UK Liberty

Another control order quashed

Posted in control orders by ukliberty on April 13, 2007

I didn’t see anything on this in the press.

Secretary of State for the Home Department v AF:

What is brought out very clearly from JJ and Others and from E is the need to look at the cumulative effect of the restrictions. [my emphasis – ukliberty] The duration of the curfew, supported by permanent tagging and twice daily reporting to the monitoring company, needs to be considered with the restrictions which are placed on the individual when he is at home during the curfew hours.

I regard the most significant additional restriction upon the individual when at home as being the restriction on receiving guests without prior approval by the SSHD; this involves for them a quite intrusive process which can readily be understood as inhibiting their willingness to visit. Indeed that would be part of the object of the obligation.

The restriction on the right to use certain common modern forms of communication is to my mind less important by itself as a restriction on liberty. But the means whereby those obligations are enforced includes the right of the police and others to undertake random searches, which can also enforce the prohibition on unauthorised visitors and the curfew itself.

That right and its use are a further significant restriction on liberty. This combination of restrictions in the home goes beyond those which the ECtHR has considered in curfew cases. …

Taken by themselves, any one of the restrictions which flow from the way in which the area has been delineated would not amount to a deprivation of liberty. He is not prevented from re-arranging many parts of his life within his area. But together they cut him off to a large extent from his previous life. I attribute particular significance to the cumulative restrictions on mosques and educational establishments or employment opportunities in judging whether there is a deprivation of his liberty. And they have to be seen as additional to those which bite during curfew hours.

Taking all these matters into consideration, I have come to the conclusion that, although as with E the decision is quite finely balanced, this is a case in which the restrictions cumulatively amount to a deprivation of liberty. They are markedly less severe than those in JJ and Others but broadly they are of comparable severity to those in E, overall.

Beatson J regarded the requirement for prior approval for all visitors to the home and for prior approval for any pre-arranged meetings, and the requirement for approval to attend any meetings as very real restrictions which, as I read it, tipped the balance towards there being a deprivation of liberty.

Those serious features are not present here in that way: outside, curfew hours AF can have visitors to his flat and he can meet them outside both without prior approval. But instead AF has a longer curfew, and a geographical area which has specific effects in relation to attendance at his preferred mosque and the pursuit of education in English, as well as other specific and more general impacts on what AF used to do.

There was no issue over the mosque in E and E had a larger family group, including his children, with whom he had unrestricted contact. One cannot ignore the probability that at least some of the restrictions would be renewed for a number of years on the basis of the material used to justify this Order, although there is not the history there was in E of previous detention. (There is no prospect of deportation in the absence of deprivation of citizenship or, in my judgment, of prosecution for a terrorist-related offence).

For those reasons I have come to the conclusion that this Control Order is a nullity. It cannot be saved by variations to the restrictions, selected by the Court.

There is some context/background to the effects of AF’s obligations under the Order that may be of interest to you.

There is also some comment on the effects of hearing evidence (in closed session) that may not be disclosed to the subject of a Control Order.

E was briefly discussed in an older article.

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