Secretary of State for the Home Department v E and another [2007] UKHL 47, [2007] All ER (D) 27 (Nov)
House of Lords
Lord Bingham, Lord Hoffmann, Baroness Hale, Lord Carswell and Lord Brown
31 October 2007
If it appears that the duty to consult under s 8(2) of the Prevention of Terrorism Act 2005 (PTA 2005) or the duty to keep the prospect of prosecution under review has been breached, and also that but for the breach the individual could and should properly have been prosecuted with a reasonable prospect of success, a control order should be quashed.
Ben Emmerson QC, Raza Husain and Helen Law (instructed by Birnberg Peirce & Partners) for the claimant.
Ian Burnett QC, Philip Sales QC, Tim Eicke, Cecilia Ivimy and Andrew O’Connor (instructed by the Treasury Solicitor) for the secretary of state.
David Pannick QC and Alex Bailin (instructed by Liberty) for the National Council for Civil Liberties as intervener.
Michael Supperstone QC and Judith Farbey (instructed by the Special Advocates’ Support Office) as special advocates.
The claimant was a Tunisian national with exceptional leave to remain in the UK. He was married to a Jordanian national and they had five children under the age of nine. In December 2001, he was certified by the secretary of state under the Anti-terrorism, Crime and Security Act 2001 (ACSA 2001), s 21. In March 2005, he became subject to a non-derogating control order made under PTA 2005. He applied to challenge the order on two grounds: (i) that the effect of the order was to deprive him of his liberty, in breach of Art 5 of the European Convention on Human Rights (the Convention); and (ii), that the secretary of state had breached his statutory duty under PTA 2005, s 8(1) in relation to consideration of criminal prosecution. Those contentions succeeded at first instance but were overturned by the Court of Appeal. The claimant appealed to the House of Lords.
Lord Bingham:
A number of the obligations imposed by the order were similar to those imposed in the case of Secretary of State for the Home Department v JJ [2007] All ER (D) 489 (Oct), in which control orders had been quashed. The obligations imposed on the claimant, however, differed from those in JJ in the following respects: the claimant was subject to a curfew of 12 hours’ duration rather than 18 hours. The residence specified in the order was his own home, where had lived for some years. By a variation of the order his residence included his garden, to which he thus had access at any time. He lived with his wife and family, and Home Office permission was not required in advance to receive visitors under the age of 10. Five members of his wider family lived in the area and had been approved as visitors. He was subject to no geographical restriction during non-curfew hours, was free to attend a mosque of his choice, and was not prohibited from associating with named individuals.
The Court of Appeal had treated physical liberty as the starting point and the central issue, and judged that the degree of physical restraint on the claimant’s liberty was far from a deprivation of liberty in Art 5 terms. It discounted the judge’s analogy with prison accommodation and also the deterrent effect of the requirement that visitors be approved in advance. It noted the distinctions between the restrictions in this case and those in JJ, and concluded that this case was plainly distinguishable.
His lordship agreed and dismissed the appeal on that point.
He turned to the issue regarding prosecution. Section 8 of PTA 2005 provided that the secretary of state had to consult the police about whether there was evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism. It was then the duty of the police to secure that the investigation of the individual’s conduct with a view to his prosecution for an offence relating to terrorism was kept under review throughout the period during which the control order has effect.
The secretary of state accepted 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”. There could be no doubt about the governing principle or its importance, since the control order regime was not intended to be an alternative to the ordinary processes of criminal justice, with all the safeguards they provided for those accused, in cases where it was feasible to prosecute with a reasonable prospect of success.
The Court of Appeal held that:
“Once it is accepted that there is a continuing duty to review…it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful…it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution.”
His lordship endorsed that view.
The materiality arose because the secretary of state had learned that in Belgian proceedings, after the control order but before its renewal, the claimant had been implicated in terrorist-related activity.
The judge concluded that the secretary of state’s failure to consider the impact of the Belgian judgments on the prospects of prosecuting the claimant meant that his continuing decision to maintain the control order was flawed. The breach was not a technical one, and the judge would have quashed it on that ground.
The Court of Appeal agreed that the breach was not technical, but disagreed with the judge as to remedy. It was satisfied 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 the case. The question to be asked was whether or not 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.
That approach was correct in principle. But the House could not hold, on the material before it, that that condition was met in this case, and the order should not have been quashed.
The appeal would therefore be dismissed.
Lord Hoffmann, Baroness Hale, Lord Carswell and Lord Brown delivered concurring opinions.
