SSHD v AP  UKSC 24
Control order/deprivation of liberty case. [Summary required.]
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
HUMAN RIGHTS — Right to liberty — Suspected terrorist — Home Secretary making non-derogating control order against respondent — Respondent required to remain in specified residence for 16 hours a day — Specified residence 150 miles away from home town — Whether overall effect of curfew and social isolation amounting to unlawful deprivation of liberty — Whether particular difficulties of family in visiting respondent to be taken into account — Human Rights Act 1998, Sch 1, Pt I, art 5 — Prevention of Terrorism Act 2005 (c 2), s 2
Conditions in a control order which were proportionate restrictions upon the right to private and family life could nevertheless be decisive in determining that the overall effect of the order amounted to a deprivation of liberty. The difficulties of the controlee’s family in visiting him in a particular specified location could be taken into account when considering whether a control order constituted a deprivation of liberty.
The Supreme Court so held in allowing the appeal of AP against the decision of the Court of Appeal (Wall and Maurice Kay LJJ, Carnwath LJ dissenting) on 15 July 2009B allowing the Secretary of State’s appeal against the decision of Keith J on 12 August 2008 B that the modified obligations in a control order imposed on AP pursuant to s 2 of the Prevention of Terrorism Act 2005 deprived him of his liberty in breach of art 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
LORD BROWN OF EATON-UNDER-HEYWOOD JSC said that the control order had subjected AP to a 16-hour curfew and electronic tagging, together with other restrictions on association and communication, and originally had required him to live at an address in North London. His family, friends and associates had always lived in the London area. However, the Secretary of State had modified the terms of the order, requiring him to move to an address in a Midlands town some 150 miles away, in order to make it more difficult for him to see his extremist associates. There was no dispute about the need for a control order, only about its terms. The judge had rejected AP’s case under art 8 on the ground that the interference with his family life was justified and proportionate in the interests of national security, but he had decided that the overall effect of a 16-hour curfew and AP’s social isolation constituted an art 5 deprivation of liberty. The first issue was whether conditions which were proportionate restrictions upon art 8 rights could “tip the balance” in relation to art 5. The answer was surely an obvious “yes”. If an art 8 restriction was a relevant consideration in determining whether an order breached art 5, then by definition it was capable of being a decisive factor—capable of tipping the balance. The second issue was whether the judge could take into account the particular difficulties of the subject’s family in visiting him in a particular location, when considering whether or not an order amounted to a deprivation of liberty. The Secretary of State submitted that, in assessing the weight to be given to the restrictive effects of a condition, the judge should ignore everything that depended on the individual circumstances of the family. There was nothing in the Secretary of State’s argument. By the same token that it was relevant that whilst AP must live in the Midlands his family were in London, so too it was relevant whether their circumstances were such that their distance away so disrupted contact between them as to cause or substantially contribute to AP’s social isolation. Plainly the family could not be allowed to thwart what would otherwise be an appropriate residential requirement by unreasonably failing to take the opportunities open to them to visit AP and so save him from social isolation, but in those circumstances it would be the family’s unreasonable conduct, not the residence condition, which was the operative cause of AP’s isolation and which should be disregarded. It was not suggested that the family had behaved unreasonably in failing to overcome more effectively the practical difficulties they faced in visiting AP on a more regular basis. Accordingly, the judge’s decision should be restored.
LORD RODGER OF EARLSFERRY and DYSON JJSC gave concurring judgments.
LORD PHILLIPS OF WORTH MATRAVERS PSC, LORD SAVILLE OF NEWDIGATE, LORD WALKER OF GESTINGTHORPE and LORD CLARKE OF STONE-CUM-EBONY JJSC agreed.
B;  WLR (D) 149
SC(E): Lord Phillips of Worth Matravers PSC, Lord Saville of Newdigate, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Clarke of Stone-cum-Ebony, Dyson JJSC: 16 June 2010
Appearances: Edward Fitzgerald QC and Kate Markus (instructed by Wilson & Co) for AP; Robin Tam QC, Tim Eicke and Rory Dunlop (instructed by Treasury Solicitor) for the Secretary of State.
Reported by: Jill Sutherland, barrister.