What Constitutes a Deprivation of Liberty?

Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010)

A recent decision of the UK Supreme Court has confirmed that certain control order restrictions may constitute a deprivation of liberty sufficient to engage the operation of art 5 of the European Convention on Human Rights.

Facts

The appellant, AP, is an Ethiopian national residing in the UK.  AP was suspected of involvement in terrorism.  On 10 January 2008, the Secretary of State obtained a control order against AP which was subsequently modified on 21 April 2008.  The modified control order subjected AP to a 16 hour curfew and required him to live at an address in the Midlands, some 150 miles from his family in London.

AP appealed against the imposition of the control order and, on 12 August 2008, Keith J quashed the obligation to live in the Midlands.  Keith J considered that the interference with art 8 of the ECHR (the right to respect for private and family life) was justified and proportionate in the interests of national security.  However, his Honour considered that the terms of the control order constituted an art 5 deprivation of liberty.

In making his finding, Keith J considered that the obligation to live in the Midlands away from family and friends had the effect of subjecting AP to an ‘internal exile’ which, when coupled with the 16 hour curfew, took the control order outside the realm of a mere restriction on movement and instead amounted to a deprivation of liberty.  Keith J found that it was extremely difficult for AP’s family to visit him in the Midlands, that he could not integrate socially and spiritually at the local mosque, and that he suffered general social isolation in the town.  Importantly, Keith J found that, but for the obligation to live in the Midlands, the control order would not have breached art 5.

A majority of the Court of Appeal overturned Keith J’s decision on 15 July 2009.  AP appealed this decision to the Supreme Court.  The appeal raised the following matters:

• whether conditions which were justifiable restrictions under art 8 could ‘tip the balance’ in relation to art 5, in that there would be no breach of art 5 but for those conditions;
• whether the judge can take into account subjective ‘person specific’ factors (such as the particular difficulties of AP’s family visiting him in the Midlands) when considering whether a control order amounts to a deprivation of liberty; and
• whether Keith J had made inconsistent findings of fact in respect of the art 5 and art 8 claims (as was held by the Court of Appeal).

Decision

The Supreme Court unanimously found in favour of the appellant on all three grounds.

In relation to the first ground of appeal, the Supreme Court noted that it was established law that a restriction relevant to an art 8 claim might be relevant to an art 5 claim even if the restriction does not establish a breach of art 8.  Consequently, it was held that if an art 8 restriction is a relevant consideration to an art 5 claim, ‘by definition it is capable of being a decisive factor’ in an art 5 claim.

As to the second ground of appeal, the Supreme Court found that the Secretary of State’s argument that a decision-maker should only look to objective factors in assessing the effect of a control order was entirely without basis.  The Court held that it was necessary to look to both objective and subjective factors in determining the effect that the control order has on the individual’s liberty.  To the extent that subjective factors unreasonably contribute to the individual’s isolation (such as the unreasonable behaviour of an individual or that of his or her family), then the correct analysis is that those factors are to be regarded as causing the relevant restriction on liberty, and not the restrictions of the control order.  However, this was not the case for AP.

As to the third and final ground of appeal, the Supreme Court found that Keith J had not made the inconsistent findings of fact declared by the Court of Appeal.  Accordingly, the Supreme Court set aside the decision of the Court of Appeal and restored the decision at first instance.

Relevance to the Victorian Charter

This case affirms the principle outlined by the majority of the House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC 385 that an art 5 deprivation of liberty may take ‘a variety of forms other than classic detention in prison and strict arrest’.  Thus, in appropriate circumstances, a control order will be regarded not merely as a restriction on liberty, but rather a deprivation of liberty sufficient to engage art 5.  The approach to deciding this issue in the UK is to consider the length of the curfew and the degree of social isolation occasioned by the control order restrictions.

The case may provide assistance when interpreting the scope of the right to liberty and security of person contained within s 21 of the Victorian Charter.  In particular, the decision may assist in determining whether action taken on the part of the State in respect of an individual constitutes a deprivation of liberty under s 21(3).

The decision is at www.bailii.org/uk/cases/UKSC/2010/24.html.

Jesse Rudd, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group