Secretary of State for the Home Department v E

Factual and Procedural Background

Plaintiff was certified under the Anti-Terrorism Crime and Security Act 2001 and detained in a high-security prison in December 2001. His appeal against certification was dismissed by the Special Immigration Appeal Commission ("SIAC") in 2003. The House of Lords held the 2001 Act provisions incompatible with Articles 5 and 14 of the European Convention on Human Rights ("the Convention"). Plaintiff was one of ten individuals detained under the 2001 Act and subsequently subject to control orders made in March 2005. Most of these orders were revoked by August 2005, with the individuals either detained pending deportation, on bail, or having left the country.

The Prevention of Terrorism Act 2005 ("PTA") distinguishes between derogating and non-derogating control orders. Derogating orders, incompatible with the right to liberty under Article 5, may only be made by the court during a public emergency with a designated derogation. No such derogation exists currently. Non-derogating orders are made by the Secretary of State with court permission and are subject to court supervision under section 3 of the PTA.

The control order imposed on Plaintiff purports to be non-derogating. Plaintiff’s spouse initiated judicial review proceedings against the Home Secretary and sought to join the PTA proceedings. This summary concerns the third supervisory hearing under section 3 of the PTA, being the first full hearing with evidence on factual issues. Prior cases addressed procedural compatibility with Article 6 and whether control orders amounted to deprivation of liberty under Article 5, with the latter being upheld on appeal and leave to appeal to the House of Lords granted.

Due to delays largely attributable to awaiting the House of Lords decision in a related case concerning the admissibility of evidence obtained by torture, Plaintiff’s hearing took place approximately nineteen months after the control order was made. The court emphasized that such delays are unacceptable given the significant coercive nature of control orders and the entitlement of individuals to have the legality of such orders tested without undue delay.

Plaintiff was born in Tunisia, arrived in the UK in 1994 and claimed asylum. He was convicted in absentia in Tunisia for terrorism-related offences. He was arrested and wrongfully detained in London in 1998, with compensation paid. Mental health difficulties were noted. Reviews of his case occurred in 2004, and bail was granted shortly before the PTA came into effect.

Legal Issues Presented

1. Whether the power conferred by section 1(3) of the PTA, read with section 2(9), renders the PTA scheme incompatible with the Convention requirement of legal certainty.
2. Whether the obligations imposed by the control order amount to a deprivation of Plaintiff’s liberty contrary to Article 5 of the Convention.
3. If the order does not amount to a deprivation of liberty, whether the Secretary of State’s decisions to make and renew the control order and its contents are flawed, including challenges on grounds of proportionality, procedural fairness, and failure to consult as required under section 8(2) of the PTA.

Arguments of the Parties

Appellant's Arguments

• The PTA’s definitions of terrorism-related activity and the obligations that may be imposed are overly broad and vague, undermining legal certainty.
• The obligations imposed on Plaintiff are so severe that they amount to a deprivation of liberty under Article 5.
• The Secretary of State failed to adequately consider the possibility of prosecuting Plaintiff, particularly after the availability of Belgian court judgments.
• The obligations are disproportionate considering Plaintiff’s history, mental health, and impact on his family.
• The Secretary of State breached common law and Convention-based procedural fairness obligations by not affording Plaintiff and his family an opportunity to make representations post-order.
• The cumulative impact of the control order on Plaintiff’s children violates or risks violating their rights under Article 3.

Respondent's Arguments

• The PTA provisions do not violate the Convention requirement of legal certainty despite their breadth.
• The control order does not amount to a deprivation of liberty but constitutes a restriction on freedom of movement.
• The Secretary of State complied with the duty to consult the police under section 8 of the PTA.
• The Home Office was sufficiently informed about Plaintiff’s mental health and the impact of the control order on Plaintiff and his family.
• Delays in responding to requests for variations were due to new policy issues or necessary consultations and have improved over time.
• There is no duty to consult Plaintiff or his family before making the control order, and openness to representations post-order suffices.
• The impact on the children does not reach the threshold for inhuman or degrading treatment under Article 3.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by assessing the national security case, concluding that the Secretary of State had reasonable grounds for suspecting Plaintiff's involvement in terrorism-related activity based on substantial open evidence, including Belgian court judgments, and closed material. The necessity of the control order was upheld given the risk Plaintiff posed and the absence of adequate alternative measures, including prosecution or deportation.

On the issue of legal certainty, the court found that despite the broad definitions and powers under the PTA, the scheme was not arbitrary or incompatible with the Convention's requirement of clarity and foreseeability. Judicial review principles and proportionality provide adequate safeguards against abuse.

The court then examined whether the control order amounted to a deprivation of liberty under Article 5. While the 12-hour curfew alone was a significant restriction, it did not itself constitute deprivation of liberty. However, when combined with other obligations—particularly the requirement that all visitors and pre-arranged meetings be approved in advance, and the power for police to conduct spot checks and searches—the cumulative effect was deemed to deprive Plaintiff of his liberty. The court took into account Plaintiff’s concrete situation, including his family life and mental health, though it gave limited weight to subjective effects.

Regarding procedural fairness, the court held there was no duty to consult Plaintiff or his family before making the control order, given national security considerations and statutory provisions allowing orders to be made without prior notification. However, post-order, the Secretary of State had a continuing duty to consider representations and keep the matter under review. The court noted that Plaintiff and his family had made representations through solicitors, but the Home Office had not invited them to make representations specifically regarding renewal.

The court found that the Secretary of State complied with the statutory duty to consult the police before making the order. However, it identified a flaw in the failure to review the prospects of prosecution in light of the Belgian judgments made available after the order was imposed. This failure rendered the decision to maintain the control order flawed.

The court considered the proportionality of the interference with Plaintiff and his family’s rights under Article 8. It accepted the significant impact on Plaintiff, his spouse, and children, but held that in light of the national security risk, the interference was justified and proportionate. The court rejected claims that the impact on the children amounted to inhuman or degrading treatment under Article 3.

On the necessity of individual obligations, the court acknowledged that the Secretary of State must give intense scrutiny to onerous obligations, but noted the absence of cross-examination on necessity and accepted the Secretary of State’s assessment that all obligations remained necessary.

Holding and Implications

The court’s final decision was to QUASH the control order imposed on Plaintiff. The basis for this ruling was twofold:

• The control order imposed obligations amounting to a deprivation of Plaintiff’s liberty in breach of Article 5 of the Convention, a power which the Secretary of State does not possess under the PTA.
• The Secretary of State’s failure to review the possibility of prosecuting Plaintiff in light of the Belgian court judgments after their availability rendered the decision to maintain the control order flawed.

The court stayed the effect of the quashing order for seven days to allow the Secretary of State to seek permission to appeal. Permission was indicated to be granted if sought.

No broader precedent was established beyond the direct effect on the parties. The decision reinforces the necessity for careful judicial scrutiny of control orders, the requirement for timely hearings, and the continuing duty of the Secretary of State to review prosecution prospects in light of new evidence.