Secretary of State for the Home Department v JJ & Ors [2006] EWHC 1623 (Admin)

"On any view those obligations are extremely restrictive. They have not been found to amount to the triggering of derogation, indeed there has been no challenge so far on that basis — but the cusp is narrow. The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet. And a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably."

"'derogating obligation' means an obligation on an individual which-- (a) is incompatible with his right to liberty under Article 5 of the Human Rights Convention; but (b) is of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order; 'designated derogation' has the same meaning as in the Human Rights Act 1998 (c. 42) (see section 14(1) of that Act); ..."

"A control order made by the Secretary of State is called a non-derogating control order."

"(7) At the full hearing, the court may confirm the control order (with or without modifications) only if-- ... (d) the obligations to be imposed by the order or (as the case may be) by the order as modified are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order."

"(3) The Secretary of State may not make to the obligations imposed by a control order any modification the effect of which is that a non-derogating control order becomes an order imposing a derogating obligation."

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..."

"The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness. This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5(1) circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom."

"100 It is impossible ever to overstate the importance of the right to liberty in a democracy. In the words of Baron Hume, Commentaries on the Law of Scotland respecting Crimes, 4th ed (1844), vol 2, p 98: 'As indeed it is obvious, that, by its very constitution, every court of criminal justice must have the power of correcting the greatest and most dangerous of all abuses of the forms of law,--that of the protracted imprisonment of the accused, untried, perhaps not intended ever to be tried, nay, it may be, not informed of the nature of the charge against him, or the name of the accuser.' These were not idle words. When Hume published the first edition of his Commentaries in 1797 grave abuses of the kind he described were within living memory. He knew the dangers that might lie in store for democracy itself if the courts were to allow individuals to be deprived of their right to liberty indefinitely and without charge on grounds of public interest by the executive. The risks are as great now in our time of heightened tension as they were then. 101 There is a third principle which the court must also recognise when it is called upon to perform its central function, which is to strike the balance between the public interest and the right to liberty. It is that the right to liberty belongs to each and every individual. Article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms enshrines this right, and section 1 of the Human Rights Act 1998 has made it part of our law. Article 5(1) defines the only situations in which a person may be deprived of his liberty, and it begins with the word 'Everyone'. The right to liberty is to be enjoyed without discrimination, as article 14 of the Convention makes clear. The basic principle is that the right belongs to everyone, whoever they may be and wherever they may have come from, who happen to be within the contracting state's territory. Everyone enjoys this right. It is a right, not a privilege."

" ... neither the common law, from which so much of the European Convention is derived, nor international human rights law allows indefinite detention at the behest of the executive, however well-intentioned. It is not for the executive to decide who should be locked up for any length of time, let alone indefinitely. Only the courts can do that and, except as a preliminary step before trial, only after the grounds for detaining someone have been proved. Executive detention is the antithesis of the right to liberty and security of person."

"It is unnecessary to recite the other sub-heads of exception: they provide an exhaustive list of the cases in which, in accordance with a procedure prescribed by law, a person may be deprived of his liberty (Ireland v United Kingdom (1978) 2 EHRR 25, 87, para 194), but none of the other exceptions is capable of applying here. Reference must, however, be made to article 2 of the Protocol No 4 to the Convention. This Protocol has not been ratified by the United Kingdom, but has been relied on by the European Court when considering what amounts to a deprivation of liberty under article 5. Article 2 of the Fourth Protocol is entitled 'Freedom of movement' and provides in para 1: 'Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement ...'"

"The task of the House is eased by the substantial agreement of the parties on the correct approach in principle. Perhaps the clearest exposition of principle by the Strasbourg court is to be found in Guzzardi v Italy (1980) 3 EHRR 333, an exposition repeatedly cited in later cases. The case concerned an applicant who, pending his criminal trial, was subject for over 16 months to a form of internal exile on an island off the coast of Sardinia. He was specially supervised in an area of 2.5 square kilometres. He was held to have suffered a deprivation of his liberty. The Commission reached this conclusion (para 90) because of the small area in which the applicant had been confined, the almost permanent supervision to which he had been subject, the all but complete impossibility of his making social contacts and the length of his enforced stay. The Italian Government challenged this analysis on a number of grounds (para 91). The court observed, at paras 92-93: '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 should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the court, 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. 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 court continued, in para 95: 'The Government's reasoning (see para 91 above) is not without weight. It demonstrates very clearly the extent of the difference between the applicant's treatment on Asinara and classic detention in prison or strict arrest imposed on a serviceman. Deprivation of liberty may, however, take numerous other forms. Their variety is being increased by developments in legal standards and in attitudes; and the Convention is to be interpreted in the light of the notions currently prevailing in democratic states.' The court went on to review the special features of the applicant's situation, and held: 'It is admittedly not possible to speak of 'deprivation of liberty' on the strength of any one of these factors taken individually, but cumulatively and in combination they certainly raise an issue of categorisation from the viewpoint of article 5. In certain respects the treatment complained of resembles detention in an 'open prison' or committal to a disciplinary unit.' 25. It is accordingly clear, as was held in HL v United Kingdom (2004) 40 EHRR 761, para 89, that 'in order to determine whether there has been a deprivation of liberty, the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question.'"

"The applicant's house arrest had been de facto fictitious, as the authorities responsible for monitoring compliance with it had been in Burgas, whereas he had been in Sofia for medical treatment. Since the end of 1996 the applicant has had the ability to change and leave his place of abode without any control."

"73. The Court notes that the applicant was arrested on 5 July 1996. On 2 October 1996 his deprivation of liberty took the form of house arrest, which lasted until 3 July 2003 (see paragraphs 34, 39 and 43 above). The Court has already held that house arrest constitutes deprivation of liberty within the meaning of Article 5 (see Mancini, § 17; Vachev, §§ 64 and 70; and Nikolova (No. 2), §§ 60 and 74, all cited above). It is furthermore unable to subscribe to the Government's argument that the applicant's house arrest did not in fact amount to a custodial measure because the authorities responsible for monitoring compliance with it were far away, which allowed him to breach it with impunity. To determine whether a person is deprived of his or her liberty the Court must look upon the actual circumstances of the regime to which he or she was subject, as a matter of law and in fact ... the fact that the applicant had the opportunity to breach his house arrest cannot lead to the conclusion that it did not fall within the ambit of Article 5(3).."

"... a prohibition on leaving his home without informing the police; an obligation to report to the police on the days indicated to that effect; an obligation to return to his house by 9 p.m. and not to leave it before 7 a.m. unless he had valid reasons for doing so and had first informed the relevant authorities of his intention."

"— not to leave the district of Rotello without first obtaining authorisation in each case from the competent judicial authority, and only on grounds relating to professional questions, studies, family or health; — to report to the Rotello police every day at 11 a.m.; — not to return home after 8 p.m. or leave home before 7 a.m. without certified need, and in any case without duly informing the authority responsible for his supervision."

"... he was permitted to be at his work place during week-days and obliged to stay at home from 7 pm until 7 a.m. during week-days and the whole day during week-ends."

"3) [PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security. 4) [PH] shall not leave the accommodation without an escort."

"14. There is little dispute about the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Article 5(1). First, a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former are governed by Article 2 of Protocol no. 4 and do not amount to a breach of Article 5. This has been repeatedly spelt out by the European Court of Human Rights in cases such as Guzzardi -v- Italy [1980] 3 E.H.R.R. 333, Ashingdane -v- United Kingdom [1985] 7 E.H.R.R. 528 and H.M.-v- Switzerland [26 February 2002] application no. 39187/98. 15. Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance. Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. Fourthly, account must be taken of the cumulative effect of the various restrictions. All these principles flow from the cases cited above. 16. Fifthly, the purpose of any measures of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise. This principle can be seen in two Strasbourg decisions. In Nielsen -v- Denmark [1988] E.H.R.R. 175 a child of about 12 was placed in a hospital psychiatric ward for children as a result of a decision by his mother, based upon medical advice. He claimed that there had been a breach of his Article 5 rights, but the European Court of Human Rights found that the objective of his hospitalisation was the protection of his health. The restrictions imposed were not in principle different from those obtaining in many hospital wards where children with physical disorders were treated. It was concluded that this regime did not amount to a deprivation of liberty within the meaning of Article 5 but was: 'a responsible exercise by his mother of her custodial rights in the interests of the child' - para. 73. 17. The second decision illustrating this principle is perhaps of greater relevance to the present appeal. In H.M. -v- Switzerland the applicant was a woman who at the age of 84 had been placed compulsorily in a foster home. The Court found that she had been placed there by the Swiss authorities in her own interests in order to provide her with necessary medical care and satisfactory living conditions and hygiene. In those circumstances the Court concluded, citing the Nielsen case, that her placement did not amount to a deprivation of liberty within Article 5(1), but was a responsible measure taken by that competent authorities in the applicant's interests. Therefore, there was no violation of Article 5(1)."

"2. The claimant, who was born on 5th March 1983, was released from Dartmoor on 16th November 2004, after serving the whole of a sentence of 30 months in a Young Offender Institution for four offences of obtaining by deception, six of burglary and theft and one of aggravated vehicle taking. 3. Section 65(1) of the 1991 Act says, so far as is material to this case: 'Where a person under the age of 22 years (the offender) is released from a term of detention in a Young Offender Institution ... he shall be under the supervision of a social worker of a local authority social services department.' By subsection (3), the supervision period begins on the offender's release and ends 3 months later. 4. Subsection (5) says: 'Where a person is under supervision under this section, he shall comply with such requirements, if any, as may for the time being be specified in a notice from the Secretary of State.' It is such a notice with which this case is concerned. Two of its requirements are said to be in breach of Article 5 of the Human Rights Convention. 5. The licence issued in this case was to expire on 15th February 2005. It was largely in a standard form used by the Home Office. It recited the objectives of supervision, which were to protect the public, prevent re-offending, and achieve the offender's successful reintegration into the community. 6. ... 7. It is the eighth and tenth requirements which the claimant has permission to challenge. They say: 'while under supervision you must... (viii) Permanently reside at Lawson House Probation Hostel, 13/14, Paradise Place Stoke Plymouth and must not leave to live elsewhere without obtaining the prior written approval of your supervising officer; thereafter you must reside as directed by your supervising officer...(x)Not leave Lawson House Hostel unescorted by hostel staff, without the prior approval of your supervising officer, Hostel Senior Probation Officer or the Hostel Probation Officer. (This condition will be reviewed on a monthly basis).'"

"These principles were helpfully summarised by Keene LJ in the Secretary of State for the Home Department v The Mental Health Review Tribunal (PH) ..., a case concerning the Tribunal's powers to attach conditions to a direction to discharge a restricted patient. At paragraph 16 Keene LJ added to what was said in Guzzardi, a further relevant consideration based upon other decisions of the Strasbourg court. This was that: 'The purpose of any measure of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise.'"

"22. On behalf of the Secretary of State, Mr Sheldon submits that the requirements in question do not amount to a deprivation of liberty. The claimant is not confined to any particular part of the hostel and may go out with an escort or on his own, if he has the necessary permission. He has not yet gone out unescorted, but this is because he has absconded. One of the purposes of residence at the hostel is to assist the claimant's resettlement into the community, as is the escort requirement. The period of supervision is only for 3 months and the requirements of the licence are not enforced by physical restraint. 23. Mr Lloyd does not suggest that the requirement permanently to reside at the hostel amounts to a deprivation of liberty on its own. It obviously does not. The question is, therefore, whether cumulatively the additional requirement restricting the claimant's ability to leave the hostel, pushes this case across the line into Article 5 territory."

"24. I do not think it does for the reasons given by Mr Sheldon. I would add, however, that I think each of the purposes expressed at the beginning of the licence are relevant in considering the cumulative effect of these restrictions. The restrictions are designed to provide the claimant with a fixed address and the support of the probation service so as to prevent him re-offending and therefore to protect the public and to attempt to achieve his successful reintegration into the community. The need for an escort or express permission to be out on his own, was obviously considered to be necessary in his case to further these objectives. This requirement has to be renewed each month, so if the claimant starts to show he can be trusted, which self evidently he has failed to do so far, requirement (x) may be lifted. 25. In any event, the restriction will only last for 3 months, a not unreasonable time considering the claimant was last at large for any length of time nearly 3 years ago. For those reasons I would dismiss this application."

"41. It is true, as the Secretary of State submits, that states members of the United Nations and the Council of Europe have been strongly urged since 11 September 2001 to cooperate and share information in order to counter the cruel and destructive evil of terrorism. But these calls have been coupled with reminders that human rights, and international and humanitarian law, must not be infringed or compromised. Thus, while the Council of Europe's Parliamentary Assembly recommendation 1534 of 26 September 2001 refers to co-operation 'on the basis of the Council of Europe's values and legal instruments', it also refers to Parliamentary Assembly resolution 1258, para 7 of which states: 'These attacks have shown clearly the real face of terrorism and the need for a new kind of response. This terrorism does not recognise borders. It is an international problem to which international solutions must be found based on a global political approach. The world community must show that it will not capitulate to terrorism, but that it will stand more strongly than before for democratic values, the rule of law and the defence of human rights and fundamental freedoms.'"

"(a) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for an order imposing obligations on the controlled person to continue in force; and (b) considers that the obligations to be imposed by the renewed order are necessary for purposes connected with preventing or restricting involvement by that person in terrorism-related activity."

"... the applicant should: - start looking for work within a month, establish his residence in the prescribed locality, inform the supervisory authorities immediately of his address and not leave the place fixed without first notifying them; - report to the supervisory authorities twice a day and whenever called upon to do so; - lead an honest and law-abiding life and not give cause for suspicion; - not associate with persons convicted of criminal offences and subjected to preventive or security measures; - not return to his residence later than 10 p.m. and not go out before 7 a.m., except in case of necessity and after having given notice in due time to supervisory authorities; - not keep or carry any arms; - not frequent bars or night-clubs and not take part in public meetings; - inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call."

"a) the area around which Mr Guzzardi could move 'covered no more than a tiny fraction of an island to which access was difficult and about nine-tenths of which was occupied by a prison' [§95] b) 'Mr Guzzardi was housed in part of the hamlet of Cala Reale which consisted mainly of the buildings of a former medical establishment which were in a state of disrepair or even dilapidation, a carabinieri station, a school and a chapel.' [ibid] c) 'He lived there principally in the company of other persons subjected to the same measure and of policemen.' [ibid] d) 'The permanent population of [the island of] Asinara resided almost entirely at Cala d'Oliva, which Mr Guzzardi could not visit, and would appear to have made hardly any use of its right to go to Cala Reale.' [ibid] e) 'Consequently, there were few opportunities for social contacts available to the applicant other than with his near family, his fellow 'residents' and the supervisory staff.' [ibid] f) 'Supervision was carried out strictly and on an almost constant basis.' [ibid] g) 'Mr Guzzardi was not able to leave his dwelling between 10 p.m. and 7 a.m. without giving prior notification to the authorities in due time.' [ibid] h) 'He had to report to the authorities twice a day and inform them of the name and number of his correspondent whenever he wished to use the telephone.' [ibid] i) 'He needed the consent of the authorities for each of his trips to Sardinia or the mainland, trips which were rare and, understandably, made under the strict supervision of the carabinieri.' [ibid] j) 'He was liable to punishment by 'arrest' if he failed to comply with any of his obligations.' [ibid]; and k) '... more than 16 months elapsed between his arrival at Cala Reale and his departure for Force [ibid]. It also seems to have been a relevant consideration for the Court that: Several items of documentary evidence filed thus show that the island was not suitable for a normal application of the 1956 and 1965 Acts. This was eventually recognised by the Italian State. [§95]"

"36. We agree with our predecessor Committee's view that, in principle, civil restriction orders imposing preventive measures, after a proper judicial process, are capable of being human rights compatible. A version of non-derogating control orders, with proper judicial involvement and a rigorous process to ensure proportionality to the threat, would not therefore necessarily be incompatible with our human rights obligations. 37. Our concern, however, is whether the Act provides sufficient clarity about the distinction between a derogating and a non-derogating control order to prevent the making in practice of control orders purporting to be non-derogating control orders which in fact amount to a deprivation of liberty. A number of the obligations enumerated in section 1(4) may not on their own be such a restriction on liberty as to amount to a deprivation of liberty within the meaning of Article 5 and therefore require derogation, but they are capable of constituting such a deprivation when combined with other obligations. 38. We accept that the question of whether a particular control order imposes obligations which cumulatively amount to a deprivation of liberty is a matter to be decided by a court on the facts of a particular case, because it depends on an appraisal of the concrete situation and the application of fact-specific criteria such as the type, duration, effects and manner of implementation of the measure in question. In our view, however, this does not mean that Parliament should renew the legislative framework and leave it to the courts to decide if non-derogating control orders amount to deprivations of liberty and are therefore unlawful. We know from Lord Carlile's report that 'most but not quite all' of the control orders so far issued have contained the list of obligations set out in the proforma schedule annexed to his report. In our view, those obligations are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article. 39. During the passage of the Act the Home Secretary acknowledged that a combination of the measures contained in section 1(4) of the Act is capable of amounting to a deprivation of liberty within the meaning of Article 5 ECHR, even though those obligations are not provided for in the derogation order. However, the Government argued that this does not give rise to any concern about compatibility because the Secretary of State is under an obligation under s.6 of the Human Rights Act 1998 to act compatibly with Convention rights when exercising his new power to impose obligations in a control order, and any control order which contained such a combination of measures as to amount to a deprivation of liberty would therefore be unlawful under the Human Rights Act and quashed by the courts on appeal on that ground. 40. We are unable to be so sanguine. In our view the very structure of the Act does not reflect the fact that obligations which by themselves only amount to restrictions on liberty are capable of giving rise to deprivations of liberty in combination with other obligations. The Act draws a rigid distinction between non-derogating control orders and derogating control orders and presupposes that it is only obligations which amount to a deprivation of liberty in their own right (such as 'full' house arrest) which will require derogation. Lord Carlile in his Report appears to assume that obligations only amount to a deprivation of liberty for the purposes of Article 5, and therefore require derogation, if they impose house arrest '24/7', that is, full house arrest. That is not correct as a matter of Convention case-law, as explained above. 41. It does not seem to us to be an adequate answer to say that any control order which imposed obligations which in combination amounted to a deprivation of liberty would be unlawful under the Human Rights Act in the absence of a derogation. In our view when creating such an unprecedented power for the executive to interfere with a wide range of Convention rights, the legal framework which creates the power should seek to ensure on its face that the power will not be used in a way which amounts to a deprivation of liberty in the absence of a derogation. The power to impose obligations in control orders in section 1(4) of the Act is not only likely, on the face of the Act, to be exercised in breach of the right to liberty in Article 5(1), but appears to us, from the evidence in Lord Carlile's report alone, confirmed by the evidence we have received, to have been so exercised in practice. 42. On this ground alone we seriously question the proposal to renew the provisions of the Prevention of Terrorism Act 2005 without Parliament's having had a proper opportunity to debate whether a derogation to permit such deprivations of liberty would be justified as being strictly required by the exigencies of the situation."

"Section 1(4) contains a menu of potential obligations up and to including full-time house arrest. Such 24/7 house arrest would involve derogation."

"16. Control orders raise not only general points of constitutional principle concerning the rule of law and the separation of powers, but also a number of specific concerns regarding their compatibility with the rights guaranteed by the ECHR. In so far as the control orders break new legal ground, it is difficult to assess their compatibility with the ECHR with certainty. A number of concerns can, however, be raised. 17. The first question to arise is whether the restrictions applied in respect of non-derogating control orders are capable of amounting to a deprivation of liberty for the purposes of Article 5(1) ECHR. On the face of it, they cannot, as the Act states that control order obligations within the scope of Article 5(1) ECHR would require a derogation and be subject to derogation order proceedings. The Act does not, however, as noted, provide for any clear cut off point. This is understandable as it would be difficult to provide a clear limit, in particular where there might be many combinations of a variety of different restrictions which are imposable. House arrest would, for instance, clearly, fall within the scope of Article 5(1) ECHR. However, there might be, a strict combination of other restrictions on movement, contacts and residence, falling just short of this. The question of whether the restrictions imposed by the non-derogating control order amount to a deprivation of liberty falling within the scope of Article 5(1) CEDH must inevitably be determined on a case-by-case basis. It is of the utmost importance, therefore, that this appreciation should not lie exclusively with the Secretary of State and that the court be able to determine for itself whether this threshold has been breached."

"The Act permits a control order to impose obligations amounting to a deprivation of liberty within the meaning of Article 5 of the ECHR ('derogating obligations'), but only where the pre-conditions set out in the Act have been met. First, there must exist a 'designated derogation', in other words, a derogation from Article 5 that has been designated by an order approved by both Houses of Parliament ('designation order'). Second, the derogating obligations in the control order must be of a description set out in the designation order. A control order containing derogating obligations ('derogating control order') is made by a court, on application by the Secretary of State. If a control order is made amounting to a deprivation of liberty within the meaning of Article 5, but in circumstances where the pre-conditions explained above have not been met, the courts may quash that order."

"It should therefore be clear from the restrictions imposed by a control order whether it was intended to be a derogating control order and subject to the specific regime and safeguards set out in the Act. However, it should be emphasised that the courts will make the final decision on this issue. Even if the Secretary of State purported to make a non-derogating control order, a court would nevertheless be free to consider for itself whether, notwithstanding the view of the Secretary of State, the restrictions in that order in fact constituted a deprivation of liberty. If the court were to decide that the order did constitute a deprivation of liberty, the court would have powers to quash the control order."

"If the Court should find against the Secretary of State on the question of 'deprivation of liberty', the Respondents seek an order quashing the control order under section 3(12) [of the Act]. It is respectfully submitted that it would be inappropriate for the Court to adopt that approach. The Secretary of State would respectfully submit that the appropriate order this Court should make (if it were to find against the Secretary of State on the substance of the Article 5(1) argument) would be an order to give directions to the Secretary of State for the modification of the obligations imposed by the control order (section 3(12)(c))."

"On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed-- (a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and (b) his decisions on the imposition of each of the obligations imposed by the order."

"(12) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are-- (a) power to quash the order; (b) power to quash one or more obligations imposed by the order; and (c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. (13) In every other case the court must decide that the control order is to continue in force."

"8(1) Where-- (a) a control order, (b) the renewal of such an order, or (c) an obligation imposed by such an order, is quashed, the order, renewal or (as the case may be) obligation shall be treated for the purposes of section 9(1) and (2) as never having been made or imposed. (2) A decision by the court or on appeal from the court-- (a) to quash a control order, the renewal of a control order or an obligation imposed by such an order, or (b) to give directions to the Secretary of State in relation to such an order, does not prevent the Secretary of State from exercising any power of his to make a new control order to the same or similar effect or from relying, in whole or in part, on the same matters for the purpose of making that new order."