Secretary of State for the Home Department v JJ and Ors  UKHL 45 (31 October 2007)
In a judgment handed down on 31 October 2007, the House of Lords held that obligations imposed on six men under control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 (UK) (‘PTA’), deprived those men of their liberty in violation of art 5 of the European Convention on Human Rights.
The six respondents were suspected of being involved in terrorism related activities, and were assessed as posing a threat to the public. The Home Office imposed control orders on each of the men pursuant to s 2 of the PTA. None of the men had been charged with any offence relating to terrorism.
Under the control orders, each of the men were required to remain within their residence at all times, save for the six hours between 10:00am and 4:00pm. The specified residence of each respondent was a small one-bedroom flat and the terms of the control orders did not allow access to the common areas of the buildings in which those flats were situated. Any visitor to a respondent’s specified residence had to receive prior authorisation from the Home Office, which required names, addresses, date of birth and photographic identification to be supplied. Outside of the curfew, the respondent’s were confined to restricted urban areas, the largest of which was 72 square kilometres. They were prohibited from meeting anyone by pre-arrangement who had not been given Home Office clearance.
In a decision handed down on 28 June 2006, Sullivan J held that the obligations imposed on the respondents under the control orders deprived the respondents of their liberty in violation of art 5 of the European Convention:  EWHC 1623 (Admin). The Secretary of State’s appeal against Sullivan J’s decision was dismissed by the Court of Appeal on 1 August 2006:  EWCA Civ 1141.
Article 5 provides that ‘[e]veryone has the right to liberty and security of person’. There are a number of exceptions to this right including sentence following conviction, breach of a court order, arrest on suspicion of crime, infectious disease, mental illness, unlawful entry and pending action to deport or extradite. None of these exemptions were relevant to the circumstances of the respondents.
The question for the House of Lords was whether the effect of the control orders was to deprive the respondents of their liberty.
What constitutes deprivation of liberty?
In order to deprive the respondents’ of their right to liberty, the control orders must do more than merely restrict liberty. It is on this distinction that the judgments of the majority and minority of the House differed.
In the leading majority judgment, Lord Bingham of Cornhill, citing Guzzardi v Italy (1980) 3 EHRR 333, stated that deprivation of liberty may take numerous forms other than classic detention in prison or strict arrest. In determining whether or not that individual has been deprived of liberty, the task of the court is to look at the ‘concrete situation’ of the individual concerned and assess the impact of the measures in question on a person in the situation of a person subject to them. Consistent with this approach, account was taken to a number of aspects of the respondents’ obligations under the control orders. Significant weight was accorded to the fact that very few people would obtain the onerous authorisation from the Home Office to allow them to visit the respondents at their residences. In practice, this meant that each respondent was effectively in solitary confinement for 18-hours every day. The effect of the control orders on the respondents was held to be analogous to detention in an open prison. In a separate but concurring judgment, Lord Brown of Eaton-under-Heywood said:
The borderline between deprivation of liberty and restriction of liberty of movement cannot vary according to the particular interests sought to be served by the restraints imposed. The siren voices urging that it be shifted to accommodate today’s need to combat terrorism (or even that it be drawn with such a need in mind) must be firmly resisted. Article 5 represents a fundamental value and is absolute in its terms. Libertyis too precious a right to be discarded except in times of genuine national emergency. None is suggested here.
In dissent, Lord Hoffman and Lord Carswell, held that the control orders did not deprive the respondents’ of their liberty. Rather, the effect of the obligations was merely to restrict the men’s liberty. As the respondents were free to walk the street for 6-hours per day, shop, mingle with people, cook their own food, etc; they were deemed not to be in prison or anything akin to it. The concept of ‘deprivation of liberty’ was interpreted narrowly by Lord Hoffman, on the basis that the right to liberty is an unqualified right. Lord Hoffman considered that otherwise ‘the law would place too great a restriction on the powers of the state to deal with serious terrorist threats to the lives of its citizens’.
Implications for the Victorian Charter
Section 21 of the Victorian Charter protects an individual’s right to liberty and security.
The decision in Secretary of State for the Home Department v JJ & Ors, by reason of s 32(2) of the Charter, will be highly relevant to a Victorian court’s consideration of the meaning of ‘liberty’ for the purposes of s 21 of the Charter and the issue as to what constitutes a ‘deprivation of liberty’.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2007/45.html.
Sarah Guy, Human Rights Law Group, Mallesons Stephen Jaques