held with a bank or other approved financial institution within the UK. The following information must be provided to a person authorised by the Secretary of State:


(a) details of all accounts held at the time of service of this control order, within 2 days of such service;

(b) closing statements relating to any accounts additional to the one permitted account, within 14 days of service of this control order;

(c) if no account is held at the time of service of this control order but one is opened subsequently, details of that account, within 2 days of its opening;

statements of the permitted account on a monthly basis, to be provided within 7 days of their receipt.




14. Transfer of money / sending of documents or goods.

You shall not transfer any money, or send any documents or goods to a destination outside the UK (whether yourself or through an intermediary) without the prior agreement of the Home Office.

15. Passport / identity card etc.

Within 24 hours of the service of this order, you must:

(a) surrender any passport, identity card or any other travel document (other than any genuine passport issued by the Iraqi authorities) to a police officer or person authorised by the Secretary of State; and

(b) notify the Home Office of any Iraqi passport you have in your possession or which is available for your use.

Furthermore, prior notification must be given to the Home Office before you may apply for or have in your possession any passport, identity card, travel document(s) or travel ticket which would enable you to travel outside the UK.

16. Prohibition from entering air or sea port etc.

You are prohibited from entering or being present at any of the following:

(a) any airport or sea port; or

(b) any part of a railway station that provides access to an international rail service

without prior permission from the Home Office.

ANNEX II ______________________________________ STATEMENTS OF AGREED FACTS ______________________________________

This Annex contains statements of the facts that have been agreed between the Secretary of State and the respective Respondents for the purposes of the preliminary hearing of law as to whether or not the obligations contained in the control orders made against the Respondents breach Article 5 of the European Convention of Human Rights.

JJ (PTA 14)

The residence

104. The Respondent has never previously resided at the residence.
105. The distance between the Respondent's former address and the residence is approximately 18.4 miles.
106. The Respondent resides alone at the residence..
107. The residence is a one-bedroom flat consisting of a living room, a bedroom, a kitchen, a hallway and a bathroom. There is no communal garden.

The geographical area

108. The area within which the Respondent is required to remain is approximately 41 sq kms in size.
109. The geographical area contains (at least) a mosque and a hospital, primary care facilities, shops and sporting facilities.

Visitors / pre-arranged meetings

110. The Respondent has made no applications for social visits or pre-arranged meetings with friends (a pre-arranged meeting with the special advocate has been approved).
111. The Respondent has lived in the UK since 20^th October 2001.
112. A request to allow the Respondent to study English at an educational establishment was made by way of a letter dated 6^th February 2006. This was refused on the basis that the college was outside the permitted area and that attending the course would have necessitated regular variations to the curfew obligation.

Police visits

113. Police officers, sometimes accompanied by employees of the tagging company, have visited JJ's residence on a number of occasions. Normally, these visits take place at irregular intervals, in order to ensure that they are effective and that the controlled person cannot anticipate the time of the visit.

Telephone

114. The Respondent has not had a personal landline in the residence since March 2006. The monitoring telephone, has always been available to the Respondent in the residence.

Immigration status

115. The Respondent's immigration status entitles him to work. He has not made any application to do so.
116. The Respondent was informed that he was entitled to Jobseekers allowance of £56.20 a week from 20.01.06 to 15.04.06 and thereafter until 27.07.06 an allowance of £57.45 a week.
KK (PTA 15)

The residence

117. The residence where KK is required to live was not the Respondent's home prior to the imposition of the control order. The residence was provided to KK by NASS.
118. The distance between the residence and the Respondent's previous address is approximately 11.7 miles.
119. KK lives at the residence alone.
120. KK does not have any family in this country.
121. The residence is a one bedroom top floor flat with a separate bathroom, and an additional lounge, which combines a small kitchenette and a living area.

The geographical area

122. The geographical area within which KK is required to remain is approximately 32.5 sq km in size (12.74 sq miles).
123. The geographical area contains (at least) a mosque and a hospital, primary care facilities, shops and entertainment and sporting facilities.

Visitors / pre-arranged meetings

124. KK has made two applications for visitors. One was for a person to fit a telephone. That application has been approved. One was for an interpreter to attend with legal representatives. More information was requested in relation to that application prior to any decision being reached, but such information has not yet been provided.
125. KK has made no applications for social visitors to be cleared to enter the property.
126. KK is not studying at any academic institution at present.
127. KK has made no applications for any pre-arranged meetings.

Employment

128. The terms of KK's current immigration status prevent him from being in employment, and consequently he is not in employment. KK is in receipt of the relevant benefits for someone in his position, namely Section 4 support (pursuant to which he receives NASS support of £35 per week). This is provided for KK as he is a failed asylum seeker who may not be returned to his home country.

Telephone

129. KK currently has no telephone in his home. The monitoring telephone, on which it is possible to make calls to the emergency services, has at all times been available to the Respondent in the residence.

Police visits

130. Police officers, sometimes accompanied by employees of the tagging company, have visited KK's residence on a number of occasions. Normally, these visits take place at irregular intervals, in order to ensure that they are effective and that the controlled person cannot anticipate the time of the visit.
GG (PTA 16)

The residence

1. GG lives at an address which was his home prior to the imposition of the control order. The residence was provided to GG by the Local Authority.

2. GG lives at the residence alone.

3. GG does not have any family in this country.

4. The residence is a one-bedroom first floor flat with a lounge, a kitchen, a bathroom and a small store-room.

The geographical area

5. The geographical area within which GG is required to remain is approximately 60 sq km (23.44 sq miles) in size.

6. The geographical area contains (at least) a mosque and a hospital, primary care facilities, shops and entertainment and sporting facilities.

Visitors / pre-arranged visits

7. GG has made one application for a visitor to be cleared to enter the property, which was granted. This individual was an interpreter assisting with his legal case. GG has made no applications for social visitors to be cleared to enter the premises.

8. GG is not presently studying at any academic institution.

9. GG has made no applications for any pre-arranged meetings.

Employment

10. GG is not currently in employment. His immigration status allows him to work, but he has made no applications to do so.

11. GG was in receipt of Job Seekers' Allowance, but this benefit was terminated by the DWP. Since this was brought to the attention of the Secretary of State, he has made 3 weekly payments of £30 to GG.

Police visits

12. Police officers, sometimes accompanied by employees of the tagging company, have visited GG's residence on a number of occasions. Normally, these visits take place at irregular intervals, in order to ensure that they are effective and that the controlled person cannot anticipate the time of the visit..

HH (PTA 17)

NN (PTA 18)

The residences

1. HH and NN are currently resident in residences provided by NASS, in which they were not previously resident.

2. On his arrest in October 2005, HH stated to the police that he was of no fixed abode.

3. The residence allocated to NN is approximately 6.7 miles from the address where NN had been residing for just under 4 years prior to his arrest in October 2005.

4. The residences are both one-bedroom flats with separate kitchens and living areas.

5. HH and NN reside alone. Neither has any family in this country.

The geographical area

6. HH is restricted to an area the size of which is approximately 62 square kilometres.

7. NN is restricted to an area the size of which is approximately 72 square kilometres.

8. Both of the geographical areas contain (at least) a mosque and a hospital, primary care facilities, shops and entertainment and sporting facilities.

Visits to the premises

9. HH has made the following requests for approved visits to the premises which have been agreed:

i) Professor M

ii) Dr M

iii) an interpreter

10. NN has made the following request for approved visits to the premises which has been agreed:

i) an interpreter

11. NN has made one other request for an approved visit, which remains outstanding.

Pre-arranged meetings:

12. HH has applied (and has been authorised) to attend a nominated Mosque.

13. NN has applied and been authorised to visit a G.P.

14. NN has applied to visit a dentist but this application is outstanding.

15. NN has sought authorisation to attend a gym. This request remains outstanding.

Police Entry and Search

16. Police officers, sometimes accompanied by employees of the tagging company, have visited HH and NN's residences on a number of occasions. Normally, these visits take place at irregular intervals, in order to ensure that they are effective and that the controlled person cannot anticipate the time of the visit.

Immigration Status and financial support

17. HH has temporary admission.

18. HH's subsistence needs are provided by NASS pursuant to the relevant statutory scheme in the form of £35 support per week.

19. NN had exceptional leave to remain and made an in time application for indefinite leave to remain which is outstanding. His leave to remain is deemed extended by s 3C of the Immigration Act 1971.

20. NN receives Income Support / Job Seekers' Allowance.

Telephone

131. HH has had a personal telephone line since 2.5.06. NN has had a personal telephone line since 29.5.06. At all times, both NN and HH have had access to their monitoring telephones, on which calls to the emergency services can be made.

Employment

132. HH is prohibited from taking employment due to his immigration status.
133. NN can seek employment in principle but may require authorisation to take up employment depending on whether it could be accommodated within the Control Order obligations.
LL (PTA 19)

The residence

1. The residence is a one-bedroom flat with a bedroom, a bathroom and a separate living and kitchen area. The residence was provided by NASS and had not been LL's home prior to the imposition of the control order.

2. The Respondent lives in the residence alone.

3. The Respondent does not have any family members living in the UK.

4. Prior to his arrest in January 2005, the Respondent lived in NASS accommodation. From 6^th January 2005 to 21^st December 2005, the Respondent was held in immigration detention at HMP Manchester.

The geographical area

5. The geographical area is approximately 50 square kilometres in size.

6. The geographical area contains (at least) a mosque and a hospital, primary care facilities, shops and entertainment and sporting facilities.

Visits / pre-arranged meetings

7. The Respondent has made no applications for any visitors to his residence, or for any social pre-arranged meetings outside his residence.

Police visits / criminal investigation and prosecution

8. Police officers have visited the residence and carried out searches on a number of occasions. During some of those searches, evidence was discovered indicating that LL had breached his control order obligations – for example, a telephone card, a mobile phone and an unauthorised visitor were found.

9. On 14.6.06 the Respondent was arrested on suspicion of breaches of the control order obligations (PTA 2005, s.9(1)) and on 16^th June 2006 he was charged with 7 offences under that provision, including the use of a mobile phone, use of internet facilities, unauthorised meetings outside and within the residence and leaving the geographical area.

Immigration status and financial support

10. LL has temporary admission. LL's subsistence needs are provided by NASS pursuant to the relevant statutory scheme. LL received £35 per week until about March 2006. He has subsequently been receiving £39.34 per week (which was backdated to December 2005).

Telephone

11. LL has had use of a personal telephone line since 1.6.06. At all times, he has had access to his monitoring telephone, on which calls to the emergency services can be made.