“86. The justification for relocating him outside London was to make it more difficult for him to see his extremist associates … Given that there has been a concentration of Islamist extremists in London, there is a need to remove AP from that milieu. 87. This justification has to be balanced against the incontestable hardship for AP in being isolated from his mother and his brother. His evidence is that while he was in Tottenham, they would visit him about twice a week, and that every week he would see his sister’s three children who he would take to the park. His move has had a profound impact on how often he sees them. His mother has not visited him at all and his brother has visited him just twice. That is just as upsetting for his mother as it is for him, because at present she needs AP around more than ever. That is compounded by the fact that he does not know anyone in the town where he now lives, and sometimes speaks to no one in the course of the day other than short calls to his solicitors or to his mother and his brother. 88. It is true that the town where he now lives is not that far from London. The journey by rail takes about 1¾ hours and trains travel every half hour or so. It is also true that there is no limit on the length of time AP’s mother and brother can spend with him if they choose to visit him, and there is … no need for them to seek prior Home Office approval. But the practical difficulties of visiting him are not inconsiderable, bearing in mind his mother now looks after his sister’s three young children. She cannot go to the town where AP now lives on those days when she has to take the children to, or collect them from, school, and if she was to go to that town, she would have to take the children with her. It is said that she cannot go to that town without AP’s brother, because she has never left London alone. The only day of the week he could go when the children are not at school would be on Sundays. But these practical difficulties are not insuperable. The fact is that they could visit AP en famille on Sundays, as well as on other days of the week outside the school terms, and they could travel at off-peak times to get the advantage of lower fares. 89. Having said that, there is unquestionably another significant hardship for AP in having to live in the town where he now lives. It is difficult for him to feel part of the local community. He claims that the local Muslim population comes for the most part from Bengal and Pakistan. They are a close-knit and closed culture. No one in the mosque has welcomed him into the community, or asked him how he finds the area or even what his name is. The Imam shows no interest in him, though that may be the product of language differences. The mosque has simply become a place to pray. It has not become either the spiritual or the social focus of his life. He has spotted the occasional Ethiopian or Eritrean, but he has not tried to befriend them because he does not want to burden them with his problems. He goes to the gym but people there see his tag and naturally think that he is a criminal. Although he has tried to explain what a control order is, that tends to make things worse. All in all, these experiences merely serve to reinforce his sense of alienation.”
“93. At the end of the day, the issue boils down simply to a matter of judgment. Moving him out of London altogether is the most effective way of reducing the chances of him maintaining personal contact with those of his associates in London who are or may be Islamist extremists. Giving due, but not undue, deference to the view of the Secretary of State on the topic, my opinion is that, but for the view I have reached on the impact ofArticle 5 of the Convention , the need to ensure that AP does not maintain personal contact with those of his associates in London who are or may be Islamist extremists would have made it necessary, in order to prevent or restrict his involvement in terrorism-related activity, for him to be removed from London altogether. Balancing that need against the undoubted hardship which AP experiences as a result of having to live in the town where he now lives, the view I would have reached is that the move was not a disproportionate response to that need.”
“95. Although the paradigm examples of deprivation of liberty are detention in prison and house arrest, deprivation of liberty can take many other forms, and the court’s function is to look at the package of measures as a whole … [a] sense of social isolation would be felt particularly acutely when the controlled person was required to live in an area unfamiliar to him in which he had no family, friends or contacts. If he was cut off from his old haunts and acquaintances, his ability to lead any kind of normal life during non-curfew hours as well as curfew ones would be affected … I would characterise it as a form of internal exile … 97. It is the combination of the equivalent of house arrest up to the maximum period identified by Lord Brown [viz 16 hours], and the equivalent of internal exile which makes AP so socially isolated during the relatively few hours in the day when he is not under house arrest, coupled with his inability to make even social arrangements because pre-arranged meetings (otherwise than with his mother and his brother) are prohibited, which lead me to conclude that the obligations imposed on him fall on the side of the line which involves the deprivation of liberty rather than the restriction of movement … [Had] he remained in London, so that he could still be visited by his mother, his brother and his sister’s three children, my view would have been different.”
“Everyone has the right to liberty and security of the person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …”
“92. The Court recalls that in proclaiming the ‘right to liberty’, paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no-one shall be dispossessed of this liberty in an arbitrary fashion. … The paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No 4 which has not been ratified by Italy [or the United Kingdom]. In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. 93. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.”
“The effect of the 18 hour curfew, coupled with the effective exclusion of social visitors, meant that the controlled persons were in practice in solitary confinement for this lengthy period every day for an indefinite duration, with very little opportunity for contact with the outside world, with means insufficient to permit provision of significant facilities for self entertainment and with knowledge that their flats were liable to be entered and searched at any time. The area open to them during their six non-curfew hours was unobjectionable in size … but they were (save for GG) located in an unfamiliar area where they had no family, friends or contacts, and which was no doubt chosen for that reason. The requirement to obtain prior Home Office clearance for any social meeting outside the flat in practice isolated the controlled persons during the non-curfew hours also. Their lives were wholly regulated by the Home Office, as a prisoner’s would be, although breaches were much more severely punishable. The judge’s analogy with detention in an open prison was apt, save that the controlled persons did not enjoy the association with others and the access to entertainment facilities which a prisoner in an open prison would expect to enjoy.”
“It is necessary to focus on the actual lives these people were required by law to lead, how far they were confined to one place, how much they were cut off from society, how closely their lives were controlled. The judge was entitled to conclude that the concrete situation in which they found themselves did deprive them of their liberty within the meaning of Article 5 …”
“I have reached the clear conclusion that 18 hour curfews are simply too long to be consistent with the retention of physical liberty. In my opinion they breach Article 5. I am equally clear, however, that 12 or 14 hour curfews … are consistent with physical liberty. Indeed, I would go further and, rather than leave the Secretary of State guessing as to the precise point at which control orders will be held vulnerable to Article 5 challenges, state that for my part I would regard the acceptable limit to be 16 hours, leaving the suspect with 8 hours (admittedly in various respects controlled) liberty a day. Such a regime, in my opinion, can and should properly be characterised as one which restricts the suspect’s liberty of movement rather than actually deprives him of his liberty. That, however, should be regarded as the absolute limit. Permanent home confinement beyond 16 hours a day on a long term basis necessarily to my mind involves the deprivation of physical liberty. And, although naturally I recognise that this cannot be the touchstone for the distinction, I think that any curfew regime exceeding 16 hours really ought not to be imposed unless the court can be satisfied of the suspect’s actual involvement in terrorism, the higher threshold test that would apply to the making of derogating control order.”
“Despite the explicit reluctance of several of your lordships to suggest the point at which curfews would, by virtue of their length, involve the deprivation of liberty, I remain unrepentant for doing so. I recognise of course, that ‘situations may be many and various’ (Baroness Hale of Richmond, at paragraph 63), that ‘the overall factoral matrix’ is important (Lord Carswell, at paragraph 84) and that the decision whether or not a particular non-derogating control order involves a deprivation of liberty is one for the judge, appealable only for error of law. As mentioned, however, the other conditions and circumstances of these six control orders (and, indeed, those under consideration in the related appeals) are all broadly similar and, as Lord Bingham points out in paragraph 11 of his opinion in Secretary of State for the Home Department v E … what principally must be focused on is the extent to which the suspect is ‘actually confined’: ‘other restrictions (important as they may be in some cases) are ancillary’ and ‘[can] not of themselves effect a deprivation of liberty if the core element of confinement … is insufficiently stringent.’ Just so there is no mistake about it, my view is that, taking account of conditions and circumstances in all these various control order cases, provided ‘the core element of confinement’ does not exceed 16 hours a day, it is ‘insufficiently stringent’ as a matter of law to effect a deprivation of liberty. Beyond 16 hours, however, liberty is lost.”
“… 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 12 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.”
“(1) Keith J erred in law in concluding that the obligations imposed by the control order following the modification deprived AP of his liberty, because when considering the decision of the House of Lords in … JJ … , he wrongly failed to take into account the common facts of the cases considered by the House of Lords, and/or double-counted the features of social isolation and difficulty with making social arrangements that were relevant in JJ and in AP’s case. (2) In any event, Keith J erred in law in so concluding because a curfew of 16 hours is as a matter of law insufficiently long to amount to a deprivation of liberty. (3) Further or in the alternative, Keith J erred in law in relying on the inability of AP’s mother, sibling and nephews/nieces to visit him as the decisive factor in rendering the control order obligations a deprivation of liberty, as the question whether there is a deprivation of liberty does not depend on the ‘subjective’ or person specific impact of the measures on the controlled person.”
“So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measures necessary … If these requirements are met however it will be proper to conclude that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 right of the individual members of the crowd whose freedom of movement is restricted by them.”
“The starting point in any consideration of deprivation of liberty is the ‘core element’ of confinement.”
“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.”
“The fact is that they could visit AP en famille on Sundays, as well as other days of the week outside the school terms, and they could travel at off-peak times to get the advantage of lower fares.”
“I find it impossible to say that a person in the position of LL is for practical purposes in prison. To describe him in such a way would be an extravagant metaphor. A person who lives in his own flat, has a telephone and whatever other conveniences he can afford, buys, prepares and cooks his own food, and is free on any day between 10 am and 4 pm to go at his own choice to walk the streets, visit the shops, places of entertainment, sports facilities and parks of a London borough, use public transport, mingle with the people and attend his place of worship, is not in prison or anything that can be called an approximation to prison. True, his freedom of movement, communication and association is greatly restricted compared with an ordinary person. But that is not the comparison which the law requires to be made. The question is rather whether he can be compared with someone in prison and in my opinion he cannot.” (para 45) He criticised the statement of Lord Phillips LCJ (in the Court of Appeal) that the judge had to make - “a value judgment as to whether, having regard to 'the type, duration, effects and manner of implementation' of the control orders they effected a deprivation of liberty.”
“For the reasons I gave in [JJ], I do not think that these restrictions come anywhere near amounting to a deprivation of liberty in the sense contemplated by the Convention.” iii) Baroness Hale(para 56) agreed with Lord Bingham on this issue, having nothing to add. iv) Lord Carswell(para 78) referred to his own opinion in JJ, again without reference to the fact that he had been in the minority; he agreed that the judge had been wrong to hold that there had been a deprivation of liberty “for the reasons which I set out in that opinion”. v) Lord Brown(para89) noted that the order subjected AF to 14 hours confinement and commented: “For the reasons given in my judgment in JJ's case I do not regard that as involving a sufficient degree of physical confinement to constitute a deprivation of liberty as opposed to a restriction of AF's freedom of movement.”
“It is the combination of the equivalent of house arrest up to the maximum period identified by Lord Brown [viz 16 hours], and the equivalent of internal exile which makes AP so socially isolated during the relatively few hours in the day when he is not under house arrest, coupled with his inability to make even social arrangements because pre-arranged meetings (otherwise than with his mother and his brother) are prohibited, which lead me to conclude that the obligations imposed on him fall on the side of the line which involves the deprivation of liberty rather than the restriction of movement …”