Secretary of State for the Home Department (Respondent) v. E and Another (Appellants)

Issues

(1) Does a non-derogating control order made against the appellant violates his right to liberty and security of person under Article 5 of the European Convention on Human Rights
(2) Had the Secretary of State for the Home Department breached its duty by having failed to keep under review the possibility of a prosecution, and having renewed the order without satisfying that requirement

Considerations first issue

Lord Bingham of Cornhill: The obligations imposed on E by the control order made on 12 March 2005 and since renewed contains a number of obligations similar to those noted in JJ and others. Thus, for example, he must wear an electronic tag; he must reside at a specified address; he must report to a monitoring company each day on first leaving his residence and on his last return to it; the permission of the Home Office is required in advance (with name, address, date of birth and photographic evidence of identity supplied) for most visitors to the residence; he must obtain the agreement of the Home Office in advance to attend most pre-arranged meetings outside his residence; his residence is liable to be searched by the police at any time; and he is permitted to have no communications equipment of any kind save for one fixed telephone line and one or more computers, provided any computer is disabled from connecting to the internet. (para 6)

The obligations imposed on E do, however, differ from those imposed on JJ and others in respects accepted by the courts below as material. The curfew to which he is subject is of twelve hours' duration, from 7.0 p.m. to 7.0 a.m., not eighteen hours. The residence specified in the order is his own home, where he had lived for some years, in a part of London with which he is familiar. By a variation of the order his residence is defined to include his garden, to which he thus has access at any time. He lives at his home with his wife and family, and Home Office permission is not required in advance to receive visitors under the age of ten. Five members of his wider family live in the area, and have been approved as visitors. He is subject to no geographical restriction during non-curfew hours, is free to attend a mosque of his choice, and is not prohibited from associating with named individuals. The judge found (para 231) that E does not lack a social network, goes to the mosque, takes his older children to school, picks them up, goes shopping and sees family members who live in the area. (para 7)

As noted in JJ, para 11, an appeal lies from the court of first instance in control order proceedings only on a point of law. This is a provision of some importance, since the legislation does not permit each successive court in the curial hierarchy to make its own independent evaluation. This is not a point which the Court of Appeal in this case specifically addressed. But it must, I think, be inferred that the Court of Appeal found the judge to have erred in law in failing to focus on the extent to which E was actually confined, here an overnight curfew of twelve hours, a period accepted by the Strasbourg authorities, as compared with the very much more stringent restriction in JJ. The matters which particularly weighed with the judge were not irrelevant, but they could not of themselves effect a deprivation of liberty if the core element of confinement, to which other restrictions (important as they may be in some cases) are ancillary, is insufficiently stringent. This is in my opinion a sound criticism of the judge's approach, and the Court of Appeal was right to regard this case, on its special facts, as distinguishable from JJ. (para 11) I would dismiss E's appeal on this point. (para 12)

Baroness Hale of Richmond:  to the first issue, whatever the point at which the cumulative effect of the restrictions imposed in a control order crosses the boundary into deprivation of liberty, as in my view it did in the JJ cases, that point is not reached in this case. The starting point in any consideration of deprivation of liberty is the "core element" of confinement. The length of the curfew in this case is within the range which Strasbourg has accepted as merely restricting liberty. Nor is there anything to make it more severe: the appellant is confined to his own home with his wife and children; other family members and the children's friends were allowed to visit. These factors greatly reduce the extent to which he is cut off from society even during the curfew hours. Outside those hours, he is not subject to any geographical restriction and can attend the mosque of his choice. He does have to get Home Office approval for visitors to his home and for pre-arranged meetings outside it and his home is subject to intrusive searches at any time. These may call in question certain other convention rights but do not, on their own, turn his "concrete situation" into one in which he is deprived of his liberty. (para 25)

Lord Carswell: On the first issue, I held in Secretary of State for the Home Department v JJ and others [2007] UKHL 45 that the control orders relating to the appellants in that appeal did not have the effect of depriving the appellants of their liberty. The reasons which I set out in my opinion given in that appeal, to which I would refer, apply also in the present case, taking proper account of E's circumstances. I would accordingly hold that E has not been deprived of his liberty. (para 31)

Considerations second issue

In the submission of E, it is a fundamental premise of the 2005 Act in general, and section 8 in particular, that where there are realistic prospects of prosecuting an individual against whom it is proposed to make a control order, he will indeed be prosecuted. There is strong support for this contention. In Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2006] QB 415, para 53, the Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) described it as implicit in the scheme of the Act that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order. In its judgment in the present case (para 73) the Court of Appeal described it as "axiomatic" that a control order is only made when it is considered that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. Reference was made to a number of strong ministerial assurances in Parliament to this effect. The Secretary of State in his written case accepts that "The scheme of the [Act] is that control orders should only be made where an individual cannot realistically be prosecuted for a terrorism-related offence". Thus there can be no doubt about the governing principle. Nor in my opinion can there be doubt about its importance, since the control order regime is not intended to be an alternative to the ordinary processes of criminal justice, with all the safeguards they provide for those accused, in cases where it is feasible to prosecute with a reasonable prospect of success.(para 14)

In submission to the House, it was argued for E that the absence of a realistic prospect of prosecution is a condition precedent to the making by the Secretary of State of a non-derogating control order. Thus the Secretary of State must not only consult under section 8(2), in a case falling within section 8(1), but must be given to understand that it is not feasible to prosecute with a reasonable prospect of success. Unless this was so, it was argued, it could not be "necessary" to impose obligations under a control order, since it would not be shown that the public could not be protected by arresting, charging and prosecuting the individual. This more ambitious submission must also fail, for the reason given in the last paragraph. But there are in my view strong practical reasons for rejecting it. The situation is, by definition, one in which the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity (section 2(1)(a)). He must consider that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual (section 2(1)(b)). There may be a need to act with great urgency (section 3(1)(b)). The potential risk may be very great. It is one thing to require the Secretary of State to consult, as section 8(2) does in cases falling within section 8(1), which is the great majority of cases. But it is quite another to require him to obtain a clear answer: this is something the chief officer of police is unlikely to be in a position to give, he himself being subject to a duty (section 8(5)) to consult the relevant prosecuting authority which will in turn require time to consider the matter, and very probably to seek the advice of counsel. The condition precedent contended for would have the potential to emasculate what is clearly intended to be an effective procedure, and cannot be taken to represent the intention of Parliament. (para 16)

The Secretary of State did consult the chief officer of police, who did consult the Crown Prosecution Service, concerning the prospect of successful prosecution before the order was made, and the advice he received was clearly negative (see paras 251, 254, 258, 266). The consultation took place before the Act was passed, but such consultation was effective by virtue of section 8(6). (para 17)

The thrust of E's argument before the House was directed not to lack of consultation before the order was made on 12 March 2005 but on the Secretary of State's failure to take steps open to him to ensure that the possibility of prosecution was kept under effective review thereafter. Under section 8(4) of the Act the duty of keeping the prospect of prosecution under review is laid on the chief office of police, in conjunction (where he considers it appropriate: s.8(5)) with the relevant prosecuting authority (para 18)

On 30 September 2003 first instance judgments were given by a Belgian court, affirmed on appeal in Belgium on 21 February 2005. The effect of the judgments was to implicate E in terrorist-related activity. The Secretary of State learned of these judgments in September 2005, after the control order had been made against E but before it was renewed. He received copies of the judgments in November 2005, and English translations became available in January 2006. Before renewal of the order in March 2006 the chief officer of police informed the Secretary of State that there was insufficient evidence to prosecute. But neither the police nor the CPS has received copies of these judgments. They have, however, as the judge found (para 286), been part of the open evidence relied on by the Secretary of State since September 2006, and were now at the core of the Secretary of State's open national security case against E. It is pointed out on behalf of E that the Belgian judgments rested in part on intercept evidence which, because obtained abroad, would be admissible in an English court, that the availability of this evidence in the public domain could affect the judgment on whether it was in the public interest to prosecute, and that some of the Belgian material had already been relied on to prosecute defendants in this country. (para 19)

The Secretary of State's failure to consider the impact of the Belgian judgments on the prospects of prosecuting E meant that his continuing decision to maintain the control order was flawed. The breach was not a technical one (para 293), and the judge would have quashed the order on this ground were he not already quashing it for incompatibility with article 5 (para 310). The Court of Appeal found (para 97) that the judge had been right to find a breach by the Secretary of State of his MB duty to keep the possibility of prosecution under review, even though the decision whether or not to prosecute was clearly not his. The breach  "arose from the omission of the Secretary of State himself to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration".But although tending to agree with the judge that the breach was not technical (para 102), the Court of Appeal differed from him on remedy. It was satisfied (para 103) that even if the Secretary of State had acted diligently and expeditiously in relation to the Belgian judgments they could not have given rise to a prosecution at any time material to this case. The question to be asked (para 105) was whether a particular breach had materially contributed to and vitiated the decision to make the control order, and the judge had erred in law in holding without further analysis that the breach justified the remedy of quashing the order. (para 20)

Counsel for E criticised the Court of Appeal's reasoning on this point, but I do not think its approach was wrong in principle. It was certainly regrettable that the Belgian judgments were not made available promptly to the appropriate authorities, perhaps suggesting that the duty of continuing review by the Secretary of State was not appreciated before the Court of Appeal's judgment in MB in August 2006 or, if appreciated, was not treated with the seriousness which its importance deserved. But I do not for my part think that the Court of Appeal's reasoning in this case can be faulted. If in any case it appeared that the duty to consult under section 8(2) or the duty to keep the prospect of prosecution under review had been breached, and also that but for the breach the individual could and should properly have been prosecuted with a reasonable prospect of success, there would be strong grounds for contending that the control order was not or was no longer necessary and that the Secretary of State's decision to make or maintain it was flawed. It might then be appropriate to quash the order. But the House cannot hold, on the material before it, that that condition was met in this case, and the order should not have been quashed (para 21). On this point also I would dismiss E's appeal (para 22)

Baroness Hale of Richmond: As to the second issue, a control order must always be seen as 'second best'. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course. That is why section 8 was inserted in the 2005 Act. But there are practical difficulties: the Secretary of State does not control the prosecution process. The police investigate and the Crown Prosecution Service decide whether or not to prosecute. There are very good reasons for this division of responsibility: it injects an important element of independence and objectivity into the decision to prosecute. But it makes the task of the Secretary of State, in considering the alternative of prosecution, all the more difficult. She does not have the power to choose between the two. (para 26)

It is noteworthy that section 8 does not impose a duty upon the Secretary of State to consider whether there is a reasonable prospect of a successful prosecution; still less does it require her to have formed the view that there is no such prospect. All it does is require her to consult. I agree, for the reasons given by my noble and learned friends, that compliance with the duty to make inquiries of the police under section 8(2) is not a condition precedent to making a control order; nor is the receipt of a negative reply to those inquiries. But both are highly relevant factors to be taken into account by the Secretary of State when considering whether a control order is 'necessary'. The court, in considering whether the Secretary of State's decision was flawed, will be reluctant to confirm that decision if the requirements of section 8 have not been complied with or, indeed, if inquiries reveal that there is a reasonable prospect of a successful prosecution. (para 27)

Nor does section 8 impose an express duty upon the Secretary of State to keep the matter under review. But, as the Court of Appeal held in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2007] QB 415, para 44, it is implicit in the Act that the Secretary of State must keep the decision to impose a control order under review; and, as the Court of Appeal held in this case, that duty involves her, not only in consulting the police from time to time, but also in sharing such information as is available to her, but may not have reached the police, which is relevant to the prospects of a successful prosecution. These are all matters which the court will wish to consider in deciding whether the decision to make or maintain the control order was flawed. Para 28)

On the facts of this case, however, I agree that the order should not have been quashed on this ground; still less on the ground that it constituted a deprivation of liberty. (para 29)

Lord Carswell: On the second issue, the statutory duty of the Secretary of State under section 8(2) of the Prevention of Terrorism Act 2005 is, as my noble and learned friend Lord Bingham of Cornhill has observed in paragraph 15 of his opinion, one to be taken seriously. Nevertheless, as Beatson J and the Court of Appeal have correctly held, it does not constitute a condition precedent to the making of a non-derogating control order. For the reasons given by Lord Bingham in paragraphs 15 and 16 of his opinion, I also consider that the absence of a realistic prospect of prosecution is not a condition precedent to the making of such an order. (para 32)

In my opinion the judge and the Court of Appeal were plainly right in their conclusion that it is the duty of the Secretary of State to keep the decision to impose a control order under review. (para 33)

The Court of Appeal went on to hold that not every breach of an obligation renders a subsequent decision flawed. It was of the opinion that the Belgian judgments could not have given rise to a prosecution at any time material to this case. Like Lord Bingham, I do not think that its reasoning can be faulted. It was therefore correct to hold that the control order should not have been quashed. (para 34)

I accordingly would hold that the appellant has not made out either of the grounds on which he has based his case before the House and dismiss the appeal. (para 35)