The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: AP’s appeal was allowed. It was wrong to blame the family for failing to make very difficult arrangements to maintain contact. It was important in such decisions to consider the ‘concrete situation of the particular individual’ taking account of ‘a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’. The objective element of a person’s confinement may not be enough to give rise to a deprivation of liberty within the meaning of article 5.1. The other elements, when considered in conjunction with the confinement, may make all the difference.
The Secretary of State must always seek to find out what the likely effect will be of the control order (or the modification) that she is proposing to make. She cannot make or modify control orders without considering their effect. It is now clearly established that in a case where the confinement is not sufficiently long of itself to amount to a deprivation of liberty, an assessment of the effect of the measures on the controlee may be decisive.
Lord Phillips, President, Lord Saville, Lord Rodger, Lord Walker, Lord Brown, Lord Clarke, Sir John Dyson SCJ
[2010] UKSC 24, [2010] WLR (D) 149, UKSC 2009/0225, [2010] UKHRR 748, [2010] 3 WLR 51
Bailii, Bailii Summary, WLRD, SC Summary, SC
Prevention of Terrorism Act 2005, European Convention on Human Rights 8
England and Wales
Citing:
At First Instance – Secretary of State for the Home Department v AP Admn 12-Aug-2008
The court reviewed the need for the control order made against AP. . .
Appeal from – AP v Secretary Of State for the Home Department CA 15-Jul-2009
. .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – Secretary of State for the Home Department v JJ and others HL 31-Oct-2007
The Home Secretary appealed against a finding that a non-derogating control order was unlawful in that, in restricting the subject to an 18 hour curfew and otherwise severely limiting his social contacts, the order amounted to such a deprivation of . .
Cited – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – Shtukaturov v Russia ECHR 27-Mar-2008
The applicant had been placed in a locked facility, tied to his bed, given sedative medication and not permitted to communicate with the outside world. He had given no consent, which might have prevented those measures from being a deprivation of . .
Cited – Secretary of State for the Home Department v AU Admn 20-Jan-2009
The court upheld a 16-hour curfew imposed under a control order made under the 2005 Act. . .
Cited – Secretary of State for the Home Department v GG Admn 12-Feb-2009
A control order under the 2005 Act could not include a right for officers to conduct a personal search. However a 16-hour per day curfew together with a relocation from Derby to Chesterfield and which presented no difficulties for family visits was . .
Cited – HM v Switzerland ECHR 26-Feb-2002
. .
Cited by:
See Also – Secretary of State for The Home Department v AP (No. 2) SC 23-Jun-2010
The claimant had object to a Control order made against him and against a decision that he be deported. He had been protected by an anonymity order, but the Court now considered whether it should be continued.
Held: AP had already by the . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Human Rights
Updated: 02 November 2021; Ref: scu.416759