Evans v Kosmar Villa Holidays plc

[2008] 1 All ER 530

[2007] EWCA Civ 1003

Categories:        CONTRACT        

Court:        COURT OF APPEAL, CIVIL DIVISION        

Lord(s):        ARDEN, HOOPER AND RICHARDS LJJ        

Hearing Date(s):        26 JULY, 23 OCTOBER 2007        

Contract – Implied term – Duty of care – Nature of duty – Reasonable care – Holiday contract – Claimant entering into holiday contract with tour operator – Claimant diving into shallow end of swimming pool at holiday complex and sustaining injury – Implied terms of holiday contract – Whether tour operator having duty to protect against obvious risk.

The claimant, then aged just under 18 years old, went on a holiday booked with the defendant tour operator. The apartment complex where he was staying had a small swimming pool. Towards the end of his stay, in the early hours of morning, the claimant dived into the shallow end of the pool and hit his head on the bottom of the pool, sustaining serious injuries which resulted in incomplete tetraplegia. He commenced proceedings against the defendant, claiming damages for personal injury. The basis of his claim included an implied term in the contract between himself and the defendant that reasonable skill and care would be exercised in the provision of facilities and services at the apartment complex, and in particular at the swimming pool and its surrounds. It was common ground that the dimensions of the swimming pool made it unsuitable for diving; the claimant’s case was that the positioning and size of the ‘no diving’ signs were inadequate and that signage relating to closure of the pool at night should have been explicit and enforced. He accepted that he knew that knowingly diving into the shallow end of a swimming pool could be very dangerous, but said that he had not known that it was the shallow end that he was diving into, and that he had seen other people diving in at that end. The defendant contended that there was no duty to guard against an obvious risk that diving into shallow water or into water of an unknown depth could cause injury. The judge distinguished the case from decided cases in tort under the Occupiers’ Liability Acts and found the defendant liable to the claimant for breach of contract with a finding of 50% contributory negligence. The defendant appealed. The Court of Appeal considered whether the judge had been right to distinguish the line of cases under the Occupiers’ Liability Acts and to treat them as having no relevance to the contractual context of the claimant’s case.

Held – The reasoning that people should accept responsibility for the risks they chose to run and that there should be no duty to protect them against obvious risks (unless there was no genuine and informed choice or some lack of capacity) which had been held to apply not only to trespassers and but also to lawful visitors to whom there was owed the common duty of care under the Occupiers’ Liability Act 1957, applied also to persons to whom there was owed a duty of care in similar terms under a contract such as that in the instant case. Accordingly, in the instant case, the defendant’s duty of care had not extended to a duty to guard the claimant against the risk of his diving into the pool and injuring himself; that was an obvious risk of which he had been well aware and although the claimant

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had been just under 18 years of age he had been of full capacity and able to make a genuine and informed decision. It followed that the defendant had been under no duty to give the claimant any warning about the risk of diving into the pool. The appeal would therefore be allowed (see [39]–[41], [43], [44], [51]–[53], below)

Tomlinson v Congleton BC [2003] 3 All ER 1122 applied.

Notes

For the common duty of care to visitors and an occupier’s duty of care to persons other than visitors, see 33 Halsbury’s Laws (4th edn reissue) paras 631–634, 640.

Cases referred to in judgments

Codd v Thomson Tour Operators Ltd [2000] CA Transcript 1470/2000.

Dean v Thomson Tour Operators Ltd (16 June 2000, unreported).

Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947, [2001] All ER (D) 102 (Jun).

Ratcliff v McConnell [1999] 1 WLR 670, CA.

Tomlinson v Congleton BC [2003] UKHL 47, [2003] 3 All ER 1122, [2004] 1 AC 46, [2003] 3 WLR 705; rvsg [2002] EWCA Civ 309, [2003] 3 All ER 1122, [2004] 1 AC 46, [2003] 2 WLR 1120.

Wilson v Best Travel Ltd [1993] 1 All ER 353.

Appeal

The defendant, Kosmar Villa Holidays plc (Kosmar), appealed from the decision of Judge Thorn QC, sitting as a High Court judge ([2006] EWHC 3417 (QB)), finding Kosmar liable in contract for personal injuries to the claimant, James Evans. The facts are set out in the judgment of Richards LJ.

Graham Eklund QC (instructed by Kennedys) for Kosmar.

Alan Saggerson (instructed by Hugh James, Cardiff) for the claimant.

Judgment was reserved.

23 October 2007. The following judgments were delivered.

RICHARDS LJ (giving the first judgment at the invitation of Arden LJ).

[1] In August 2002, three weeks short of his 18th birthday, James Evans was on holiday with a group of friends at the Marina Beach Apartments in Kavos, Corfu. The holiday had been booked with a tour operator, Kosmar Villa Holidays plc (Kosmar). The apartment complex was under independent Greek ownership and management but was contracted exclusively to Kosmar and was featured in Kosmar’s brochure. It included a small swimming pool. Towards the end of his stay, in the early hours of the morning, Mr Evans dived into the shallow end of the pool and hit his head on the bottom, sustaining serious injuries which resulted in incomplete tetraplegia. He brought a claim for personal injuries against Kosmar. Judge Thorn QC, sitting as a judge of the High Court, found Kosmar liable for the accident, subject to a finding of 50% contributory negligence ([2006] EWHC 3417 (QB)). Kosmar now appeals against that decision.

[2] It is clear that the claimant is a remarkable young man. The judge not only found him and his friends to be completely frank witnesses, unreservedly accepting their evidence as against any conflicting evidence for Kosmar, but also commented on how impressive the claimant had been at making the best of his

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disabilities after the accident and congratulated him on the triumphs he had achieved over his undoubted personal disaster. The warmth of the judge’s remarks is a fine tribute to the claimant. As the judge himself made clear, however, that cannot affect the court’s decision in the case, which must depend on the application of the relevant legal principles to the facts as found.

[3] By contrast, the judge found that Kosmar’s lay witnesses had ‘variously committed themselves to an early and false joint account to save their backs’ and on several issues was driven to the conclusion that ‘not only have they lied, but that they also put their heads together, probably at several stages, and conspired together to deceive’ (at [15]). Such conduct is a deeply troubling feature of the case and reflects very badly not only on the witnesses themselves but also on Kosmar. It will no doubt have added to the sympathy that the judge rightly felt for the claimant. Again, however, none of this can affect the legal analysis.

THE FACTS

[4] The judge described Kavos as the sort of resort that was typically aimed at young single people holidaying without adult supervision, not infrequently in groups of already formed friends, and with ample opportunities to drink substantial quantities of alcohol for very substantial periods, or indeed all of the day and night, and generally for the traditional night to be turned into day. He said that the operation at the Marina Beach Apartments was particularly well set up to provide for the young and lively and to fit in with the commercial opportunities at the resort. It was generally free from any real rules, and relaxed to the point of permitting most things that kept the youngsters happy.

[5] The complex itself was next to the beach and consisted of a number of studios and apartments, a bar and the pool. A path ran from the accommodation block past the pool to the bar. The path was separated by a flowerbed from the paved area around the pool itself. The judge found that the bar might sometimes have closed by midnight, but more frequently it stayed open as long as there were guests wanting to drink. When the bar closed, the lights in the swimming pool and bar area were turned off, but the lights on the path remained lit. The judge rejected a defence contention that the pool was then closed. He found that its use by guests was continued and authorised.

[6] The pool was 11·2 m long and 5·8 m wide. At the deeper end, furthest away from the accommodation block, the maximum depth of the water was almost certainly no more than 1·5 m, though there was a ledge under the water on which people could stand. At the shallow end, the depth of the water was probably only about 0·8 m. There was a small depth marker at each end of the pool, though they were probably not visible at night.

[7] The experts agreed that the pool’s dimensions made it unsuitable for diving. There were two small ‘no diving’ signs in the general area of the pool at the material time. One was on the wall of the toilet block, on the other side of the path running between the accommodation block and the bar, though the judge found that there was shrubbery hanging partly over and adjacent to the sign. The other sign was on a tree on the far side of the pool, close to the bar area. Both signs were among a collection of other notices. Despite the existence of those signs, diving was in practice a regular occurrence. Indeed, the judge found that ‘the defendant knew full well that not only was the pool regularly used when the bar was shut, but also that diving did take place, probably on a regular basis, and without any reproof or reprimand’ (see [19](4)(e)).

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[8] The judge accepted that the claimant had probably used the pool only once before the accident, on the Tuesday morning of his stay. In his witness statement, from which the judge quoted extensively, the claimant said that on that occasion he jumped into the deep end to cool off and stood on the ledge, leaning over the edge and talking to friends. He did not go into the shallow end. A little later he referred to his having seen people diving in from all sides and at all ends. He never thought that people would dive in like that to a shallow pool, and consequently he assumed that the pool was reasonably deep all around. He was not aware of there being a significant change in depth between the end he was using and the opposite end. He did not recall seeing any signs pointing out the depth of the pool or stating that there was to be no diving.

[9] On the Wednesday evening the claimant went out with his friends for a meal and stayed out late. When he returned with one of his room-mates, they stayed in their apartment talking until about 3.30 am. They had also woken up their other room-mate. It was very hot and they had the windows open. There was a lot of noise from the pool. They could not sleep, so they thought ‘if you can’t beat them, join them’ and went out to the pool. The claimant’s witness statement continued:

‘18 . . . There were many other people using our pool and also the pool in the next door hotel. We couldn’t see anyone else we knew there. The bar was shut and the light was poor as we were relying on light from next door and from the apartments. People were diving in all over the place so I had no reason to think there would be a problem if I did the same. I had not seen any depth markings when it was light so none were apparent in the darkness. At the same time I also could not assess the depth of the pool before I entered but no one else was having a problem so I assumed all would be fine if I dived in.’

[10] The claimant went on to explain that he had learned to swim at about the age of eight and had used pools in Turkey and Spain on family holidays as well as in the United Kingdom. He knew that you should not dive into water if you do not know how deep it is. However, he had assumed that this pool was safe. Because he was unaware of the depth of the pool and because he thought that it was perfectly safe to dive in, having seen other people doing it, he walked up and dived in. His was, as he recalled, ‘a very ordinary racing type of dive out into the water’. The dive was in fact into the shallow end, close to the point where there are ladder-type steps into the pool. He hit his head on the bottom and, it seems, was fortunate to be rescued before he drowned.

[11] In cross-examination by Mr Eklund QC, the claimant made a number of further important concessions. The judge summarised the effect of the cross-examination as follows:

‘[29] . . . Jamie was clearly a reasonably experienced swimmer, as his witness statement indicated. He had known that pools were bound to vary in size, in shape, and in depth, and that the shape of the bottom of pools could, and did, vary. He agreed that he knew that most pools have a deep and a shallower end, albeit he commented they are usually marked with such in his experience. He admitted that he knew that knowingly diving into a shallow end could be a very dangerous thing to do, and it could be a

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dangerous thing to dive in if he did not know the depth of the swimming pool. He admitted that he knew that it was dangerous to dive in if he could not see the bottom of the pool, but he added “I saw others diving in”. He admitted that he could have looked for depth markers, but commented that he did not recall seeing any of them; nor had he recalled seeing people swimming in this pool during the holiday, although he supposed he must have done. He had no recollection of people standing in the shallow end and thereby indicating it since probably half of their body would then be out of water.

[30] In cross-examination, the claimant added, “I simply did not know it was the shallow end. I only had got wet in the deep end previously to cool off. I assumed there was no change of depth from there for the length of the pool” . . .

[31] The cross-examination, which was extensive, and running for just short of two hours, continued with the claimant making a number of concessions along the lines that I have already indicated. They included the fact that he did not think he needed supervising, nor to be told not to dive in if he did not know the depth. He even agreed now, in hindsight, that what he had done was a dangerous thing to do, but, again, he added that he was only doing what he saw other people were doing in diving in.’

[12] In his submissions to us, Mr Eklund referred to specific passages in the evidence to bring home the points summarised by the judge. In my view, however, a sufficient flavour is given in the passages from the judgment that I have quoted above.

[13] After dealing with the evidence of the other witnesses called on behalf of the claimant, the judge returned to the claimant’s knowledge of the pool. He found that at the time of his accident the claimant did not know ‘in any meaningful sense’ that the end into which he was to dive was shallower than the end in which he had stood on the Tuesday. He could have done, but he did not. On seeing others diving in, he simply joined them. In the exuberance of youth, and in the spirit of the moment, he simply dived in to join them at the nearest point as he was seeing others do, and had seen others do previously.

[14] That leads on to the judge’s specific findings about the accident itself. He found first (at [41]) that the claimant—

‘should, and could, have known if he had really thought about it that the closest poolside into which he was to dive was the shallow end, and that his assumption that the pool was of the same depth at both ends might at least be inaccurate.’

He then said that this could not be the end of his attempt to understand what happened and why the claimant dived in here having such knowledge that he previously had. The judge said that after careful consideration he made the following ten further findings of fact on the balance of probabilities (at [42]):

‘(1) The claimant was foreseeably tired. He had been living a fairly typical unstructured lifestyle compared with what he had been used to in the United Kingdom, which could only have been expected, and it was inevitable, and even offered as the nature of their holiday operation and the provision of a very late night bar and a swimming pool for which there was always open access.

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(2) The claimant had had some alcoholic drink. It was almost certainly less than the defence might have expected of some of their young guests, especially amongst such a teenaged group as was this one.

(3) He was in a holiday resort and location given to 24-hour hospitality with a purpose-built swimming pool facility that was available for use at all hours.

(4) The claimant not unreasonably thought, as I find, that the pool was available; it was in actual use; and that others were, and had previously been, diving in “all around”.

(5) In so far as the defendant had rules or advice to prevent either, they were inadequate by any objective standard, and for the claimant there was nothing adequate to prevent what I find was then to happen in this accident.

(6) Objectively, he knew that diving in here was unwise and potentially dangerous. In the ordinary event, he would never have done so, and he did not ordinarily need to be told that.

(7) That in the foreseeable exuberance of the youthful use of this pool, especially in the very late heat of the night, he copied what he had seen others doing on this occasion and others, both in deciding to go swimming this night when the bar was shut, and others were “diving in from all sides”. In those circumstances he forgot his own good sense, but against which possibility properly and prominently displayed warning signs were surely designed to prevent, especially given the nature of this sort of holiday facility. I find that, on the balance of probability, such better placed and more prominent signs which were recommended would indeed have brought him to his better sense before he dived in.

(8) In the foreseeable spirit of the moment, lacking more mature years and experience, and lacking such precautions as the defendant could, and should, have taken in reasonable foresight of such an accident, with such potentially disastrous consequences, the claimant walked out of the accommodation block and simply dived in to join his mates and others, including a quite separate group from Liverpool in the pool.

(9) What previous knowledge of the dangers the claimant had had, that deserted him on this occasion. With nothing in particular by way of adequate safeguards and warnings, not even as the defence alleged, to help bring him to his senses at this late hour, any prior and useful knowledge left him. He dived in at the nearest point to him. It happened to be the shallower end. He was thoughtless at the time—foreseeably so, as I find, in the circumstances and nature of this holiday venue run by the defendant. I think they both share some blame here, but that might be another matter as to whether it amounts to legal culpability by the defendant in this litigation, and, if so, how any liability might be apportioned.

(10) Finally, the claimant knew beforehand that he should not have done as he did. He well knows now that he should not have done as he did. But, I find that the only explicable reason for what happened—as, indeed, the claimant told me—was that actually at this particular time he was completely unaware and oblivious to the dangers he was courting. There was nothing then present that might adequately have deterred him from his brief state of inadvertence which the safety standards were designed to prevent, and thus briefly bring him to his senses on this occasion before he

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dived in. But for the simple and inexpensive precautions that have been canvassed here, this foreseeable accident could, and, on the balance of probabilities, would have been prevented in this case.’

OTHER RELEVANT MATTERS

[15] I have already mentioned that the experts agreed that the pool was not safe for diving. The judge said that the significant disagreement between them was as to whether the ‘no diving’ signs and the signage generally were adequate. The claimant’s expert, Mr Boydell, criticised the positioning and size of the ‘no diving’ signs and also said that the signage relating to closure should have been explicit and enforced. The defence expert, Mr Fowler, was less critical of the signage although he made a number of concessions helpful to the claimant’s case. It is clear from the general tenor of his judgment that the judge preferred the evidence of Mr Boydell. In para [42] of his judgment, quoted above, he referred repeatedly to the absence of adequate safeguards and warnings. At [52] he found in relation to each of the ‘no diving’ signs that the ‘the sign was visible, the message was not’. He also found that the signage failed to comply with the guidance issued by the Federation of Tour Operators (FTO), which calls for fuller consideration.

[16] The FTO’s Health and Safety Handbook contains a section headed ‘Suggestions for Swimming Pool Safety’, which also appears to be available as a separate leaflet to be given to hoteliers and others. The judge referred in particular to the following paragraphs:

‘4. Depth markings should be placed at regular intervals. Minimum 2m apart on small pools, 3m apart on large pools . . .

5. Gradual changes in depths should be indicated at these regular intervals as indicated.

6. Sudden changes in depths should be clearly marked . . .

8. No Diving signs should be displayed in a prominent position, especially in areas with depths of less than 1·5m.

9. Opening hours and emergency procedures should be clearly visible.’

The judge observed that in this case there was no depth-marker signage complying with paras 4, 5 or 6; that ‘no diving’ signs were particularly required here but were not displayed in a prominent position in accordance with para 8; and that opening hours and emergency procedures were not clearly visible in accordance with para 9. The handbook also contained an illustration of the layout of the sort of signage referred to, as to which the judge said that ‘[t]he signage here did not begin to compare with what the FTO have suggested’.

[17] The judge did not deal with the status of the FTO guidance, but the issue featured in argument before us and it will be helpful to consider it here. We were informed that only about 30% of tour operators are members of the FTO. The foreword to the handbook states that the handbook ‘has been produced to help anyone who wishes to improve health and safety standards for holiday makers’, and that it is a tribute to the FTO’s health and safety officers and others ‘that significant improvements to safety standards have been achieved especially when, as they often do, these improvements are over and above the local regulations’. The foreword is followed by an ‘important notice’ stating that—

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‘[t]he information and advice contained in this Handbook is designed to assist tour operators and their suppliers to develop their own safety systems. It should, however, be regarded as a starting point, and not as a definitive statement of the law or technical safety standards.’

[18] There was evidence that the FTO guidance formed part of the documents used internally within Kosmar for the training of its representatives. There was, however, no evidence that it was regarded as laying down internationally recognised or uniform standards. Mr Fowler accepted in cross-examination that Mediterranean hotels conventionally have signs designating which end of the pool is the shallow end and which is the deep end, and also conventionally ‘comply with uniform standards about prominent diving prohibition signs’, but did not cover the nature or detailed content of any such standards.

BREACH OF DUTY

[19] The claimant’s case was based on the holiday contract between the claimant and Kosmar, with additional reliance on reg 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992, SI 1992/3288.

[20] The amended particulars of claim pleaded implied terms of the contract that (i) the facilities at the apartments and in particular the swimming pool and its surrounds would comply with local regulations and safety standards applicable in Corfu in 2002, (ii) reasonable skill and care would be exercised in the provision of the facilities and services at the apartments and in particular at the swimming pool and its surrounds, and (iii) the facilities at the apartments would be of a reasonable standard by complying with recommended minimum standards laid down by the FTO. Breaches of each of those implied terms were pleaded.

[21] The amended particulars of claim also pleaded that there had been ‘improper performance’ of the holiday contract within the meaning of reg 15 of the 1992 regulations. Regulation 15 covers the situation where services to which the contract relates are supplied by someone other than the contracting party. It therefore applied to the operation of the apartment complex in this case. Paragraph (1) provides that:

‘The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services . . .’

Paragraph (2) provides that ‘[t]he other party to the contract is liable to the consumer for any damage caused to him by . . . the improper performance of the contract’. But the question whether there has been ‘improper performance’ is to be determined by reference to the terms of the contract, which in this case takes one back to the implied terms as pleaded: Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947 at [15], [2001] All ER (D) 102 (Jun) at [15].

[22] The first of the implied terms pleaded by the claimant may owe its formulation to Wilson v Best Travel Ltd [1993] 1 All ER 353. In that case the plaintiff, while staying in a hotel in Greece on a holiday booked through the defendant tour operator, sustained serious injuries on tripping and falling through glass patio doors at the hotel. The plaintiff’s claim, which pre-dated the 1992 regulations, was based on an implied warranty that the structure of the

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hotel would be reasonably safe, alternatively a duty of care arising out of the term implied by s 13 of the Supply of Goods and Services Act 1982. The judge, Phillips J (as he then was), found against a warranty but accepted the existence of a duty of care. He held that the service provided by the defendant included the inspection of properties offered in its brochure and that the defendant owed a duty to exercise reasonable care to exclude from the accommodation offered any hotel whose characteristics were such that guests could not spend a holiday there in reasonable safety (see 356). The evidence was that it was the practice in England, but not yet in Greece, to fit safety glass to doors. In those circumstances the judge held that there was no breach of the defendant’s duty, stating (at 358):

‘What is the duty of a tour operator in a situation such as this? Must he refrain from sending holidaymakers to any hotel whose characteristics, in so far as safety is concerned, fail to satisfy the standards which apply in this country? I do not believe that his obligations in respect of the safety of his clients can extend this far. Save where uniform international regulations apply, there are bound to be differences in the safety standards applied in respect of the many hazards of modern life between one country and another. All civilised countries attempt to cater for these hazards by imposing mandatory regulations. The duty of care of a tour operator is likely to extend to checking that local safety regulations are complied with. Provided that they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question.’

[23] A claim such as that in Wilson’s case would no doubt be put differently under the 1992 regulations: since the tour operator is directly liable under those regulations for improper performance of the contract by the hotel even if the hotel is under independent ownership and management, the focus can be on the exercise of reasonable care in the operation of the hotel itself rather than in the selection of the hotel and the offer of accommodation at it. But I do not think that this affects the principle laid down as to the standard to be applied to a hotel abroad, namely that the hotel is required to comply with local safety regulations rather than with British safety standards. That was the approach in Codd v Thomson Tour Operators Ltd [2000] CA Transcript 1470/2000, in which the claimant had been injured while travelling in a lift at a hotel in which he was staying in Majorca. The tour operator accepted that it would be liable (presumably under the 1992 regulations) if negligence was established against those who were responsible for running and managing the hotel, but the judge found that liability was not established. The Court of Appeal dismissed the claimant’s appeal, citing Wilson’s case for the proposition that there was no requirement for the hotel to comply with British safety standards, and holding that there was no breach of local safety regulations and that there was no negligence by the hotel management either in relation to the maintenance of the lift or in relation to safety procedures.

[24] In the present case, there was no evidence to support the pleaded claim of non-compliance with local safety regulations, and that way of putting the case was not pursued at trial. In my view, however, it was still open to the

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claimant to pursue the claim on the other bases pleaded in the amended particulars of claim. What was said in Wilson’s case did not purport to be an exhaustive statement of the duty of care, and it does not seem to me that compliance with local safety regulations is necessarily sufficient to fulfil that duty. That was evidently also the view taken in Codd’s case, where the court found there to be compliance with local safety regulations but nevertheless went on to consider other possible breaches of the duty of care.

[25] I can deal briefly with the pleaded failure to comply with minimum standards laid down by the FTO. I have already described the FTO’s Health and Safety Handbook and the ‘Suggestions for Swimming Pool Safety’ contained within it. In my view the handbook is referred to correctly as guidance. It is advisory in character and has no legal force. It does not lay down standards with which Kosmar is required to comply. As I understood Mr Saggerson’s submissions to us, he did not contend otherwise but relied on the handbook simply as ‘informing’ the standard of care and as casting light on whether Kosmar had exercised reasonable care in this case.

[26] The case therefore comes down to the most general of the implied terms pleaded, that reasonable skill and care would be exercised in the provision of facilities and services at the apartment complex and in particular at the swimming pool and its surrounds. It is common ground that such a term is to be implied. The dispute relates to the scope of the duty of care and whether there was in the particular circumstances a breach of that duty.

[27] If there was a duty to exercise reasonable care to guard against what the claimant did in this case, then in my view the judge was entitled to find a breach of duty. It was open to him to accept the evidence of the claimant’s expert, Mr Boydell, as to the deficiencies of the signage, and to find non-compliance with the FTO guidance; and his conclusion that there was a failure to exercise reasonable care, in particular as to the prominence of the ‘no diving’ signage around the pool, is not one with which there is any reason to interfere.

[28] But did the duty of care extend that far? The essence of Kosmar’s case is that there is no duty to guard against an obvious risk of the kind that existed here, namely that diving into shallow water (or into water of unknown depth) may cause injury. That risk was obvious to an ordinary able-bodied adult such as the claimant. The evidence shows that he knew of the risk and was able to assess it for himself. He took a deliberate decision to dive in. Kosmar was under no duty to warn him against such a course or to take other measures to prevent it. The fact that he dived in, as the judge found, in a brief state of inadvertence does not affect the position: that could be said of almost all accidents, and again there is no duty to guard against it. Nor is the position affected by the fact that a lot of people were taking the same obvious risk by diving in.

[29] The most important of the cases relied on by Mr Eklund is Tomlinson v Congleton BC [2003] UKHL 47, [2003] 3 All ER 1122, [2004] 1 AC 46. That case concerned a lake in a country park owned and occupied by the first defendant and managed by the second defendant. Swimming in the lake was prohibited and the defendants displayed prominent warning notices. The first defendant, aware that the notices were frequently ignored and that several accidents had resulted from swimming in the lake, intended planting vegetation around the shore to prevent people from going into the water but had not yet done so because of a shortage of financial resources. The claimant,

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aged 18, went into the lake and from a standing position in shallow water dived and struck his head on the sandy bottom, breaking his neck. He claimed damages, alleging that the accident had been caused by the defendants’ breach of the duty of care they owed to him as a trespasser under s 1 of the Occupiers’ Liability Act 1984, by which a duty is owed in respect of risks of injury by reason of any danger due to the state of the premises. His claim failed at first instance, succeeded by a majority in the Court of Appeal (Ward and Sedley LJJ, Longmore LJ dissenting) ([2002] EWCA Civ 309, [2003] 3 All ER 1122, [2004] 1 AC 46), but failed once more on a further appeal to the House of Lords.

[30] In his dissenting judgment in the Court of Appeal, Longmore LJ observed (at [47]):

‘One of the dangers of going for a swim in any stretch of water other than a dedicated swimming pool is that the swimmer may slip and injure himself. He may also quickly find himself out of his depth and be unable to cope; he may get cramp or be assailed by the coldness of the water and be unable to recover. All these are obvious dangers to anyone except a small and unaccompanied child. Another danger is that a swimmer may decide to dive into the water and hit his head on the bottom, if the water is too shallow; in my judgment that is an equally obvious danger and cannot provide a reason for saying that the owner or occupier of the water should be under any duty to take reasonable steps to prevent people swimming or diving in the relevant stretch of water.’

Mr Eklund submitted that that reasoning applies equally to an adult diving into a swimming pool, as occurred in this case. He also relied on para [51] of Longmore LJ’s judgment, in which it was said that a duty could arise only if there was a particular hazard (over and above the ordinary risks of swimming) in the stretch of water concerned. Mr Eklund stressed that in this case the pool was in proper condition and contained no particular hazard.

[31] The leading speech in the House of Lords was given by Lord Hoffmann, with whom Lord Nicholls of Birkenhead and Lord Scott of Foscote agreed. Lord Hoffmann held that the only risk arose out of what the claimant chose to do and not out of the state of the premises, so that there was no risk of a kind which gave rise to a duty under the 1984 Act. But even on the assumption that there was such a risk, he held that there can have been no duty under the Act. An integral part of the reasoning that led to that conclusion was his consideration of what the position would have been if the claimant had been a lawful visitor owed the common duty of care under s 2(2) of the Occupiers’ Liability Act 1957, namely—

‘a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.’

Lord Hoffmann identified two important considerations. The first was the social value of the activities which would have to be prohibited in order to reduce or eliminate the risk from swimming, namely use of the beaches to sunbathe, paddle and play with children. The second consideration, examined

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under the heading ‘free will’, was whether people should accept responsibility for the risks they choose to run. Lord Hoffmann said this:

‘[44] . . . Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk . . .

[45] I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds or lakes, that is their affair . . .

[46] My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ ([2003] 3 All ER 1122 at [45]) that it is “only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability”. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger . . . or the despair of prisoners which may lead them to inflict injury on themselves . . .

[50] My Lords, for these reasons I consider that even if swimming had not been prohibited and the council had owed a duty under s 2(2) of the 1957 Act, that duty would not have required them to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were perfectly obvious. If that is the case, then plainly there can have been no duty under the 1984 Act. The risk was not one against which he was entitled under s 1(3)(c) to protection.’

[32] Similar passages are to be found in the speech of Lord Hobhouse of Woodborough, who described the claimant as ‘an 18-year-old youth who ought to be well able to appreciate and cope with the character of an ordinary lake’ (at [71]) and said that all the relevant characteristics of the lake were already obvious to the claimant and that no purpose was in fact served by the defendants’ warning: ‘[74] . . . It told [the claimant] nothing he did not already know.’

[33] In general I think it unnecessary to refer to the earlier authorities cited by Mr Eklund, all of which were considered in Tomlinson’s case. It is, however, worth noting that Tomlinson’s case approved the very similar reasoning in Ratcliff v McConnell [1999] 1 WLR 670 in relation to injury sustained by a trespasser when diving into a closed swimming pool at night. Stuart-Smith LJ, giving the main judgment, stressed the importance of identifying the risk or danger concerned, and continued (at 680–681):

‘36. The relevant danger here was that if someone dived into the pool they might hit their head on the bottom if there was insufficient water to

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accommodate the dive. That is a danger which is common to all swimming pools. There is no uniformity in shape, size or configuration of swimming pools. It seems to me that it is a danger which is obvious to any adult and indeed to most children who were old enough to have learnt to dive.

37 . . . Even if the defendants knew or had reasonable grounds to believe that students might defy the prohibition on use of the pool and climb over the not insignificant barrier of the wall or gate, it does not seem to me that they were under any duty to warn the plaintiff against diving into too shallow water, a risk of which any adult would be aware and which the plaintiff, as one would expect, admitted that he was aware . . . Even in the case of a lawful visitor there is no duty to warn of a danger that is apparent . . .’

[34] Mr Eklund relied on such authorities before the judge as well as before us. At para [59] of his judgment, the judge said that he distinguished the present case on its facts from all of those cited by Mr Eklund. He also distinguished them on the basis that they were cases in tort, under the Occupiers’ Liability Acts, whereas the claimant’s claim was in contract and for breach of statutory duty. At [59](1) he said this:

‘[I]n this case the claimant sues for the defendant’s breach of contract and their statutory liability for improper performance. This case is therefore not about the claimant’s limited rights under the Occupiers’ Liability Acts legislation. Therefore, considerations of a very different nature arise here as compared with the public use of what I shall generally call “the natural environment”. Especially, in my judgment, this case is nothing at all to do with imposing unreasonable obligations upon alleged tortfeasors, the liability of owners of either public or privately owned property to which either visitors or trespasser gain access and then suffer death or personal injury, let alone does the floodgates argument arise in this case of indeterminate liability to an unknown and undiscoverable class of potential litigants in this perceived litigious age.’

[35] At [59](2) he said that ‘the claimant had actually paid this defendant as part of a commercial enterprise for a holiday abroad that would impliedly be reasonably safe for him, and be properly performed as a contract’, and that contractual and statutory duties then arose.

[36] At [59](3) he referred to the ‘free will arguments’ demonstrated in the Occupiers’ Liability Act cases cited by the defence, but expressed the view that ‘this is not a free will case in that context’ for several reasons:

‘(a) This is not so because the defendant undertook to contract personally with this claimant—incidentally, then a minor. If he was such a stranger as those appear to be in the defendant’s cited cases, this defendant was in a commercially dominant position both to require more information about this contracting party with whom in fact they chose to engage, and even to deploy exemption or limitation clauses to protect themselves if they had so wished. They in fact did neither.

(b) The free will argument deployed here by the defence is surely quite misconceived. First, the real free will in any meaningful sense rested primarily with the defendant. They chose to contract with him and accept

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his money. By comparison, this claimant was entitled to presume that his holiday contract fulfilled common sense and the reasonable hope and expectation that he would be kept reasonably safe by the application of the generally recognised standards of the leisure industry, as incidentally admitted in substance by para 2 of their defence. This defendant did not, as I have found.

I have a third comment to make about this free will argument as deployed here by the defendant against this claimant. Implied in this concept if relevant to a claim that any breach of contract or statutory duty is to be defeated, there must surely also be the claimant’s informed consent to a known, or advised, risk at the time of his own apparent, and alleged, folly. In this case, as I have tried to demonstrate, I find on the facts this to be quite to the contrary. It seems to me that this claimant had neither any properly informed consent, and nor was he properly and appropriately advised as his contractual rights and the statutory provisions required, in the proper performance of this contract.’

[37] This was followed by the judge’s conclusion (at [60]) that ‘I necessarily find proved the defendant’s breaches of contract and the breach of their statutory liability as alleged by the claimant’. At [64], in the context of the issue of contributory negligence, he referred to ‘a proven breach of a contract, and blatant breaches as I find of the very legislation that was designed to protect such a vulnerable claimant as this’.

[38] The judge’s reasoning is open to a number of detailed criticisms: in particular, there is no obvious relevance in Kosmar having a dominant position (if it does) or having the power to require more information about the claimant; it would not have been open to Kosmar to exclude or limit liability for this accident; para 2 of the defence did not contain the admission attributed to it; and it is difficult to see what point the judge was making as regards informed consent and the giving of advice. But I would reject a further specific criticism made by Mr Eklund, that the judge was treating the FTO guidance as having statutory force: the judge’s references to statutory liability must have been intended to be references to liability under reg 15 of the 1992 regulations for improper performance of the contract.

[39] The fundamental question, however, is whether the judge was right to distinguish the line of cases under the Occupiers’ Liability Acts as he did and to treat them as having no relevance to the contractual context (and related statutory context) of the present case. There are of course factual differences between the cases. The judge was also right that the extent of the duty owed by occupiers of land to trespassers and even to lawful visitors may be affected by policy considerations that have no parallel in the context of a holiday contract. But the core of the reasoning in Tomlinson’s case, as in earlier cases such as Ratcliff v McConnell, was that people should accept responsibility for the risks they choose to run and that there should be no duty to protect them against obvious risks (subject to Lord Hoffmann’s qualification as to cases where there is no genuine and informed choice or there is some lack of capacity). That reasoning was held to apply in relation not only to trespassers but also to lawful visitors to whom there is owed the common duty of care under s 2(2) of the 1957 Act—a duty which, by s 5 of the 1957 Act, can be owed to contractual as well as to non-contractual visitors. I do not see why the

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reasoning should not also apply to persons to whom there is owed a duty of care in similar terms under a contract of the kind that existed in this case.

[40] Mr Eklund drew our attention to the fact that in Dean v Thomson Tour Operators Ltd (16 June 2000, unreported) it was agreed by the parties that where a tour operator was under a contractual duty to supply facilities to a reasonable standard, the principles to be applied were analogous to those in the 1957 Act. Mr Eklund was able to make forensic play of the fact that Mr Saggerson was on that occasion counsel for the defendant tour operator rather than the claimant, but I do not think that the case itself is of any real assistance, for the very reason that the point went by concession and, although implicitly accepted by the judge, was not the subject of any argument. For the reasons I have given, however, I think that the approach adopted in the case was the correct one.

[41] Applying that approach here, Kosmar’s duty of care did not extend, in my judgment, to a duty to guard the claimant against the risk of his diving into the pool and injuring himself. That was an obvious risk, of which he was well aware. Although just under 18 years of age, he was of full capacity and was able to make a genuine and informed choice. He was not even seriously affected by drink.

[42] Mr Saggerson argued that, on the particular facts as found by the judge, the claimant was not aware of any risk. At the moment when he dived, he assessed it as safe for him to dive, as others were doing. As the judge said, any prior and useful knowledge left him and he acted in a brief state of inadvertence. Mr Saggerson submitted that this case should be about the need for prominent signage to reduce the risk of people in the claimant’s position reaching a wrong conclusion as the claimant did. The point, in effect, was that it is not a matter of guarding against an obvious risk but of guarding against the possibility of a mistaken assessment of the risk. That is a clever way of seeking to meet the argument based on Tomlinson’s case, but I would reject it. The risk in this case remained an obvious one of which the claimant himself was previously aware and should have been aware at the moment he dived. The fact that at that moment he acted thoughtlessly, in a brief state of inadvertence, is not a good reason for holding Kosmar to have been under a duty that it would not otherwise have owed him.

[43] Accordingly I take the view that there was no duty to give the claimant any warning about the risk of diving into the pool, let alone to have better placed or more prominent signs than those actually displayed, or to take any other step to prevent or deter him from using the pool or from diving into it. His dive and its terrible consequences are matters for which he must take full personal responsibility.

[44] It follows that I would allow Kosmar’s appeal against the judge’s finding that Kosmar was in breach of its contractual duty of care and liable under reg 15 of the 1992 regulations for improper performance of the holiday contract.

CAUSATION

[45] I will deal with this issue even though, because of the conclusion I have reached on the first issue, it is not strictly necessary for me to do so.

[46] The judge, having found breaches of contract and breach of statutory duty, continued (at [60]): ‘I find that on the balance of probabilities this accident would not have happened but for them, and that causation is established by the claimant.' More specifically, it seems that causation was established on the

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basis that the claimant acted in a brief state of inadvertence and that better placed and more prominent warning signs would have brought him to his senses before he dived in. It was the claimant’s own belief, stated by him in evidence, that if he had seen signs he would not have dived in.

[47] The judge did not indicate the precise location or nature of the warning signs that in his view were required in order to fulfil the duty of care and have the requisite effect on the claimant’s mind. The judge had before him, however, photographs of signage put up since the accident, which include a new ‘no diving’ sign on the wall of the toilet block and an additional ‘no diving’ sign on a post located on the paved area at the shallow end of the pool (but standing some distance away from the pool itself). He is likely to have had this material in mind when reaching his conclusions.

[48] This court will be slow to interfere with a finding of this kind. I have to say, however, that the finding in this case causes me considerable concern. It is striking that the claimant, on his own evidence, had not previously seen or taken in, even in day time, any of the matters that indicated the existence of a shallow end, and did not see them on the occasion of the accident. He did not even see the ladder-type steps which were close to the point from which he dived in. Moreover the accident occurred in the hours of darkness, with the pool itself unlit, though the path lights were still on and would have cast some light onto the general area of the pool; and the claimant commented in his witness statement that the light was poor. In all the circumstances, if ‘no diving’ signs of the kind that were put up after the accident had been present at the time of the accident, I think it improbable that they would have made any difference: it is unlikely that the claimant would have seen them or taken them in or that they would have operated to bring him to his senses and prevent the accident. Similar considerations apply in relation to any contention that there should have been explicit signage prohibiting use of the pool after the bar had closed and the main lights had been turned off (though, as Mr Saggerson appeared to accept in argument, that was not the basis on which the judge found liability). It is also unlikely that additional signage would have stopped other people from using the pool and diving in, or therefore from setting the example which the claimant said he followed.

[49] In my view we are in as good a position as the judge to evaluate the relevant evidence and reach a conclusion on it; and, for the reasons given, I respectfully differ from the conclusion reached by the judge. In my judgment the claim should fail on causation even if a breach of duty were established. This provides an additional reason for allowing the appeal against the judge’s finding of liability.

CONTRIBUTORY NEGLIGENCE

[50] Given the conclusion I have reached on liability, Kosmar’s appeal against the judge’s finding in relation to contributory negligence falls away. I shall do no more than outline the issue and express the conclusion I would have reached on it had it arisen for decision. Mr Eklund submitted that relevant causative responsibility for the accident lay almost wholly with the claimant, whose degree of responsibility was at least 80%, and that the judge’s conclusion defied rational analysis. Mr Saggerson submitted that this case had 50:50 stamped all over it. I would have accepted Mr Saggerson’s submission. In my judgment, if the judge’s approach to liability had been correct, there would

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have been no basis for interfering with his equal apportionment of responsibility.

CONCLUSION

[51] In conclusion, whilst sympathising greatly with the claimant’s plight, I take the view that the judge’s finding of liability was wrong, both as regards breach of duty and as regards causation. I would allow the appeal and dismiss the claimant’s claim.

HOOPER LJ.

[52] I agree.

ARDEN LJ.

[53] I also agree.

Appeal allowed.

Kate O’Hanlon Barrister.

R v Ulcay;

R v Toygun

[2008] 1 All ER 547

[2007] EWCA Crim 2379

Categories:        CRIMINAL; Criminal Law: PROFESSIONS; Lawyers        

Court:        COURT OF APPEAL, CRIMINAL DIVISION        

Lord(s):        SIR IGOR JUDGE P, PITCHERS AND OPENSHAW JJ        

Hearing Date(s):        26 JULY, 19 OCTOBER 2007        

Criminal law – Trial – Counsel – Solicitor – Duties – Defendant changing his instructions at close of prosecution case – Legal representatives withdrawing on grounds of professional embarrassment – Judge refusing new representatives’ application for two-week adjournment – New representatives also withdrawing – Defendant remaining unrepresented during trial – Defendant convicted – Whether conviction safe – Duties of counsel and solicitors.

The trial of a number of defendants, including U, for conspiracy to facilitate the commission of breaches of immigration law began on 5 September. After the close of the prosecution case U completely changed his instructions. Under para 602 of the Code of Conduct of the Bar of England and Wales a self-employed barrister had to ‘comply with the “Cab-rank rule” and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must . . . (a) accept any brief to appear before a Court in which he professes to practise; (b) accept any instructions; (c) act for any person on whose behalf he is instructed . . .’ Paragraph 603 stated: ‘A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed . . .' On 18 October immediately before U’s case was due to be presented to the jury his counsel and solicitors applied to the judge to withdraw from the case on the grounds of professional embarrassment. The judge allowed the application, stating that counsel and solicitors were in ‘an impossible professional situation’. The case was adjourned to enable new counsel to take further instructions. On 20 October new counsel sought a four- to six-week adjournment. The judge was prepared to grant only a short adjournment to allow three days for counsel to read the papers and a day for an additional conference with U. Counsel told the judge that in those circumstances they would be unable to act, having taken advice from the Bar Council. On 24 October two new counsel appeared on U’s behalf. They asked for a seven day adjournment to prepare the case. The judge refused but agreed to adjourn for a further three days. On 26 October counsel reapplied, seeking a two week adjournment. The judge refused. He stated that it was not in the interests of justice for a long trial with more than one defendant to be allowed to be derailed because one of the defendants had changed his instructions. The second new team of lawyers then withdrew from the case. The trial proceeded on 28 October with U unrepresented. He was convicted. He appealed against conviction submitting that the judge had been wrong to allow counsel to withdraw from the case; that he had been wrong not to have allowed new counsel and solicitors more time to read themselves into the case; and that he should have discharged the jury from reaching a verdict in U’s case. The court considered whether, and if so, in what circumstances, counsel and solicitors instructed immediately before the beginning or during the course of a trial could refuse to accept instructions on behalf of a defendant because of the difficulties

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created by judicial case management in particular in relation to adjournments. The court considered para 701(b)(ii) of the Bar Code of Conduct which directed that a barrister should not undertake any task for which he did not have time and opportunity to prepare for and perform and r 2.01(b) of the Solicitors Code of Conduct which required a solicitor to refuse to act for a client ‘where you have insufficient resources or lack the competence to deal with the matter’.

Held – (1) The original counsel and solicitors had been right to withdraw and the judge had been equally correct not to have sought to interfere with their decision. The court could not oblige a lawyer to continue to act when he had made a professional judgment that he was obliged, for compelling reasons, to withdraw from the case (see [28]–[31], [33], [36], below); R v Jones (No 2) [1972] 2 All ER 731 and R v Shaw [1980] 2 All ER 433 considered.

(2) The cab-rank rule and the rationale which supported it applied whenever, and however late, a barrister was instructed. The absence of what he would regard as sufficient time for the purpose of preparation did not constitute an exception; the exceptions to the cab rank rule were expressly identified in para 602 of the Bar Code of Conduct. Paragraph 701(b)(ii) was not an exception to the cab-rank rule but was concerned to prevent a barrister from accepting work over and above his existing commitments which he would not be able adequately to prepare and deal with in a professionally competent manner. A barrister faced with the problem which had faced new counsel in the trial in the instant case was professionally required to do the best she could. That process would normally encompass discussions with former counsel, taking stock generally, analysis of the issues likely to arise thereafter and sensible applications to the trial judge for adjournment as and when the need arose. In such circumstances an order for wasted costs or a successful action for professional negligence against counsel who had taken on that burdensome responsibility in such an awkward situation could not realistically be in contemplation in the absence of some remarkable subsequent developments (see [37]–[41], below); Ridehalgh v Horsefield [1994] 3 All ER 848 applied.

(3) Rule 2.01 of the Solicitors Code of Conduct did not require a solicitor to refuse or cease to act in circumstances such as those of the new lawyers in the instant case. Rule 2.01 was not directed to the situation where an order of the court made it harder for a solicitor to discharge his professional obligations to his client. In the conduct of criminal litigation a solicitor was an officer of the court; he had an obligation to the court to comply with its orders and to do the best for his client in the light of those orders. There was no reason to distinguish the professional position of a barrister and a solicitor. Neither was in breach of the rules of his profession or acting improperly or negligently if the worst that could be said was that he was doing his best to comply with orders of the court which made it impossible or difficult to look after the client’s interests to the standard which, without those difficulties, he would normally be expected to achieve. Accordingly, the decisions of the new counsel and solicitors to withdraw had been wrong and to the extent that they had been acting on the advice of their professional bodies the advice they had received had been wrong. However the conviction had been safe and the appeal would therefore be dismissed (see [43]–[46], below).

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Notes

For barristers: acceptance and refusal of instructions and withdrawal from case and return of instructions, see 3(1) Halsbury’s Laws (4th edn) (2005 reissue) paras 517–539, and for solicitors: practice rules; basic principles, see 44(1) Halsbury’s Laws (4th edn reissue) para 488.

Cases referred to in judgment

Arthur JS Hall & Co (a firm) v Simons, Barratt v Ansell (t/a Woolf Seddon (a firm)), Harris v Scholfield Roberts & Hill (a firm) [2000] 3 All ER 673, [2002] 1 AC 615, [2000] 3 WLR 543, HL.

R v Al Zubeidi [1999] Crim LR 906, CA.

R v G [2004] EWCA Crim 1368, [2004] 1 WLR 2932, CA.

R v Jisl (July 14 2000, unreported), CA.

R v Jones (Anthony) [2005] UKHL 5, [2002] 2 All ER 113, [2003] 1 AC 1, [2002] 2 WLR 524, HL.

R v Jones (No 2) [1972] 2 All ER 731, [1972] 1 WLR 887, CA.

R v Khan (Ashgar) (10 July 2001, unreported), Crown Ct.

R v Shaw [1980] 2 All ER 433, [1980] 1 WLR 1526, CA.

R v Van Binh Le [1999] 1 Cr App Rep (S) 422, CA.

Ridehalgh v Horsefield [1994] 3 All ER 848, [1994] Ch 205, [1994] 3 WLR 462, CA.

Appeal and applications

R v Ulcay

The appellant Erdogan Ulcay (i) appealed against his conviction on 23 November 2005 in the Crown Court at Isleworth after a trial before Judge Testar and a jury of conspiracy to facilitate the commission of breaches of immigration law by individuals who were not citizens of the European Union; and (ii) applied for leave to appeal against his sentence of 12 years’ imprisonment. The General Council of the Bar and the Law Society made submissions relating to the professional responsibilities of the legal professions. The facts are set out in the judgment of the court.

R v Toygun

Ismail Toygun applied for leave to appeal against his sentence of seven years’ imprisonment following his conviction in the Crown Court at Isleworth after a trial before Judge Testar and a jury of conspiracy to facilitate the commission of breaches of immigration law by individuals who were not citizens of the European Union. The facts are set out in the judgment of the court.

Benjamin Aina (assigned by the Registrar of Criminal Appeals) for the appellant.

Charles Garside QC and Roger Smart (instructed by the Crown Prosecution Service) for the Crown.

Timothy Cray (instructed by the General Council of the Bar) for the General Council of the Bar.

Bruce Houlder QC (instructed by the Law Society) for the Law Society.

Judgment was reserved.

Page 550 of [2008] 1 All ER 547

19 October 2007. The following judgment of the court was delivered.

SIR IGOR JUDGE P.

[1] This is an appeal by Erdogan Ulcay against his conviction on 23 November 2005 at Isleworth Crown Court, before Judge Testar and a jury, of conspiracy to facilitate the commission of breaches of immigration law by individuals who were not citizens of the European Union. He was sentenced to 12 years’ imprisonment. His co-defendants included Ismail Toygun, who was sentenced to seven years’ imprisonment, Mustaffar Gozcu, sentenced to six years’ imprisonment, Ali Surensoy, sentenced to ten years’ imprisonment, and Muharrem Garip, who pleaded guilty before trial, and was sentenced to three years’ imprisonment.

[2] The only significant ground of appeal arises from events which occurred at the close of the prosecution case. At the outset the appellant was represented by two counsel and solicitors, but they then ceased to represent him. The trial proceeded to a conclusion. The appellant was unrepresented. It is submitted that the judge mishandled the problem which arose when counsel withdrew from the case, and that the effect of his rulings produced an unfair trial.

[3] Some of the issues which arise in the appeal are illustrative of problems which arise unfortunately with increasing frequency and create difficulties for the trial process and disadvantage to the proper administration of justice. As questions of importance to the professional responsibilities of the legal professions also arise, we received very helpful submissions on behalf of the General Council of the Bar (the Bar Council) from Mr Timothy Cray, and from Mr Bruce Houlder QC on behalf of the Law Society. There were some significant differences between their respective submissions, and Mr Benjamin Aina, on behalf of the appellant, took robust issue with some of the underlying submissions made on behalf of the Bar Council.

THE PROSECUTION CASE

[4] The prosecution case was that the defendants were part of a large commercial enterprise engaged in making arrangements for the illegal entry into the United Kingdom of people who live beyond the borders of the European Union. These defendants were based in the United Kingdom, but the conspiracy included others based in Germany, with yet others from elsewhere in Europe. Most of those smuggled into the United Kingdom were, like all the defendants, of Turkish origin. The conspiracy lasted for just over a year, from the beginning of July 2003 until the end of July 2004. Its linked purposes were first, to ensure that the illegal immigrants entered into the United Kingdom undetected, and second, if they were detected, to support them with bogus applications for asylum.

[5] The Crown’s case against the appellant was formidable. Police in Germany lawfully intercepted and recorded a large number of telephone calls which, by themselves, established the existence of the conspiracy, and the prosecution demonstrated that in consequence numerous individuals entered the country using false names. Many of their travel arrangements were paid for by credit card fraud operated by Garip and the travel arrangements were linked to various telephone conversations recorded by the police in Germany. This evidence directly implicated the appellant as the organiser of the operation. He was known as ‘Edi’ or ‘Eddie’. A listening device placed in the appellant’s BMW car produced additional powerful support. The conversations between the appellant and other

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conspirators were preoccupied with the mechanics of illegal immigration. Travel arrangements and arrival details of various different illegal entrants were discussed. The calls also revealed a constant source of money difficulties between the appellant and his contact in Germany. Details of some of the immigrants stopped by the authorities on entry were found in the appellant’s home. Some of them had his telephone numbers with them on arrival, and he was seen to meet others after they entered the country. The prosecution also drew attention to a series of financial transactions by which the appellant transferred money to his associates in Europe and Turkey, which again were referred to in the intercepted telephone conversations.

[6] The appellant was arrested at Heathrow Airport on 9 April 2004. He was present with Surensoy, driving his car, in which nine telephones were being carried. The appellant said that two of the phones in the centre console were his and that the two in his pockets belonged to his son and his brother, as he was using both. Of the remaining phones four were found in the console, and one in the boot. He was interviewed on the following day. In the presence of a solicitor and an interpreter he presented a prepared statement claiming that he was ‘100% innocent’, adding that he had been advised by his solicitor not to answer questions and that the written statement had been prepared for him by his solicitor. He was subsequently interviewed on five occasions. Apart from saying that he was not Turkish, but Kurdish, he made no comment.

THE TRIAL

[7] Before the trial began a number of admissions were made by the appellant. The critical admission was that ‘Erdogan Ulcay’ was known as ‘Eddie’. It was also admitted that the observations set out in the prosecution schedule represented an accurate record of events, that telephone numbers listed in the prosecution schedule were correctly attributed to the individuals who had the use of those numbers, and further that, the words attributed to the appellant by the prosecution in the course of intercepted calls were spoken by him (although some minor relevant corrections were made during the course of the evidence).

[8] The trial began on 5 September 2005. The appellant’s defence throughout was conducted with appropriate professional skill in the light of his then instructions. Just before the close of the prosecution case, the court was unable to sit for something over a day because of jury difficulties. On the afternoon of Thursday 13 October, it was anticipated that the Crown’s case was about to close. At 2 pm, in the absence of the jury, counsel informed the judge that his client intended to give evidence, but that it would be preferable for his evidence not to start immediately. The Crown’s case concluded at 3.35 pm. After its close, in the presence of the jury, counsel told the court that the appellant wanted to give evidence and intended to do so, but would prefer not to start until the following morning. The judge agreed that this was a reasonable proposal and so the case was adjourned until the following morning.

[9] Next morning, again in the absence of the jury, counsel informed the judge that the appellant no longer wished to give evidence. He said that the appellant had made his decision after a great deal of time had been spent in conference both on Thursday afternoon and Friday morning. The judge checked with counsel whether, given that decision, there was any reason why he should not give the appellant the usual warning in the presence of the jury. Counsel confirmed that there was no reason why he should not. The discussion then moved to witnesses to be called on the appellant’s behalf. The judge decided to allow time for this

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purpose, because in view of the appellant’s decision not to give evidence, the witnesses were not immediately available, and could not be brought to court for that day. Accordingly the case was adjourned on Friday, and as the judge put it, ‘very little work was done in front of the jury’. However the judge was determined that the appellant should not be under any pressure, and he made himself available throughout Friday if witness summonses were required. No applications were made.

[10] On Monday 17 October, again in the absence of the jury, the judge was told by counsel that the appellant did not wish to call any of the witnesses he had in mind on Friday, but that he did want to call another witness, who had originally been a prosecution witness, who was neither called nor tendered. The witness was found, but the judge was informed that the witness would not be available to come to court that day. However, if allowed, he would attend first thing on the next day. The judge, showing exemplary patience, agreed. The case was again adjourned. Until this moment the trial had proceeded without undue difficulty. All that now changed, and we must describe subsequent events in greater detail.

THE CRUCIAL DEVELOPMENTS

[11] On the next day, 18 October, immediately before the appellant’s case was due to be presented to the jury, both counsel and solicitors who had represented him to date applied to the judge to withdraw from the case on the grounds of ‘professional embarrassment’. At the same time, fresh counsel applied to the judge for a transfer of the representation order under reg 16(2)(a) of the Criminal Defence Service (General) (No 2) Regulations 2001, SI 2001/1437.

[12] Subject to the limits of legal professional privilege, Judge Testar rightly required the most detailed possible explanation for these developments. Counsel informed him that the basis on which the appellant’s case had been prepared and presented to the jury to date was that the voice on the intercept tapes attributed to ‘Eddi’ was the appellant’s voice, and that the appellant was ‘Eddi’. The appellant’s instructions had changed. He now denied that he was Eddi, or that the words spoken by Eddi on the intercept material were his words, or that the voice originally admitted to be his voice was his voice. Indeed the appellant himself, from the dock, twice asserted that the voice was not his voice. He also added that he ‘definitely’ did not want to be represented by his legal team.

[13] The appellant had somehow procured the attendance of a Mr Khan, who stated that he was a legal executive, and appeared before the judge and asked for permission to act as the appellant’s ‘McKenzie’ friend. However the appellant then asked for fresh legal representation. In order to discover more about the appellant’s position, the judge heard submissions from a new barrister, Miss Tayo, whose attendance had also been arranged, again presumably before the appellant’s decision about his legal team had been communicated to the judge. She informed the judge that she was instructed that the appellant wanted the trial to start again, in front of a fresh jury, with fresh legal representation. She continued that he wished to withdraw the admissions he had made thus far, adding that the defence case statement was not his document and that he had signed it in blank without reading it.

[14] In giving his ruling Judge Testar helpfully recorded his own assessment of the way in which the trial had been conducted to date. He took account of what he had observed in court throughout the trial thus far, and in particular events at the close of the prosecution case, and the way in which they unfolded before him.

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He believed that trial counsel had acted with ‘energy’. He had seen for himself instructions being taken through the course of the prosecution evidence, with many notes passing backwards and forwards between the appellant and his legal team. He expressed concern ‘whether it really was necessary for there to have been an independent interpreter acting on behalf of each defendant’, a concern which was subsequently vindicated when the appellant addressed the jury on his own behalf. The judge satisfied himself that the case had been conducted throughout on the basis of the appellant’s instructions and he rejected any suggestion to the contrary. He did not feel it possible to expect counsel and solicitors to continue to act on the appellant’s behalf. They were in ‘an impossible professional situation’. He believed that the application for fresh representation was motivated by the appellant’s wish to ‘have a separate trial in front of a fresh jury’. The judge added that although he would allow the application by the existing legal team to withdraw, he reminded the appellant that he could reconsider his position, and that if he did so, and his original solicitors and counsel were prepared to consider theirs, it would not be too late.

[15] The judge proposed to adjourn the case until the following Thursday. He believed that two days would be sufficient to enable fresh counsel to prepare the case. The first question to be addressed was whether the defendant wished to withdraw his decision not to give evidence. If so, the judge intimated that an application would probably be granted. If not, it seemed reasonable to anticipate that any evidence the co-defendants might give would be consistent with their interview accounts of events, and counsel could take instructions about the evidence as and when it was given.

[16] The case was then adjourned to enable Miss Tayo, who stated that she was prepared to act for the defendant, to take further instructions. On Thursday 20 October, Mr Aina appeared for the defendant, seeking a four to six week adjournment. The application was refused, the judge indicating that he would be prepared to grant a short adjournment. He said that he would give counsel the opportunity to spend Friday and the weekend reading the papers, and would then allow the further option of Monday being used for an additional conference with the defendant. If asked he would therefore adjourn the trial until Tuesday, which would be long enough in the circumstances. Having thought carefully about the remaining stages of the trial, and how they could be managed in the interests of justice overall, he concluded that the case would have to proceed whether the defendant was represented or not. Counsel told him that in these circumstances they would be unable to act. Mr Aina informed the judge that he had considered his position, and spoken to senior members of the profession and the Bar Council. The judge suggested that he would adjourn briefly for Mr Aina to take further advice from the Bar Council. This offer was declined. Counsel then left the court. Discussion then took place between the judge and the Crown about the directions to be given to the jury if the defendant was unrepresented, and how to be provided with appropriate assistance. On the following day, Mr Aina and Miss Tayo formally withdrew from the case.

[17] On 24 October, two new counsel appeared on behalf of the appellant. They asked for a seven-day adjournment. The judge refused but agreed to adjourn for a further three days. On 26 October counsel reapplied, this time seeking a two-week adjournment. The judge refused. In his ruling, he summarised all the previous events. The time requested by the two new teams of lawyers would effectively derail the trial. He was in no doubt that what had happened was that the appellant’s case had changed. He asked himself whether

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it was in the interests of justice for a long trial with more than one defendant to be allowed to be derailed because one of the defendants changed his instructions. ‘The answer resoundingly . . . is No.' He addressed the time sought by fresh counsel to prepare the case. He explained that the effect of these applications would be—

‘effectively, to derail the trial because it would not be practical in front of this jury and out of justice to all of the parties, which includes the prosecution and the other defendants, to carry on this trial against all four defendants if the adjournment that I was being asked for were granted.’

He carefully examined the stage which the trial had reached, the way in which the defences had been presented and the trial developed, and examined the submission that it would be—

‘unfair to expect Mr Ulcay firstly to say whether he is going to give evidence in response to that charge and secondly, if he is going to, to give evidence without the substantial adjournments that are sought.’

Having done so, he rejected the application for a two-week adjournment, pointing out that on 24 October, counsel had sought a much more modest adjournment, and indeed at one stage had said that the order actually made by the judge was generous. He was wholly unpersuaded that a two-week adjournment was required. If granted, it would mean that four weeks had elapsed since the prosecution closed its case, and just over three weeks since the original lawyers had withdrawn. The second new team of lawyers thereupon withdrew.

[18] The judge explained to the appellant how he intended to proceed. The trial would continue on Friday 28 October. In the presence of the jury he would invite him to come into the witness box with an interpreter (although he underlined that he could see no particular language difficulties) and ask whether he intended to give evidence or not. He expected the answer to be clear, ‘Yes or No’. If the answer was unclear he would work on the basis that the last choice expressed by the appellant represented his position. If witnesses were to be called they had to be available. If he was not giving evidence, they had to be available on Friday.

[19] On 28 October, in the absence of the jury, the court reassembled. The appellant was unrepresented. Counsel for the Crown and the judge prepared a list of questions on broad topics which the defendant might like to consider dealing with in evidence if he changed his mind and decided to give evidence. The appellant and the interpreter were invited to the witness box. The judge explained that if he wished to give evidence the appellant could do so. He could not give evidence in his closing speech. The appellant was asked whether he had changed his mind and wished to give evidence, because if so, he would be allowed to do so. The judge reminded him that the last thing he knew from original trial counsel was that he did not want to give evidence. The appellant said, more than once, that he did not know what to do, and commented that he did not know how to use his legal rights. He did not know, but he ‘didn’t think’ he wanted to call witnesses.

[20] When the jury returned to court, they were given a proper direction about the circumstances in which the appellant was unrepresented, and told that his fresh lawyers had withdrawn from the case because they said that they did not have sufficient time to prepare it. That was not a matter to be held against the

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appellant. The trial would continue. In the presence of the jury the appellant was then asked whether he intended to give evidence, with an appropriate warning about the consequences of failing to do so or failing clearly to state what he wished to do. The appellant said that he did not know. The judge said that he would proceed on the basis of his previous election not to give evidence. Asked whether he understood, the appellant replied that he did and when asked whether he wanted to call evidence, he repeated several times that he did not know, before eventually saying that he did not wish to do so.

[21] The defence cases of the other defendants then proceeded in the usual way. The evidence was concluded. On 9 November counsel and solicitor attended court after some form of contact from the appellant, but no application was made to the judge, and they did not remain.

[22] On 10 November the appellant asked that many documents from the unused material should be put before the jury as evidence. The application was granted. He applied to postpone making his closing speech until the following Monday. Again, the application was granted. On 15 November, at his own request speaking in English, Mr Ulcay began to address the jury shortly before lunch. He put a further 120 documents before the jury. During his speech, from time to time he sought to give evidence, and the judge rightly stopped him from doing so. His speech continued throughout the rest of the day, and was eventually concluded shortly before 4 pm on the following day. Thereafter the case of the remaining defendants was concluded, and the judge summed up the case. Apart from some token point, no substantial criticism is made of the summing up and we can see nothing in the criticism.

THIS APPEAL

[23] On behalf of the appellant, Mr Aina focused attention on the circumstances in which counsel withdrew from the case, and its consequences. He first submitted that the judge was wrong to allow counsel to withdraw from the case. If that submission failed, he was wrong not to allow new counsel and solicitors more time to read themselves into the case, and to allow them the time they said they needed to do so. Unless he was prepared to do so, and in view of his decision not to allow the time, the judge should have discharged the jury from reaching a verdict in the appellant’s case.

[24] Our attention was drawn to the convention rights provided by art 6(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) given ‘full effect’ at common law, summarised by Lord Bingham of Cornhill in R v Jones (Anthony) [2005] UKHL 5 at [8], [2002] 2 All ER 113 at [8], [2003] 1 AC 1, that the defendant should have sufficient opportunity to prepare his defence, and thereafter to defend himself or be represented at trial by a competent lawyer. All this is axiomatic and elementary. It is however equally elementary that the processes designed to ensure the fairness of his trial cannot be manipulated or abused by the defendant so as to derail it, and a trial is not to be stigmatised as unfair when the defendant seeking to derail it is prevented from doing so by robust judicial control. Such a defendant must face the self-inflicted consequences of his own actions.

[25] Mr Aina pointed out that in his ruling on 18 October, the judge did not expressly state that the appellant was seeking to manipulate the process of the court. Indeed he never said so. However we have no hesitation in saying that it is perfectly obvious that this is what the appellant was seeking to do, a conclusion

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which we would have reached independently of, but which is powerfully fortified by, the factual observations of trial counsel following the appellant’s waiver of privilege. When he was addressing these problems, it was incumbent on the judge to be more reticent. It does not need much imagination to envisage the likely response if he had suggested that the process was being abused or manipulated. It would have formed the basis for an application for a new and separate trial before a new jury and an ‘unbiased’ judge. We shall focus exclusively on the stark realities.

[26] This appellant was provided with competent lawyers at public expense and given ample opportunity for the preparation of his defence. Before trial the issues were carefully addressed by him, and his lawyers, and he was then properly represented by counsel before the jury. It was a constant theme of the pre-trial preparation, and indeed of the discussions in conference while it was in progress, that counsel could only act on the basis of the appellant’s instructions. For example, counsel made clear that he would not challenge evidence which the defendant accepted was accurate, and the fact that another co-defendant was challenging the same evidence could not justify a challenge on the appellant’s behalf. All this seemed to be clearly understood by the appellant, at any rate until the close of the prosecution case, when his understanding appears to have broken down.

[27] The correct meaning of the phrase ‘acting on instructions’, as it applies to the professional responsibility of the advocate in any criminal court, is sometimes misunderstood, even by counsel. Neither the client, nor if the advocate is a barrister, his instructing solicitor, is entitled to direct counsel how the case should be conducted. The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client ‘instructs’ him to say. In the forensic process the client’s ‘instructions’ encompass whatever the client facing a criminal charge asserts to be the truth about the facts which bring him or her before the court. Those instructions represent the client’s case, and that is the case which the advocate should advance. In practical terms, that will often mean that prosecution witnesses will be cross-examined on the basis that they are lying or mistaken, or have misunderstand or misinterpreted something said or done by the defendant; however there is almost always some evidence advanced by the prosecution which, on the basis of the client’s instructions, is not in truth in issue at all, either directly, or indirectly. Some decisions, of course, must be made not by the advocate, but by the defendant personally, for example, and pre-eminently, the plea itself, and in the course of the trial, the decision whether or not to give evidence. The advocate must give his best professional advice, leaving the ultimate decision to the client. It is however always improper for the advocate to seek to challenge evidence which is accepted to be true on the basis of the facts agreed or described by the client, merely because the lay client, or the professional client, wishes him to do so. He may not accept nor act on such instructions.

[28] By the time the trial starts, there should be no confusion about the defendant’s factual account or explanation of every essential issue. There was none here. At the end of the prosecution case when the defendant completely changed his instructions, counsel was presented with an impossible situation. If he could properly do so, of course he had to continue to represent his client, but there are occasions, and this was one of them, when he could not do so. It is for counsel to decide whether, consistent with his obligations to his client, and the court, and the rules of his profession, he is so professionally embarrassed that he

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cannot continue with the case. If so, again consistent with his duty to the court, but without contravening the legal privilege which underpins his professional relationship with his client, he should inform the court of his situation, providing such explanation as he can, to enable the judge to decide how to proceed. It is difficult to imagine cases in which it would be appropriate for the trial judge to direct counsel that he must continue with a case, or refuse him permission to withdraw on the grounds of professional embarrassment if, having heard counsel explain his position, counsel remains unpersuaded that he may properly continue to act, not least because counsel will almost certainly be better informed than the judge, in particular because there are likely to be considerations which he may be unable to reveal. In essence we agree with the observations of Rose LJ in R v G [2004] EWCA Crim 1368 at [14], [2004] 1 WLR 2932 at [14]:

‘Both in principle and pragmatically . . . whether a solicitor or barrister can properly continue to act is a matter for him or her and not the court, although of course the court can properly make observations on the matter’.

[29] If it needed re-enforcing, this approach is fortified by reference to earlier decisions which examined the responsibilities of counsel where the defendant absconded during the course of the trial. In R v Jones (No 2) [1972] 2 All ER 731, [1972] 1 WLR 887 and R v Shaw [1980] 2 All ER 433, [1980] 1 WLR 1526 it was recognised that it was the responsibility of counsel, not the judge, to decide whether he could continue to represent the defendant. The same principles apply here. In the extremely unlikely event that the judge has grounds for believing that counsel is not acting in good faith, and in accordance with the obligation owed to the court, counsel’s conduct should be referred to the Bar Council. Plainly where the advocate in question is a solicitor, the reference should be to the Law Society.

[30] The overwhelming majority of defendants in the Crown Court are legally represented at public expense. Our approach to the issue of principle is consistent with the provisions of the 2001 regulations, the relevant regulations which apply to the provision of legal representation in criminal cases at public expense. Regulation 16 governs any application for a change of representative. The court may grant or refuse it. The grounds are set out in reg 16(2)(a)(i)–(iv). One of the consistent requirements of the regulation is that the legal representative should provide details of the nature of the duty which he believes requires him to withdraw from the case, or the nature of the breakdown in the relationship between him and his client. Requirements like these cannot impinge on the obligation of confidentiality between lawyer and client. The lawyer will do his best to comply with the requirement within the limits of the rules governing legal professional privilege, with the result that the court may be less well informed of the pressures on the lawyer to withdraw from the defence or explain the nature of the breakdown. The principle nevertheless remains clear. The court cannot oblige the lawyer to continue to act when he has made a professional judgment that he is obliged, for compelling reasons, to withdraw from the case.

[31] The purpose of this part of the regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to the fact that the lawyer offers sensible, but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the

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consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer’s retainer for improper motives, the court is not bound to agree to an application for a change of representation. What we find in practice in most cases is that courts faced with this problem are usually prepared to agree to at least one change of representative, provided they are proposed in reasonable time before the trial, and before substantial costs have already been expended in the preparation of the defence case. In the end, however, the ultimate decision for the court is case and fact specific, and it does not follow from the repeated indication of the mantra ‘loss of confidence’ that an application will be granted.

[32] Our approach is entirely consistent with the judgment of Judge Wakerley QC, then the Recorder of Birmingham, dated 10 July 2001 in R v Khan (Ashgar), addressing the 2001 regulations. Expressing his concern at the increasing number of applications for transfer of representation in the Crown Court, he observed:

‘This court will insist on strict compliance with the provisions of reg 16 . . . The grounds of the application and full particulars need to be specified by the existing representatives. Next, the substantial compelling reason under sub-para 2(a)(iv), if relied on, needs to be specified so that I can identify it. It will not generally be sufficient to allege a lack of care or competence of existing representatives . . . only in extremely rare cases, and where full particulars are given in the application, will a general ground of loss of confidence or incompetence be entertained. It must further be pointed out that it will not be sufficient simply to say that there is a breakdown in the relationship between solicitor and client. Many breakdowns are imagined rather than real or as a result of proper advice.’

We commend these observations by a judge whose lamented early death deprived the criminal justice system of one of its most admired practitioners.

[33] The situation created at this trial involved not only a dramatic change of the appellant’s instructions about critical aspects of the prosecution case when it was coming to its end, but also his publicly expressed assertion that his then trial counsel should cease to act for him. Counsel and solicitors were right to withdraw, and the judge was equally correct not to seek to interfere with their decision.

[34] Mr Aina suggested that the judge could have done more to investigate the defendant’s position directly with him, and in particular whether the defendant ‘really’ wished to change his defence, and whether he ‘really’ wished his counsel and solicitors to withdraw. He relied on R v Al Zubeidi [1999] Crim LR 906 and R v Jisl (July 14 2000, unreported). Naturally, judges should seek to find a commonsense solution to the kind of problems to which the withdrawal of counsel or a change of instructions can give rise, clearing up possible misunderstandings and, as best they can, introducing the calm and balance which sometimes can evaporate in the forensic process. However these decisions do not support, and it would be surprising if they did support, the essential thrust of Mr Aina’s contention.

[35] It would rarely be right for the trial judge, midway through a trial, to be required to engage in a personal discussion with a defendant about his defence, and whether it was changing, or the state of the professional relationship with his

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lawyers, and certainly not if satisfied that the defendant was attempting to manipulate the process. All that can be said is that the judge can be relied on to do his best to resolve any problems in the sensitive and delicate situation which has developed, where the potential for subsequent judicial embarrassment is huge. For example, the evidence of the manipulative defendant, if he gives it at trial, under cross-examination, can be anticipated ‘I only said that because the judge persuaded me to do so’ or ‘The judge would not let me change my mind’, or ‘The judge ordered me to keep my lawyer when I had lost confidence in him’. And if observations like these were not made in evidence, they would certainly, with an accretion of elegance, form part of grounds against conviction. In our judgment, the judicial investigation suggested by Mr Aina would have been wholly inappropriate, and would almost certainly have achieved the derailment of the trial which the judge was trying so desperately hard to avoid. In our view the judge did all that he reasonably could.

[36] In all these circumstances the judge was entitled to exercise his discretion to refuse the lengthy adjournment sought by counsel. In this particular case we cannot detect any injustice suffered by the appellant, and the trial continued with an unrepresented defendant in circumstances which the appellant himself had procured. The judge’s preferred choice would have been for the defendant to continue to be represented. However he was not prepared to allow the trial to be derailed. A lengthy adjournment would have produced either an inordinate delay in the trial of all the defendants, in which case the jury would have been discharged, and a new trial started again at huge public inconvenience and costs, and possibly prejudice to the remaining defendants as well as the prosecution, or alternatively, that which the appellant was seeking, for the trial of the remaining defendants to continue, with the jury discharged from giving a verdict in his case, and the subsequent trial for the appellant on his own. That would have been contrary to the interests of justice overall. The fact that the judge was prepared to transfer the legal aid certificate does not mean that he was saying that, whatever the consequences to the trial, new representation must be obtained, and that thereafter he would conduct the trial in accordance with whatever applications were made by new counsel. The clear implication of what the judge decided was that whilst he was content for new representation to be obtained at public expense and no doubt he hoped that it would, nevertheless, he could not and did not abrogate his responsibilities to the interests of justice in the overall context of the trial and its proper conduct and management.

PROFESSIONAL CONDUCT

[37] We must now address the decisions made by the two sets of new lawyers to withdraw, and whether, and if so in what circumstances, counsel and solicitors instructed immediately before the beginning or during the course of the trial may refuse to accept instructions on behalf of the defendant because of difficulties created by judicial case management, in particular in relation to adjournments. These are questions of some importance to the legal professions.

[38] Before we examine the submissions on behalf of the professions, we should emphasise that we immediately recognise the practical difficulties faced by a barrister or solicitor who is invited to take on a defence case at a very late stage, and even more so, if invited to do so half way through a long trial, and we are not unsympathetic to them. However, stripped to essentials, the starting point in any analysis is that the trial judge must decide whether and if so for how long he is prepared to adjourn a trial to accommodate new counsel. The

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responsibility is vested exclusively in him. We can think of no exceptions. If his decision produces an injustice or deprives the defendant of the fair trial to which he is entitled, the remedy is to be found in this court. The rules of the legal professions must defer to and be consistent with these principles.

[39] Counsel cannot chose his clients, or more accurately, cannot refuse to accept the instructions of a solicitor to act on behalf of an individual because of the nature of the charge he faces, or because of his character and reputation. The ‘cab-rank rule’ is clearly laid down in para 602 of the Code of Conduct, and the self-employed barrister is required in terms to ‘comply’ with it. Specific exceptions are provided. One is professional embarrassment, which may arise if, having regard to his other professional commitments, the barrister will be unable adequately to prepare the case (paras 602 and 603(b)). The existing exceptions are not immutable, and may be extended from time to time. However further exceptions have not yet been admitted, either following the disappearance of the advocate’s immunity from suit, or the publicly ventilated difficulties arising in relation to legal aid, or indeed to what Mr Aina described as the ‘human rights’ of the individual barrister, or the proper operation of art 6 of the convention.

[40] The cab-rank rule is essential to the proper administration of justice. It is not without its critics, although criticism is largely directed at the possible evasion of the principle, rather than the principle itself. For example in Arthur JS Hall & Co (a firm) v Simons, Barratt v Ansell (t/a Woolf Seddon (a firm)), Harris v Scholfield Roberts & Hill (a firm) [2000] 3 All ER 673, [2002] 1 AC 615 Lord Steyn, while doubting whether much weight could be placed on the ‘cab-rank rule’ in support of the immunity of the advocate from suit, nevertheless affirmed that it was a ‘valuable professional rule’ ([2000] 3 All ER 673 at 680, [2002] 1 AC 615 at 678). So did Lord Hoffmann, who underlined that it was a ‘valuable professional ethic of the English Bar’ ([2000] 3 All ER 673 at 687, [2002] 1 AC 615 at 686). In Ridehalgh v Horsefield [1994] 3 All ER 848, [1994] Ch 205, the Court of Appeal quashed the wasted costs order made against counsel in Antonelli v Wade Gery Farr (a firm) just because the judge overlooked the obligations imposed on counsel by the cab-rank rule. The group of cases under consideration all arose from civil proceedings, but Sir Thomas Bingham MR (as he then was) expressed the hope that the judgment would provide general guidance which would be of value in criminal cases as well. We simply emphasise that if the cab-rank rule creates obligations on counsel in civil proceedings, it does so with yet greater emphasis in criminal proceedings, not least because to a far greater extent than civil proceedings, criminal proceedings involve defendants charged with offences which attract strong public aversion, with the possibility of lengthy prison sentences, when more than ever, the administration of justice requires that the defendant should be properly represented, so allowing the proper exercise of his entitlement at common law and his convention rights under art 6, summarised by Lord Bingham in R v Jones (Anthony).

[41] The cab-rank rule, and the rationale which supports it, applies whenever, and however late, the barrister is instructed. The absence of what he would regard as sufficient time for the purpose of preparation does not constitute an exception. Paragraph 701(b)(ii) of the rules directs that a barrister should not undertake any task for which ‘he does not have adequate time and opportunity to prepare for or perform’. It does not constitute an exception to the cab-rank rule. Those exceptions are expressly identified in para 602 where the rule is promulgated. Paragraph 701(b)(ii) is concerned to prevent a barrister from accepting work over and above his existing commitments which he will not be

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able adequately to prepare and deal with in a professionally competent manner. In our judgment, the barrister faced with the problem which faced new counsel in the present trial was professionally required, in the words of Sir Thomas Bingham MR in relation to Antonelli’s case (in Ridehalgh v Horsefield) ‘to soldier on and do the best she could’([1994] 3 All ER 848 at 895, [1994] Ch 205 at 269). That exhortation itself conveys a clear acknowledgement of something of the difficulties which inevitably arise. The process would normally encompass discussions with former counsel, taking stock generally, analysis of the issues likely to arise thereafter, and sensible applications to the trial judge for adjournment as and when the need arose. And, perhaps we should add, in circumstances where counsel is soldiering on, doing his or her best, an order for wasted costs, or a successful action for professional negligence against counsel who has taken on this burdensome responsibility in such an awkward situation could not realistically be in contemplation in the absence of some remarkable subsequent developments.

[42] We must finally address the differences in the position of the Bar Council and the Law Society. Whereas it is accepted by Mr Cray that newly instructed counsel should indeed ‘soldier on’ and do the best he can notwithstanding the judge’s decision that the period of adjournment should be significantly shorter than the time sought by counsel, Mr Houlder submitted that this course was inappropriate for and unavailable to a solicitor who would be at risk of contravening Law Society rules. Mr Houlder pointed out that a solicitor is entitled to decide whether or not to ‘take on’ any particular client. The rules tell him when he must refuse to act or continue to act. They make no reference to an obligation to act in accordance with the cab-rank rule which applies to barristers, at any rate when the solicitor is instructing counsel. Once the client is taken on the solicitor must continue to act for him unless some good reason for ceasing to do so emerges.

[43] Mr Houlder drew attention to r 2.01(b) which requires the solicitor without sufficient resources or lacking the necessary competence to cease to act, and he pointed out that it is an elementary core duty of the profession that a good standard of service should be provided for the client. Breach of r 2 in particular could provide evidence of inadequate professional services, and professional misconduct. The rules do not expressly identify an obligation on the solicitor to continue to instruct counsel who has decided, in accordance with his own professional duties, to soldier on. Mr Houlder suggested that where the judge permitted only an adjournment which the solicitor and counsel believed was too short for the purposes of proper preparation of the case, the solicitor found himself within the ambit of r 2.01(b). He was obliged to refuse to act, or to cease to act. Those were the rules of the profession, and he courteously reminded us that the court had no power to alter its rules.

[44] If Mr Houlder were correct, therefore, the members of one of the two legal professions, the barrister in the Crown Court is obliged to ‘soldier on’, while the solicitor is required not to do so, with the result that the barrister would lack the instructions which would enable him to comply with his professional obligations. A moment’s thought suggests that this cannot be right. In our judgment the answer is that r 2.01 of the Law Society rules is not directed to and the solicitor is not prevented from acting nor required to cease to act where an order of the court creates difficulties and makes it that much harder for him to discharge his professional obligations to his client. These difficulties arise because of the judge’s ruling, not the absence of appropriate resources or necessary

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competence. The ruling, however, is binding on him, as it is on the barrister, and indeed everyone else involved in the conduct of the case. In the situation currently under consideration, the conduct of criminal litigation, the solicitor is an officer of the court. He has an obligation to the court to comply with its orders, and to do his best for his client in the light of those orders. We can see no reason why the professional position of the barrister and solicitor can or should be distinguished. Both owe a duty to the court. Both should comply with it. Both must soldier on. Neither is in breach of the rules of his profession, nor acting improperly or negligently, if the worse that can be said of him is that he was doing his best to comply with orders of the court which made it impossible or difficult for him to look after the client’s interests, to the standard which, without those difficulties, he would normally be expected to achieve.

[45] Accordingly, if it is thought that r 2.01(b) requires the solicitor to refuse or cease to act in circumstances like the present, that perception is wrong. It is not a good reason for ceasing to act for a client that a solicitor disagrees with the decision of the court, even if he believes that the order has caused insuperable difficulties for him, or his client, in the preparation and conduct of the defence. In our judgment the decisions of the new teams of barristers and solicitors were wrong. To the extent that they were acting on the advice of their professional bodies, the advice they received was wrong.

CONCLUSION.

[46] In these circumstances we have re-examined the safety of this conviction. The case against the appellant was overwhelming. The logical explanation for his determination to manipulate the trial process is that he understood perfectly clearly that the prospects of an acquittal were vanishingly slight. So, at the end of the prosecution case, he sought to change his story, to reject the defence case statement, and to withdraw the formal admissions made on his behalf by competent lawyers acting on his instructions. His trial was as fair as he allowed it to be. The conviction is safe. The appeal is dismissed.

LEAVE TO APPEAL AGAINST SENTENCE

[47] There are renewed applications for leave to appeal against sentence by the appellant and Ismail Toygun.

[48] The judge approached his sentencing decision on the basis that the conspirators were involved in a commercial enterprise, operated in a determined and persistent manner. It had nothing to do with assisting friends or relations, the needy or oppressed. Although the number of people actually trafficked was unknown, the number was substantial and significant. The operation was large.

[49] The judge examined a number of decisions of this court, in the context of legislative increases in the maximum penalty of the offences from seven years, to ten years, and then again from 10–14 years. He examined the specific aggravating features identified in R v Van Binh Le [1999] 1 Cr App Rep (S) 422. With those considerations in mind he considered the individual features of each case. He had no doubt that Ulcay was at the very centre of the conspiracy, and that all the aggravating features identified in R v Van Binh Le were present. He regarded Ulcay as a manipulative criminal. He considered whether the maximum sentence would be appropriate in Ulcay’s case, but concluded that there probably would be more serious examples of the offence, adding that if so they would probably not be very much more serious. Accordingly the sentence of 12 years’ imprisonment was imposed.

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[50] In relation to Toygun, the judge concluded that he was an active member of the conspiracy, with full knowledge of its working and organisation, and closely involved in the movement of a large number of individuals. He took account of the applicant’s good character, and the medical evidence, which showed that he had undergone a bypass operation shortly before or immediately after his arrest. That represented a continuing concern, although the applicant himself had said in evidence that his health was good.

[51] The submissions on Ulcay’s behalf were based in part on an alleged disparity between him and Surensoy, who was sentenced to ten years’ imprisonment, together with a contention that there was no evidence of the ill-treatment, suffering, physical and mental abuse to which illegal immigrants are sometimes subjected. The appellant had not given evidence, and so had not lied on oath.

[52] The single judge observed:

‘The applicant was the ring leader in a major people smuggling conspiracy, of a highly sophisticated nature and running for at the very least five months. Bearing in mind the need for deterrence, this sentence albeit severe, cannot be regarded as manifestly excessive.’

[53] These observations exactly reflect our own views. The application is dismissed.

[54] In relation to Toygun the single judge observed that the reasons for a severe sentence were explained by the judge in his sentencing remarks. He continued:

‘Having heard the evidence over a period of months, the judge was in the best possible position to assess the extent of your involvement in this conspiracy, and he was entitled to make the findings that he did. Bearing in mind the necessity to deter others, it cannot be said that this sentence is manifestly excessive.’

[55] Again, we agree. We shall not repeat the same conclusion using different language. This application, too, is dismissed.

Appeal dismissed. Applications dismissed.

Carla Dougan-Bacchus Barrister.

Austin and another v Metropolitan Police Commissioner

[2008] 1 All ER 564

[2007] EWCA Civ 989

Categories:        HUMAN RIGHTS; Liberty: CRIMINAL; Police        

Court:        COURT OF APPEAL, CIVIL DIVISION        

Lord(s):        SIR ANTHONY CLARKE MR, SIR IGOR JUDGE P AND LLOYD LJ        

Hearing Date(s):        27–29 MARCH, 15 OCTOBER 2007        

False imprisonment – Necessity – Right to liberty and security – Breach of the peace taking place or reasonably thought to be imminent – Rights of innocent third parties – Police detaining crowd on public highway in order to prevent breach of the peace – Detention amounting to false imprisonment of innocent third parties – Whether imprisonment lawful – Whether breach of right to liberty and security – Human Rights Act 1998, Sch 1, Pt I, art 5.

A demonstration took place in London on 1 May 2001. The police had information that a demonstration was planned but the organisers had not co-operated with the police. Their publicity material led the police to expect a gathering in Oxford Circus at 4 pm. Oxford Circus had a diameter of about 50m, all of which was taken up by roads, pavements, and four entrances to the London Underground system. There was no free space for people to congregate. At about 2 pm a crowd of demonstrators marched into Oxford Circus. Later others entered or tried to enter and by the end of the day there were about 3,000 people in Oxford Circus. In addition there were crowds of thousands in adjacent streets. Most of the people who entered Oxford Circus at 2 pm were prevented from leaving by the formation of a police cordon. From about 2.20 pm no one was allowed to leave except with police permission. Many were prevented from leaving for a period of over seven hours. A number of people who were not demonstrators were caught up within the police cordon, although some were allowed through. The first claimant had taken part in the demonstration, making speeches through a megaphone. The second claimant had taken no part in the demonstration, but had been caught up in the events of the day. Both were detained within the cordon for many hours. Each presented himself or herself to a police officer on the cordon and asked to leave but was not permitted to do so for a long period. The first claimant had sought release on the ground that she had an 11-month old baby to collect and the second claimant had sought release on the ground that he was not a protester. They commenced proceedings against the defendant commissioner of police, claiming damages at common law for false imprisonment and under the Human Rights Act 1998 for breach of their right to liberty, guaranteed by art 5a of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998 Act). Their complaint was that they had been unlawfully deprived of their liberty, detained and unlawfully imprisoned by not being released much earlier than they had been. The judge held that the cordon had been lawfully imposed on all those present, including the claimants, because an apprehended breach of the peace was imminent and the police reasonably suspected that everyone,

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including the claimants, had been about to commit a breach of the peace. He concluded that the claimants had been deprived of their liberty within the meaning of art 5 of the convention but that the deprivation fell within the exception provided for lawful detention. The findings of fact by the judge included that if the police were to prevent violence and the risk of injury to persons or property they had had no alternative at 2 pm, when the decision had been made, but to impose an absolute cordon. He therefore dismissed the claims and the claimants appealed.

Held – (1) Where a breach of the peace was taking place, or was reasonably thought to be imminent, before the police could take any steps which interfered with or curtailed in any way the lawful exercise of rights by innocent third parties they had to ensure that they had taken all other possible steps to ensure that the breach, or imminent breach, was obviated and that the rights of innocent third parties were protected. The taking of all other possible steps included (where practicable), but was not limited to, ensuring that proper and advance preparations had been made to deal with such a breach, since failure to take such steps would render interference with the rights of innocent third parties unjustified or unjustifiable, but where, and only where, there was a reasonable belief that there were no other means whatsoever whereby a breach or imminent breach of the peace could be obviated, the lawful exercise by third parties of their rights could be curtailed by the police. The test was one of necessity which it was to be expected could only be justified in truly extreme and exceptional circumstances, and the action taken had to be both reasonably necessary and proportionate. In the instant case the appellants had not appeared to be about to commit a breach of the peace and the judge’s conclusion to the contrary had been wrong. However, their containment, which had amounted to ‘imprisonment’ for the purpose of the tort of false imprisonment, had been lawful because, on the facts found by the judge, the police had had no alternative but to ask all those in Oxford Circus to remain inside the police cordon in order to avoid an imminent breach of the peace by others (see [27]–[35], [60]–[62], [67], [68], [72], [73], [119], below); O’Kelly v Harvey (1883) 14 LR Ir 105 and dicta of Lord Rodger of Earlsferry in R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 All ER 529 at [82]–[85], of Lord Brown of Eaton-under-Heywood in R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 All ER 529 at [119]–[129], and of Lord Mance in R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 All ER 529 at [147]–[149] applied.

(2) The containment of the claimants within the cordon had not amounted to a deprivation of liberty within art 5 of the convention, as opposed to an interference with liberty of movement. Accordingly, the appeal would be dismissed (see [93]–[107], [119], below); Guzzardi v Italy (1980) 3 EHRR 333, R (on the application of Gillan) v Metropolitan Police Comr [2006] 4 All ER 1041, HM v Switzerland [2002] ECHR 39187/98 and R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 All ER 529 considered.

Notes

For the right to liberty and security of the person, see 8(2) Halsbury’s Laws (4th edn reissue) paras 127–133, for the common law power of arrest to deal with or prevent breaches of the peace, see 11(2) Halsbury’s Laws (4th edn) (2006

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reissue) para 930, and for false imprisonment in general, and for justification, see 45(2) Halsbury’s Laws (4th edn reissue) paras 442, 455.

For the Human Rights Act 1998, Sch 1, Pt I, art 5, see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 705.

Cases referred to in judgment

Al Fayed v Metropolitan Police Comr [2004] EWCA Civ 1579, [2004] All ER (D) 391 (Nov).

Albert v Lavin [1981] 3 All ER 878, [1982] AC 546, [1981] 3 WLR 955, HL.

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA.

Beatty v Gillbanks (1882) 9 QBD 308, [1881–5] All ER Rep 559.

Blum v DPP [2006] EWHC 3209 (Admin), [2006] All ER (D) 303 (Dec).

Brogan v UK (1988) 11 EHRR 117, ECt HR.

Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97, [2003] 1 AC 681, [2001] 2 WLR 817, PC.

Christians against Racism and Fascism v UK (1980) 21 DR 138, E Com HR.

Engel v Netherlands (1976) 1 EHRR 647, ECt HR.

Ezelin v France (1991) 14 EHRR 362, ECt HR.

Guenat v Switzerland (1995) 81-A DR 130, E Com HR.

Guzzardi v Italy (1980) 3 EHRR 333, ECt HR.

HL v UK (2004) 17 BHRC 418, ECt HR.

HM v Switzerland [2002] ECHR 39187/98, ECt HR.

Ingleton v Dibble [1972] 1 All ER 275, [1972] 1 QB 480, [1972] 2 WLR 163.

Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26, [2007] 1 All ER 113, [2007] 1 AC 270, [2006] 2 WLR 1425.

Lawless v Ireland (No 3) (1961) 1 EHRR 15, ECt HR.

McVeigh v UK (1983) 5 EHRR 71, E Com HR.

Moss v McLachlan [1985] IRLR 76.

O’Kelly v Harvey (1883) 14 LR Ir 105, Ir CA; (1882) 10 LR Ir 285.

Osman v UK (1998) 5 BHRC 293, ECt HR.

R v Bournewood Community and Mental Health NHS Trust, ex p L [1998] 3 All ER 289, [1999] 1 AC 458, [1998] 3 WLR 107, HL.

R v Brown (1841) Car & M 314, 174 ER 522.

R v Spear, R v Boyd, R v Smith [2002] UKHL 31, [2002] 3 All ER 1074, [2003] 1 AC 734, [2002] 3 WLR 437.

R (on the application of Gillan) v Metropolitan Police Comr [2006] UKHL 12, [2006] 4 All ER 1041, [2006] 2 AC 307, [2006] 2 WLR 537; affg [2004] EWCA Civ 1067, [2005] 1 All ER 970, [2005] QB 388, [2004] 3 WLR 1144.

R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55, [2007] 2 All ER 529, [2007] 2 AC 105, [2007] 2 WLR 46; rvsg in part [2004] EWCA Civ 1639, [2005] 1 All ER 473, [2005] QB 678, [2005] 2 WLR 789; affg [2004] EWHC 253 (Admin), [2004] 2 All ER 874.

Soering v UK (1989) 11 EHRR 439, ECt HR.

Sporrong v Sweden (1982) 5 EHRR 35, ECt HR.

X v Germany (1981) 24 DR 158, E Com HR.

Ziliberberg v Moldova [2005] ECHR 61821/00, ECt HR.

Page 567 of [2008] 1 All ER 564

Appeal

Louis Austin and Geoffrey Saxby appealed with permission of Tugendhat J from his decision on 23 March 2005 dismissing their claim against the Metropolitan Police Commissioner for damages for false imprisonment and under s 7 of the Human Rights Act 1998. The facts are set out in the judgment of the court.

Keir Starmer QC and Phillippa Kaufmann (instructed by Christian Khan) for the appellants.

David Pannick QC, John Beggs, George Thomas and Amy Street (instructed by the Metropolitan Police Service) for the respondent.

Judgment was reserved.

15 October 2007. The following judgment was delivered.

SIR ANTHONY CLARKE MR.

This is the judgment of the court to which all its members have contributed.

CONTENTS

Section                Paragraphs        

I        Introduction        [1]–[4]        

II        The judge’s brief summary of events        [5]–[8]        

III        The claims        [9]–[11]        

IV        Common law—false imprisonment        [12]        

V        Breach of the peace        [13]–[50]        

VI        Key findings of fact relied on by the respondent        [51]        

VII        The appellants’ summary        [52]–[55]        

VIII        Did the appellants appear to be about to commit a breach of the peace?        [56]–[62]        

IX        If the appellants did not appear to be about to commit a breach of the peace, was their containment lawful?        [63]–[72]        

X        Conclusion on false imprisonment        [73]        

XI        Public Order Act 1986        [74]–[84]        

XII        Article 5 of the convention        [85]–[86]        

XIII        Deprivation of liberty under art 5(1)        [87]–[107]        

XIV        Article 5(1)(b)        [108]–[110]        

XV        Article 5(1)(c)        [111]–[117]        

XVI        Damages        [118]        

XVII        CONCLUSIONS        [119]–[120]        

I INTRODUCTION

[1] This is an appeal from an order made by Tugendhat J on 23 March 2005 dismissing an action brought by the appellants, Ms Austin and Mr Saxby, against the Commissioner of the Metropolitan Police arising out of events in Oxford Circus on May Day 2001 (see [2005] EWHC 480 (QB), [2005] All ER (D) 402 (Mar)). The claims were principally for damages at common law for false imprisonment and under s 7 of the Human Rights Act 1998 for breach of the appellants’ rights to liberty guaranteed by art 5 of the European Convention for

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the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998 Act). The appeal is brought with the permission of the judge.

[2] The trial of the action took place between 17 January and 4 February 2005. The judge heard a considerable amount of oral evidence and examined a large number of documents. The oral evidence took more than nine days and included the evidence of both appellants, of nine senior police officers and of two experts. In addition the judge watched 21 DVDs which showed the events both of May Day 2001 and of similar previous occasions.

[3] The judge’s judgment, which was produced with commendable speed, is a tour de force. It runs to nearly 150 closely typed pages and to 608 paragraphs. It analyses the events of 1 May 2001 in very considerable detail. It would be quite impossible for us to do the same in this judgment. What we say here should therefore be considered in the light of the judge’s judgment as a whole, to which the reader is referred for the details of what occurred.

[4] Between the decision of the judge and the hearing of this appeal the House of Lords delivered its decision in R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55, [2007] 2 All ER 529, [2007] 2 AC 105, which contains important guidance on the common law powers and duties of both the police and members of the public in order to prevent an anticipated breach of the peace.

II THE JUDGE’S BRIEF SUMMARY OF EVENTS

[5] The judgment is divided into a number of sections, from which we extract only those parts necessary for our decision, without in any way intending to distort the overall picture given by the judge or implying that the parties accept all the factual findings which are not expressly addressed. Section 1 contains a summary in [1]–[11]. At about 2 pm on May Day 2001, which was not a Bank Holiday, a crowd of demonstrators marched into Oxford Circus from Regent Street South. Later others entered or tried to enter from all points of the compass so that by the end of the day there were about 3,000 people in Oxford Circus. In addition there were crowds of thousands to the north of Oxford Street and on the west side of Oxford Street itself. The police had information that a demonstration was planned but the organisers had deliberately given no notice of what would happen at 2 pm. They had refused to co-operate with the police at all. Their publicity material led the police to expect a gathering in Oxford Circus at 4 pm. No warning had been given of any march or procession or of the route which demonstrators might take. It was this deliberate lack of co-operation by the organisers, which was unlawful, that led to the police responding as they did, and to everything that happened from 2 pm onwards. The appellants were not organisers but they and many others suffered the consequences.

[6] The crowd who entered the Circus at 2 pm were, for the most part, prevented from leaving. Others entered Oxford Circus during the afternoon. From about 2.20 pm no one was allowed to leave except with the permission of the police. Many were prevented from leaving for a period of over seven hours. A number of people who were not demonstrators were caught up within the police cordon, although some were allowed through.

[7] The disruption to shops, shoppers and traffic by the events on that day was enormous. It was a wet and chilly afternoon. Oxford Circus has a diameter of about 50 metres, all of which is taken up by roads, pavements, and the four entrances to the Underground. There is no free space for people to congregate.

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The physical conditions in Oxford Circus were for a short period quite acceptable but as time passed the conditions became increasingly unacceptable. In particular, in the absence of toilets, people had to relieve themselves in the street in public. This and other problems bore particularly hard on some of the women. Fortunately no one was seriously hurt but some of those attending came very close to sustaining injury and some policemen were injured.

[8] Neither appellant alleged that he or she was injured. Ms Austin had an 11-month old baby whom she needed to collect from the child minder at 4.40 pm. It is likely that in such a large crowd there will have been other women with commitments such as hers. Such a situation is a serious interference with human dignity. As the judge put it (at [7]), the point the appellants made was that the place was so unsuitable for holding a crowd that they should have been released before the problems became intolerable. The judge recognised (at [8]) that the fact that such events should take place in London, involving thousands of people unable to leave the police cordons, was a matter of public concern. The judge described (at [11]) the facts of this case as being quite exceptional. Never before, or since, 1 May 2001 have the police in England formed cordons enclosing a crowd of thousands before a substantial breakdown of law and order has occurred, with the result that the crowd were prevented from leaving for many hours.

III THE CLAIMS

[9] The judge summarised the claims in paras [12]–[17]. The appellants are two of some 150 people who have given notice of or commenced claims arising out of the events on 1 May 2001. The appellants claim damages for distress and also both aggravated and exemplary damages. Ms Austin had come to London to take part in the demonstration. Until about 3.30 pm she made speeches through a megaphone on political topics and thereafter, while she was unable to leave Oxford Circus, she made speeches through her megaphone giving advice and comfort to the crowd around her (see [13]). By contrast, Mr Saxby came to London on his employer’s business, not to demonstrate, and found himself caught up in the events of the day (see [12]). Both were detained within the cordons for many hours. They do not now complain so much about the initial cordon and consequent detention but complain that they were unlawfully deprived of their liberty, detained and unlawfully imprisoned by not being released much earlier than they were. Mr Starmer submits in particular that when each presented himself or herself to a police officer on the cordon and asked to leave, each should have been allowed to do so.

[10] It is important to note that, although the judge did not find either Ms Austin or Mr Saxby to be an entirely satisfactory witness, there is no suggestion that either of them acted other than lawfully throughout. The respondent accepted that neither of them was violent or threatened violence or breached the peace or threatened to do so. Ms Austin was exercising her right to demonstrate peacefully and Mr Saxby was innocently caught up in the events. Each wanted to leave the cordon but was not permitted to do so for a long period. After their requests to leave had been refused by individual police officers, neither made any attempt to break through the police cordon. We should perhaps note in passing that we do not know whether any or all the other people who have made or intimated claims were acting lawfully throughout; they may or may not have been.

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[11] As already indicated, the appellants’ claims are put at common law in the tort of false imprisonment and under s 7 of the 1998 Act for alleged unlawful detention contrary to their rights under art 5 of the convention. The judge rejected their claims under both heads. Mr Starmer QC submits on their behalf that he was wrong to do so. Before considering the facts found by the judge and the extent to which his findings are challenged, it is appropriate to consider the relevant legal principles. We agree with the submission of Mr Pannick QC on behalf of the respondent that it is appropriate to consider first the position at common law, and especially the defences to the tort of false imprisonment and the reasoning of the House of Lords in Laporte’s case. We note in passing that before the judge Ms Austin (but not Mr Saxby) also asserted a breach of her rights under arts 10 and 11 of the convention but that part of her case was rejected by the judge (at [598]–[608]) and there is no appeal in that regard.

IV COMMON LAW—FALSE IMPRISONMENT

[12] It is not, and could not be, in dispute that there was an interference with the liberty of the appellants which amounted to the tort of false imprisonment unless it was lawful. The respondent’s case is that the interference was lawful on one or more of three bases: by reason of what Mr Pannick calls breach of the peace powers, pursuant to powers conferred by the Public Order Act 1986 or pursuant to the doctrine of necessity. It is convenient to consider first breach of the peace and secondly the defence of necessity to the tort of false imprisonment. We will consider the legal principles and then the relevant facts under these heads before turning to the 1986 Act. Although it will be appropriate to touch upon some aspects of the Strasbourg jurisprudence in the context of our discussion of the position at common law, it nevertheless seems to us that the most convenient and appropriate course is to leave a consideration of the position under art 5 of the convention until the final part of the judgment.

V BREACH OF THE PEACE

[13] Before considering the legal principles discussed in Laporte’s case, we should briefly refer to the facts, although what follows is not intended to be a substitute for the more detailed account given by Lord Bingham of Cornhill ([2007] 2 All ER 529 at [2]–[17], [2007] 2 AC 105). The claimant, Jane Laporte, was a peace protester, who was a passenger on a bus going to a demonstration at an RAF base at Fairford in Gloucestershire. She was one of about 120 passengers on three buses travelling together. The police had intelligence that there were likely to be some violent protesters on the buses, including some members of a group called the Wombles. However, it was at no time suggested that the claimant was such a person or that she would or might act in a violent way or otherwise than peacefully. The police were concerned that, if they permitted the bus to reach Fairford, there would be a serious risk of violence. The chief constable had not however exercised his power under s 13 of the 1986 Act to prohibit the ‘procession’ (see [8]).

[14] The police stopped the buses at Lechlade, which was some five kilometres by road and two kilometres across the fields from the air base. The buses were searched and various articles were found and seized (see [11]). Eight members of the Wombles were identified. Chief Superintendent Lambert, who was the officer in charge of the operation, decided that the buses and their passengers (except for three people who were to speak at the demonstration) should not be allowed to proceed to Fairford but should be escorted back

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to London. The passengers were not allowed off the buses before they reached London (see [12]).

[15] The reasons given by Mr Lambert for his decision are set out at [13]. In the light of the intelligence and what was found on the buses, he concluded that a breach of the peace would have occurred at RAF Fairford and arrests made on the basis that a breach of the peace would then have been ‘imminent’. Although he said that he could not discount the potential risk that some peaceful protesters were caught up in the decision not to allow the buses to proceed, it was not possible to be certain who was intent on direct action and who was not.

[16] Both the Divisional Court and this court (of which I was a member) distinguished between arrest and action short of arrest and held that the police acted lawfully in not allowing the protesters to proceed to the demonstration but unlawfully in detaining them by sending them back on the bus to London: see the quotations from the judgments of both courts quoted by Lord Bingham at [15], [16]. Both sides appealed to the House of Lords. The claimant’s appeal succeeded but the chief constable’s cross-appeal failed. The basis upon which the claimant’s appeal was allowed was that no distinction could be drawn between a decision to arrest and a decision short of arrest and that neither arrest nor the action taken in refusing to permit the claimant to proceed to the demonstration could be justified unless a breach of the peace was ‘imminent’, at the time of the refusal, which on Mr Lambert’s own account it was not.

[17] In Laporte’s case Lord Bingham identified (at [29]) three situations of possible relevance as follows:

‘Every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur. This appeal is only concerned with the third of these situations.’

[18] Lord Bingham observed that the relevant principle was that stated in Albert v Lavin [1981] 3 All ER 878, [1982] AC 546, from which the House had not been invited to depart. Lord Bingham noted (at [31]) that Lord Diplock, with whom the other members of the House agreed, stated ([1981] 3 All ER 878 at 880, [1982] AC 546 at 565) the true principle as being:

‘that every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation.’

[19] The issue before the House in Laporte’s case was what was meant by ‘about to be’. The House held unanimously that the expression ‘about to be’ was to be equated with imminent or on the point of happening: see per Lord Bingham (at [39]–[51]), Lord Rodger of Earlsferry (at [62], [66]), Lord Carswell (at [101]), Lord Brown of Eaton-under-Heywood (at [110], [113]–[115]) and Lord Mance (at [141]). The House rejected the somewhat looser approach of both the Divisional Court and of this court. In doing so, as already stated, it also rejected

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the proposition, which had found favour in the courts below, that action short of arrest may be taken to prevent a breach of the peace which is not sufficiently imminent to justify arrest: see eg per Lord Bingham (at [50]) and Lord Rodger (at [64]–[66]).

[20] In all the circumstances we accept Mr Pannick’s submission that a threshold test of imminence must be passed before action may be taken to prevent a breach of the peace and that once the test of imminence is passed, action which is both reasonably necessary and proportionate to prevent a breach of the peace may be taken: see per Lord Bingham (at [39], [40], [46]–[49]), Lord Rodger (at [62]), Lord Carswell (at [101]), Lord Brown (at [114]) and Lord Mance (at [141]).

[21] The view of imminence taken by the House of Lords was enough to decide the appeal. However, some members of the appellate committee proceeded to consider a question which did not arise for decision in that case. That question was put by Lord Brown in this way (at [119]):

‘This brings me to the other question which, had your Lordships taken a different view of whether the police at Lechlade could reasonably have regarded a breach of the peace as already then imminent, would have needed to be addressed: the question as to the circumstances in which the police may take preventive action against persons other than those committing or reasonably apprehended of being about to commit a breach of the peace. Because it does not arise directly I shall touch on it comparatively briefly . . .’

Lord Mance posed the question (at [143]) whether and to what extent the police may take preventive action against anyone other than persons committing or reasonably apprehended as being about to commit a breach of the peace.

[22] As appears below, the judge in the instant case held that the cordon was lawfully imposed on all those present, including the appellants, because the apprehended breach of the peace was imminent and because the police reasonably suspected that everyone, including the appellants, was about to commit a breach of the peace in the exceptional circumstances of the case. On that basis, the further question considered in Laporte’s case does not arise here. However, the appellants challenge the judge’s conclusions of fact on this point and it seems to us that we should consider the relevant legal principles on the footing that the judge was wrong so to hold.

[23] Mr Pannick submits that in Laporte’s case, although not all of those who considered the question put the principle in quite the same way, it was accepted that in exceptional circumstances, if there is no other way of preventing an imminent breach of the peace, action can be taken against a person who does not himself or herself reasonably appear to threaten an imminent breach of the peace. The judge was therefore wrong to suggest ([2005] All ER (D) 402 at [520]) that the police need to have a reasonable suspicion that each person against whom action is taken poses a threat to the peace. Mr Pannick accepts of course that the judge did not have the benefit of the reasoning of their Lordships because Laporte’s case had not then been decided in the House of Lords.

[24] Mr Pannick relies upon the statements of Lord Rodger ([2007] 2 All ER 529 at [82]–[85]), Lord Brown (at [119], [123], [124], [127], [128]) and Lord Mance (at [147]–[149]). He also submits that Lord Carswell recognised (at [98]–[101]) the legitimacy of taking action against innocent third parties where there is no other way of preventing a breach of the peace. Mr Pannick submits that the

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reasoning of their Lordships is based, in particular, on three matters. They are the reasoning of the Court of Appeal in Ireland in O’Kelly v Harvey (1883) 14 LR Ir 105, the common law offence of refusing to aid a constable and the approach of the European Court of Human Rights (the ECtHR). As we see it, the central reasoning was that in O’Kelly v Harvey.

[25] In short the facts of O’Kelly v Harvey were these. We take them from Lord Rodger’s account of them ([2007] 2 All ER 529 at [79]). The plaintiff, a nationalist member of Parliament, sued the defendant for assault and battery. The incident arose out of a meeting which was to be held on 7 December 1880. The previous day a placard appeared summoning local Orangemen to assemble and oppose the meeting. The defendant, who was a justice of the peace for the district, was present at the meeting. According to his pleadings, which are referred to at (1882) 10 LR Ir 285 at 287–289, he knew of the placard and believed on reasonable and probable grounds that the only way of preventing a breach of the peace when the Orangemen arrived was to order the meeting to separate and disperse. The defendant asked the plaintiff and the other persons who were assembled to disperse and, when they failed to do so, he laid his hand on the plaintiff in order to disperse the meeting. On a demurrer the Court of Appeal in Ireland held that, if made out, these averments would constitute a sufficient defence to the action for assault and battery.

[26] Law C explained the position in this way in a passage quoted by Lord Rodger and reported at (1883) 14 LR Ir 105 at 109–110:

‘The question then seems to be reduced to this:—assuming the Plaintiff and others assembled with him to be doing nothing unlawful, but yet that there were reasonable grounds for the Defendant believing, as he did, that there would be a breach of the peace if they continued so assembled, and that there was no other way in which the breach of the peace could be avoided but by stopping and dispersing the Plaintiff’s meeting—was the Defendant justified in taking the necessary steps to stop and disperse it? In my opinion he was so justified, under the peculiar circumstances stated in the defence, and which for the present must be taken as admitted to be there truly stated. Under such circumstances the Defendant was not to defer action until a breach of the peace had actually been committed. His paramount duty was to preserve the peace unbroken, and that, by whatever means were available for the purpose. Furthermore, the duty of a Justice of the Peace being to preserve the peace unbroken he is, of course, entitled, and in fact bound, to intervene the moment he has reasonable apprehensions of a breach of the peace being imminent; and therefore, he must in such cases necessarily act on his own reasonable and bona fide belief, as to what is likely to occur. Accordingly in the present case, even assuming that the danger to the public peace arose altogether from the threatened attack of another body on the Plaintiff and his friends, still if the Defendant believed and had just grounds for believing that the peace could only be preserved by withdrawing the Plaintiff and his friends from the attack with which they were threatened, it was, I think, the duty of the Defendant to take that course.’

He added (at 112):

‘I assume here that the Plaintiff’s meeting was not unlawful. But the question still remains—was not the Defendant justified in separating and

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dispersing it if he had reasonable ground for his belief that by no other possible means could he perform his duty of preserving the public peace. For the reasons already given, I think he was so justified, and therefore that the defence in question is good . . .’

[27] That analysis played an important part in the reasoning of Lord Rodger, Lord Brown and Lord Mance in Laporte’s case [2007] 2 All ER 529, [2007] 2 AC 105. We take them in turn. Lord Rodger expressed the view that preventive action may be taken against innocent third parties on two bases. First, at [82] he cited O’Kelly v Harvey as authority for the proposition that—

‘. . . where it is necessary in order to prevent a breach of the peace, at common law police officers can take action . . . which affects people who are not themselves going to be actively involved in the breach . . .’

[28] Support for the proposition that it is necessity which forms the basis of the justification to take such steps, and therefore brings those steps within the ambit of what it is reasonable for the police to do in the face of an imminent breach of the peace, can be found in Beatty v Gillbanks (1882) 9 QBD 308, [1881–5] All ER Rep 559, which Lord Rodger cited in these terms ([2007] 2 All ER 529 at [80]), without referring to the case by name:

‘. . . What does need to be stressed, however, is that, as Dicey An Introduction to the Study of the Law of the Constitution (10th edn, 1959) pp 278–279, emphasised, using the familiar example of the Salvationists and the Skeleton Army:

“. . . the only justification for preventing the Salvationists from exercising their legal rights is the necessity of the case. If the peace can be preserved, not by breaking up an otherwise lawful meeting, but by arresting the wrongdoers—in this case the Skeleton Army—the magistrates or constables are bound, it is submitted, to arrest the wrongdoers and to protect the Salvationists in the exercise of their lawful rights.”’

The inference from that passage is that, if the peace cannot be preserved by arresting the wrongdoers (or presumably those imminently about to be wrongdoers), it is or may be the duty of a constable to break up a lawful meeting.

[29] Lord Rodger’s second point, which is again put on the basis that to prevent an imminent breach of the peace is necessary, is put thus (at [82], [83]):

‘Here, of course, the claimant and those like her were not going to take any part in any breach of the peace. Nor was their conduct likely to lead to one. But, as O’Kelly v Harvey shows, where it is necessary in order to prevent a breach of the peace, at common law police officers can take action (in that case dispersing a meeting) which affects people who are not themselves going to be actively involved in the breach . . ..

[83] On the same principle, where they need to do so in order, say, to reach the scene of an imminent breach of the peace, police officers must be able to clear a path through a crowd of innocent bystanders. Indeed, where necessary, a police officer is entitled to go further and call on any able-bodied bystanders for their active assistance in suppressing a breach of the peace. If, without any lawful excuse, they refuse to give it, they are guilty of an offence. See Archbold Criminal Pleading, Evidence and Practice (2006) p 1843

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(para 19-277). The law proceeds on the basis that “[i]t is no unimportant matter that the Queen’s subjects should assist the officers of the law, when duly required to do so, in preserving the public peace” (see R v Brown (1841) Car & M 314 at 318, 174 ER 522 at 524 per Alderson B). In the eyes of the law therefore innocent bystanders caught up in a breach of the peace are to be regarded as potential allies of the police officers who are trying to suppress the violence.’

[30] These considerations led Lord Rodger to the conclusion stated in [84]:

‘In the light of these authorities I would reject [counsel for the claimant’s] submission that there has to be a causal nexus between the persons affected by any measure taken by the police and the potential breach of the peace. In some circumstances a requirement of that kind would make it impossible for police officers to discharge their primary duty to preserve the peace. In a case like the present, therefore, provided that there was no other way of preventing an imminent breach of the peace, under the common law a police officer could stop a coachload of protesters from proceeding further, even although those on board included entirely peaceful protesters. The proviso is, however, vital.’

[31] Lord Brown addressed the issue in some detail at [119]–[129]. His analysis and conclusions can we think be summarised in this way: (i) Only, perhaps, in ‘extreme and exceptional’ circumstances can a police officer require an innocent third party to desist from lawful conduct and, if he refuses to desist, arrest him in the face of a breach or imminent breach of the peace by others. In other circumstances he cannot be required so to desist (see [123]). (ii) It is the primary duty of the police to ensure that innocent parties are able lawfully to exercise their rights. Their first duty ‘is to protect the rights of the innocent rather than to compel the innocent to cease exercising them’ (see [124]). That innocent members of the public are lawfully exercising or seeking lawfully to exercise such rights should make it ‘the more, not the less, important that the police should take all possible steps to advance rather than thwart their rights’ (see [129]). (iii) After considering such assistance as is available in the Strasbourg authorities, Lord Brown answered (at [127]) the question he posed for himself, namely whether the approach in O’Kelly v Harvey would be lawful today, as follows:

‘. . . Ultimately, therefore, I am persuaded that the approach adopted in O’Kelly v Harvey remains valid today but subject always to two provisos: first, that it is not used as an excuse for the police failing to prepare properly for likely confrontations, and, secondly, that there is absolutely no dilution of Law C’s stipulation that the constable has “just grounds for believing that the peace could only be preserved by withdrawing the Plaintiff and his friends from the attack with which they were threatened [and] that by no other possible means could he perform his duty of preserving the public peace” . . .’

(iv) The common law power and duty to require the assistance of innocent third parties to ensure that an imminent breach of the peace is avoided can be taken no further than it was in O’Kelly v Harvey and in Moss v McLachlan [1985] IRLR 76, DC. O’Kelly v Harvey applies only when absolutely ‘no other possible means’ are available to preserve the peace (see [2007] 2 All ER 529 at [128]). Moss v McLachlan is not relevant to the present question but to the test of imminence.

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[32] Lord Mance too considered the question in some detail (at [147]–[151]). We do not read his paras [144]–[146] as considering the question with which we are concerned. He identified our problem (or something close to it) at [147] as follows:

‘. . . Some authorities suggest a principle whereby, if it is the only way to prevent a third party (A) causing a breach of the peace, a police officer (or justice of the peace) may request another person (B) to desist from entirely lawful and innocent conduct, and, if B refuses to desist, may physically restrain B or charge B with wilfully obstructing the police officer (or justice of the peace) in the execution of her or his duty. Obstruction may consist in persisting in conduct of a positive nature which is, taken by itself, entirely lawful: cf eg Ingleton v Dibble [1972] 1 All ER 275, [1972] 1 QB 480. Perhaps the requisite duty may be found in the general duty of the police and justices to prevent a breach of the peace, and, in the consideration that, if the only way that a police officer has of avoiding a breach of the peace by A is to enlist the assistance of B by asking B to desist from otherwise entirely lawful and innocent conduct, then B as a citizen comes under a duty to afford that assistance when sought. There is practical attraction in such a principle.’

[33] Since it was not necessary in Laporte’s case to express a final view on the question whether such a principle exists, either at common law or under the convention, Lord Mance did not do so but in [148] said that, if it does, it must be confined to rare situations where the only way to avoid a reasonably apprehended and imminent breach of the peace being caused by others is to restrict the freedom of assembly and expression of entirely innocent people, which he defined as those not apprehended to be about to start a breach of the peace themselves or to cause one by interfering with the rights or liberties of, or provoking, others. He referred to O’Kelly v Harvey and emphasised, as Lord Rodger and Lord Brown had done, that it was there held that the assault or battery was justified if the justice of the peace ‘had reasonable ground for his belief that by no other possible means could he perform his duty of preserving the public peace’. (Lord Mance’s underlining.)

[34] Lord Carswell referred to O’Kelly v Harvey without disapproval but, as we read his speech, he did not express an opinion on the question identified by Lord Brown and quoted above.

[35] As we read the speeches of Lord Rodger and Lord Brown they give some support for the following propositions: (i) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected; (ii) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but (iii) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police; (iv) this is a test of necessity which it is to be

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expected can only be justified in truly extreme and exceptional circumstances; and (v) the action taken must be both reasonably necessary and proportionate.

[36] While it cannot we think be said that Lord Mance expressly supports those propositions, they seem to us to be consistent with his views. They are not inconsistent with the speech of Lord Carswell and Lord Bingham did not address these questions at all.

[37] Those propositions are principally derived from the approach of their Lordships to O’Kelly v Harvey but we should refer to the other two matters referred to above which played some part in their reasoning. The first is the principle referred to by Lord Rodger at [83], which we have already quoted, that it is in some circumstances an offence at common law to refuse to respond to a request for assistance by the police to suppress a breach (or presumably imminent) breach of the peace. As we see it, essentially the same tests of necessity must be satisfied as in the propositions set out above. This principle is thus consistent with those propositions.

[38] The second is the references made to the convention. In Laporte’s case the focus, at any rate in the case of the claimant’s appeal, was upon arts 10 and 11, which of course confer freedom of expression and freedom of assembly and association respectively. In part of Lord Rodger’s speech at [82] which we omitted from the quotation set out above he referred to the procedure in s 13 of the 1986 Act and added this:

‘. . . A prior authorisation procedure for public meetings is in keeping with the requirements of art 11, if only so that the authorities may be in a position to ensure the peaceful nature of the meetings (see [Ziliberberg v Moldova [2005] ECHR 61821/00]). By contrast, a peaceful protester does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of a demonstration (see Ziliberberg v Moldova and Ezelin v France (1991) 14 EHRR 362 at 375 (para 34 of the Commission’s decision)).’

[39] Lord Brown also referred (at [130]) to the 1986 Act and to Ziliberberg v Moldova [2005] ECHR 61821/00, where he noted that the exercise of powers conferred by s 13 would have the effect of thwarting the rights of those intent only on peaceful protest. He added that the police enjoy wide powers under s 12 which he would expect Strasbourg to sanction. Lord Brown also said this about art 11 in the part of para [127] to which we did not refer earlier, immediately after posing the question whether the approach in O’Kelly v Harvey would be lawful today and before expressing the conclusion that it would, subject to his two provisos:

‘. . . I can find little in the Strasbourg jurisprudence—which, as I have explained in [121], above, sanctions the concept of breach of the peace on the express basis that its scope has been clarified by recent decisions—to support it. On the other hand, both art 10 and art 11 provide in terms in sub-cl 2 for interference with the protective rights if this is “necessary” “for the prevention of disorder or crime” . . .’

Thus Lord Brown’s view was that the test of necessity upon which he placed so much emphasis ensured that the principle in O’Kelly v Harvey, which is reflected in the five propositions which we have tried to distil from the reasoning in

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Laporte’s case, was consistent with the freedoms expressed in arts 10 and 11 of the convention. We will return separately below to the principles enshrined in art 5.

[40] Lord Mance too referred to the Strasbourg jurisprudence. Indeed, his analysis of the issues in the appeal began with a consideration of art 11 and the relevant cases (see [135]–[137]). On the existence or otherwise of the principle which, as we said earlier, he identified at [147], after referring in [148] to O’Kelly v Harvey, as described above, he said this with regard to the convention:

‘[149] As to the convention, Mr Pannick QC pointed out that the European Commission and Court have accepted the legitimacy of general statutory restrictions on demonstrations in the form of a public procession, where necessary to avoid a breach of the peace: see Christians against Racism and Fascism v UK (1980) 21 DR 138 and Ziliberberg v Moldova . . . So the general statements in Ezelin v France (1991) 14 EHRR 362 (cf [144], above) may by parity of reasoning be subject to a similar qualification which would permit preventive action against an innocent person where it was reasonably apprehended that there was no other possible means of avoiding an imminent breach of the peace. On that assumption, a principle permitting such action in such a case would also appear to be sufficiently clear and certain to be considered as “prescribed by law”. But the European Court has at all times also stressed the importance of the rights of freedom of assembly and expression and that states have positive obligations to take steps to facilitate their exercise (cf [136], above). So, wherever possible, the focus of preventive action should, on any view, be on those about to act disruptively, not on innocent third parties.’

[41] The reference in [149] to the decision in Ezelin was to a reference in [144] to Ezelin v France (1991) 14 EHRR 362, to which Lord Rodger had referred in [82]. The part of [144] to which Lord Mance referred in [149] was in these terms:

‘As to the first point, preventive action may on any view be taken by a policeman or other citizen against the person reasonably apprehended to be committing or about to commit the breach of peace (See [138], above). As to action against others, in Ezelin v France (1991) 14 EHRR 362 the Commission considered that—

“generally speaking, an individual does not cease to enjoy the right to freedom of peaceful assembly simply because sporadic violence or other punishable acts take place in the course of the assembly, if he himself remains peaceful in his intentions and behaviour.” (See 375 (para 34).)’

The court said (at 389 (para 53)):

‘The Court considers, however, that the freedom to take part in a peaceful assembly—in this instance a demonstration that had not been prohibited—is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.’

The ‘first point’ referred to in [144] was whether and to what extent the police may take preventive action against anyone other than persons committing or reasonably apprehended as being about to commit a breach of the peace.

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[42] Reading [144] and [149] together, it seems to us that Lord Mance recognised the general approach of the ECtHR as protecting the rights of peaceful demonstrators described in [144] but subject to permitting preventive action against an innocent person where it was reasonably apprehended that there was no other possible means of avoiding an imminent breach of the peace. We should perhaps add that the decision in Ziliberberg v Moldova was recently followed by the Divisional Court, comprising Waller LJ and Lloyd Jones J, in Blum v DPP [2006] EWHC 3209 (Admin), [2006] All ER (D) 303 (Dec).

[43] In these circumstances we read Lord Rodger, Lord Brown and Lord Mance as being of the view that the approach identified in the five propositions set out above is not inconsistent with the Strasbourg jurisprudence. They are in our opinion consistent with it. Moreover, provided that it is recognised, as their Lordships each did, that the primary focus should be on the wrongdoers and not innocent demonstrators or those who are not demonstrators but are present by chance, and that, save in a case of absolute necessity, the right of freedom of expression under art 10 and the freedom of assembly and association under art 11 must be protected, the propositions seem to us to represent a fair and reasonable balance between the interests of all those involved.

[44] Mr Starmer submits, however, that the House of Lords was not considering the facts of a case like the instant case at all and is thus of no assistance. In particular, their Lordships did not have in mind the kind of coercive measures that were taken in this case. We accept that the House was not focusing on the application of principles of this kind to facts such as those found by the judge here. The facts were indeed quite different and their Lordships all considered that, on any view of the relevant legal principles, the police were not entitled to curtail the claimant’s rights under art 11. Moreover, in so far as the refusal to allow the bus to continue to Fairford was concerned, Laporte’s case was not treated as a case of false imprisonment. It had been so treated in so far as the bus was sent back to London without anyone being allowed off, but the House of Lords did not consider that part of the case separately because it was accepted that, if the claimant’s appeal succeeded, the cross-appeal was bound to fail. It is therefore fair to say that their Lordships were not specifically considering either the tort of false imprisonment or art 5 of the convention.

[45] Nevertheless, notwithstanding the differences between the facts of Laporte’s case and those of the instant case, we do not accept Mr Starmer’s submission that the speeches are of no assistance here. On the contrary, they seem to us to point the way forward.

[46] Mr Pannick relies upon the principles in Laporte’s case in two ways. First, he submits that the judge concluded at [523], [524] (and was entitled to conclude) that it reasonably appeared to the police that all those within the cordon (including the appellants) were demonstrators who appeared to be about to commit a breach of the peace. He submits that in these circumstances the refusal to allow them to leave the cordon, except in the context of the release of all those within it, was necessary and proportionate and that their detention within it was accordingly necessary and lawful and did not amount to the tort of false imprisonment.

[47] Secondly, and in the alternative, Mr Pannick submits that the actions of the police were a lawful response to a threatened breach of the peace because, even if the appellants did not personally appear to be about to commit a breach

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of the peace, the police were entitled in the exceptional circumstances of the case to take necessary and proportionate action against them by containing them within the cordon because, on the findings of fact made by the judge, that was the only way in which violent disorder, and the substantial risk of death or serious injury could be avoided. In short Mr Pannick submits that the propositions summarised above can be made good on the facts.

[48] Before considering the facts, we should consider Mr Pannick’s submission that, even if what he calls the police’s breach of the peace powers (which we have been considering at some length) do not afford the respondent a defence, necessity is recognised as a defence to the tort of false imprisonment, and on the judge’s findings of fact, it was necessary for the police to take the action they did. He relies upon paras [49]–[55] and [575]–[578].

[49] We accept that necessity can provide a defence to the tort of false imprisonment: see eg R v Bournewood Community and Mental Health NHS Trust, ex p L [1998] 3 All ER 289 at 299, 300–301, [1999] 1 AC 458 at 488, 490, per Lord Goff. The test of necessity is undoubtedly a high one but, as we see it, the problem faced by the respondent here is this. If the police’s breach of the peace powers are sufficient to afford the respondent a defence, he does not need this separate point. Given the part played by necessity in connection with those powers, we cannot at present see how the respondent could fail in the context of those powers but nevertheless succeed on the basis that he has a separate defence of necessity. It seems to us that the respondent can only succeed if he can show that it was necessary to take action to prevent a breach of the peace in the context of his breach of the peace powers. Put another way, as we see it, the relevant tests of necessity in this context are to be found in the five propositions summarised in [35], above.

[50] We therefore turn to the relevant findings of fact and, first to the key findings of fact relied upon by Mr Pannick on behalf of the respondent.

VI KEY FINDINGS OF FACT RELIED UPON BY THE RESPONDENT

[51] Both in the respondent’s revised skeleton argument and in the oral argument on his behalf Mr Pannick stresses these features of the judge’s findings:

(i) The police officers responsible for policing on the day were the most experienced public order officers in England (see [566]). About 6,000 police officers were deployed on the streets, which was about as large a number as had ever been so deployed. To have 6,000 officers policing about the same number of demonstrators was wholly exceptional (see [194]–[196]).

(ii) Demonstrations in London are common and it is the policy of the Metropolitan Police to ensure that people have the opportunity to express their views (see [245]–[246], [457], [603]).

(iii) There was no challenge to, or doubt cast upon, the accuracy and reliability of the intelligence on which the police operations were based. The Special Branch assessed the risks and seriousness of anticipated public disorder as being among the worst ever seen in London (see [565]). The Special Branch intelligence reported that there would be ‘500–1,000 hard core demonstrators looking for confrontation, violence and to cause public disorder’ (see [200]). The assessment that there would be such violence and disorder was supported by the lack of co-operation on the part of the organisers, the wearing of masks by demonstrators, the incitement to looting and violence in the organisers’

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literature and the suggestion of multiple protests to evade the police and the encouragement of secrecy (see [532]–[533], [207]–[214]).

(iv) At previous recent protests on similar themes, both in London and overseas, there had been serious violence, criminal damage and injuries to protesters and the police (see [187]–[192], [194]). There was a real risk, not only of damage to property, but also of serious injury and even death if the police did not effectively control the crowd and those at risk included members of the public, demonstrators and police officers (see [532], [575]).

(v) Few people attending the demonstration can have been unaware of warnings that there was a very substantial risk of serious violence (see [226], [227], which quotes from an article by the Mayor of London, Ken Livingstone, in The Evening Standard telling people not to join the demonstration, and [229]).

(vi) The difficulties on the day were the result of a deliberate and complete failure by the organisers to co-operate with the police (see [2]).

(vii) If the police were to prevent violence and the risk of injury to persons and property, they had no alternative at 2 pm but to impose an absolute cordon (see [548], [549]). The need to impose the cordon did not arise out of any negligence on the part of the police (see [576]). The decision to impose the cordon and the effective imposition of it at about 2.20 pm were proportionate responses by the police to the presence of the crowd in Oxford Circus (see [538]). By the end of the trial it was not contended on behalf of the appellants that a cordon was not needed. Their case was that the cordon was maintained for too long and that they were not permitted to leave when they asked to do so (see [539]).

(viii) The reason for imposing the cordon was to establish control over the crowd prior to and during a planned and controlled dispersal (see [20], [541], [542]).

(ix) It was not possible to impose the cordon without including Ms Austin in it (see [540]). There were operational reasons why Mr Saxby was included in the cordon (see [541], [542]).

(x) It was not practicable for the police to release the crowd collectively earlier than they did (see [543]). The release policy communicated to police officers by Bronze Commander, Chief Superintendent Allison, which was subject to the discretion of individual police officers to release individual demonstrators, was that officers should seek to identify those who obviously and clearly had nothing to do with the demonstration but were caught up in the cordon because of the unlucky chance of being at Oxford Circus. There was no release policy which could and should have been adopted other than just described, especially where, as here, the police had no opportunity to plan for the event (see [552] read with [521]–[528] and [347]–[351]). No alternative release policy was put to the police at the trial (see [344]).

(xi) The police had no intention of holding demonstrators for longer than necessary (see [341]). The object was not to hold the crowd for any reason other than to carry out a controlled release as soon as it was practical and safe to do so (see [22]).

(xii) At 2.25 pm, which was about five minutes after the cordon was imposed, Chief Superintendent Webb started to plan for, and put in place resources to facilitate, a commencement of controlled dispersal (see [359]). At 2.45 pm he expected that the release would have started within about an hour (see [378]).

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(xiii) In fact, nearer 400 than 200 people were released, many of them at about 3 pm. It is likely that a substantial number of those were demonstrators (see [554], [358]).

(xiv) The police did not expect the cordon to last as long as, in the event, it did. It was expected that the dispersal process would take about two to three hours. This was the expectation at 2 pm and at each stage up to about 6 pm, when it was reviewed (see [504]).

(xv) On a number of occasions during the afternoon Mr French, who was Silver Commander, gave the order to commence controlled release, only to find that he could not safely carry it through (see [347]). On three occasions the decision to commence controlled dispersal north had to be reviewed or suspended because of the conduct of protesters either inside or outside the contained area. They were decisions at 5.55 pm reversed at 6.15 pm, at 6.50 pm suspended at 7.20 pm and at 7.30 pm stopped shortly afterwards. The final release phase began at 8.02 pm (see [360], [374], [375]).

(xvi) About 40 per cent of the crowd were actively hostile at any given time, pushing and throwing missiles, and otherwise showing a lack of co-operation. Those not pushing or throwing missiles were not dissociating themselves from those who were (see [546]). Some members of the crowd were very violent. For example protesters broke up paving slabs and threw the debris at the police and an officer was struck by a large piece of concrete (see [366]). When officers entered the cordon to arrest a suspect or to prevent fires from spreading, there was no sign of the crowd attempting to ease the task of the police (see [366], [547]).

(xvii) If the appellants had not been controlled by and within the cordons, they would have found themselves in an increasingly disorderly situation, which most people would have regarded as less preferable (see [504]).

(xviii) The police were in part engaged in an exercise for the benefit of the crowd, to protect members of the crowd from danger from each other and from others who wished to join their number. The risks were from crushing, trampling and missile throwing, which could have been fatal. The crowd of over 1,000 at Oxford Circus needed measures to be taken to control them for their own protection (see [506]).

(xix) This was not simply a static crowd of protesters in Oxford Circus surrounded by police and held in place for seven hours. It was a dynamic, chaotic, and confusing situation in which there were also a large number of other protesters in the immediate vicinity outside the cordon who were threatening serious disorder and posing a threat to the officers both on the cordon and within it (see [2], [548]).

(xx) Although there was some breakdown of public order on May Day 2001, it was on a much smaller scale than in June 1999 or May Day 2000. There has been no similar breakdown in public order on any of the very many political demonstrations which have taken place since May Day 2001 (see [186]).

VII THE APPELLANTS’ SUMMARY

[52] We return below to the key issues between the parties on the facts or the interpretation of the facts but, as we read it, the summary of the facts found by the judge which was produced on behalf of the appellants for the purposes of the appeal is not markedly different from that set out above. The summary does, however, refer to aspects of the findings which are less critical of the

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organisers, as for example that the police assessment was that they were organising a peaceful protest but that there would be several hundred who had no part in the planning who would attend for opportunistic violence (see [199]). Although the police were not aware of a plan to gather in Oxford Circus at 2 pm, they did have a good deal of information including the fact that there was expected to be a final gathering in Oxford Circus, which the police had prepared for by putting a speaker system in place as from noon (see [264]). There was, however, no announcement to the crowd over the public address system before 4 pm (see [388]).

[53] The appellants’ summary also stresses that no directions were given by Silver Commander to implement ss 12–14 of the 1986 Act and that he authorised the use of s 60 of the Criminal Justice and Public Order Act 1994, which gives officers power to stop and search for offensive weapons or dangerous instruments. Although Silver Commander had not decided in advance that he would contain a crowd at Oxford Circus, he said that he would order containment if there was an anticipated breach of the peace (see [300]). The decision to contain the crowd at Oxford Circus was made at 2 pm by creating impermeable barriers across the four exits. The decision was made on the stated basis that Mr French had grounds to believe that the public would be subjected to violence and that there would be widespread criminality and damage. He relied on intelligence before the event and the behaviour of protesters during the morning, together with previous behaviour and criminality of protesters at similar events and the obvious fear of the public (see [299]). His main reason for taking action was the behaviour of similar crowds on previous occasions, followed by intelligence, including in particular the Special Branch assessment of likely violence and disorder (see [302]).

[54] The summary quotes the definition of containment in the amended defence as being shorthand for the tactic of placing a police cordon around large numbers of protesters in order to prevent the crowd causing serious violence and/or disorder. When the first announcement was made to the public at 4 pm, they were told that they were being contained to prevent a breach of the peace. Bronze Commander accepted that the announcement could have been made sooner, at 3.15 pm (see [372]).

[55] The summary further stresses that officers were instructed to release those who were obviously not protesters (see [521]). It also stresses the requests made by each of the appellants for release, although not before 3 pm, to officers on the cordon. As the respondent’s summary accepts, Ms Austin sought release on the ground that she had a young 11-month old baby to collect and Mr Saxby on the ground that he was not a protester. Both requests were refused, although between 200 and 400 people were released following individual requests (see [356]–[358], [487]–[489], [554]–[561]).

VIII DID THE APPELLANTS APPEAR TO BE ABOUT TO COMMIT A BREACH OF THE PEACE?

[56] The first way in which the respondent’s case is put under this head is to invite the answer ‘Yes’ to this question. It is not we think in dispute that throughout the relevant period the police reasonably thought that a breach of the peace was imminent. In any event, the judge so held and he was plainly right to do so if the question is asked by reference to elements in the crowd.

[57] The question to be asked under this head is not, however, whether a breach of the peace was about to be committed by elements in the crowd but

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whether it was about to be committed by the appellants. There was no evidence as to the state of the mind of the police with regard to the appellants. As the judge said, this is not surprising (see [518]). At [520] he referred to a submission made on behalf of the respondent that, if the police have no way of knowing who in a large group is presenting the threat, then they can detain everyone who happens to be present at the scene. He correctly rejected that submission on the basis that it must be too wide.

[58] Having so held, he expressed the view that, if the question whether it appeared to the officers detaining each appellant that each appellant was about to commit a breach of the peace was not answered in the affirmative in a way that encompassed each appellant, then the case against the appellants based on powers to prevent a breach of the peace must fail (see [520]). The judge then said (at [521]):

‘The nearest Chief Superintendent Allison comes to the point is in his witness statement where he says:

“I spoke to all the Chief Inspectors to ensure, amongst other things, those not involved in the demonstrations were being allowed out of the cordon. The importance of this activity had been recognised throughout the planning process for this operation and built on the lessons learnt when we had used this tactic in the past. The Chief Inspectors indicated that this was being done. I fully accept that this was a very difficult task and required the officers to make on the spot judgments. I was not asking officers to differentiate between violent and non-violent protesters but asking them to identify for release those individuals who obviously and clearly had nothing to do with the demonstration. Such individuals would have been at Oxford Circus by chance when the containment was put in place and so became caught up in it.”’

The judge does not give a time for this but Mr Allison’s witness statement suggests that it was between about 2.30 pm and 3.40 pm. It is clear from that evidence that the police were aware that there were those in the crowd who were not demonstrators.

[59] The judge discussed the evidence of the police witnesses and expressed his conclusions in some detail (see [521]–[530]). It was not their evidence that they suspected every member of the crowd of being someone who would commit the breach of the peace which they thought likely to occur. The judge however accepted the evidence that the police thought that individuals might be peaceful at one time but threaten or provoke violence at another (see [524], [525]). The judge held (at [526]) that the position could be similar to that which applies in cases where only one person is suspected of having committed an offence, but the police suspect that any of a number of persons who had the opportunity to commit it might be the guilty one. The police are not prevented from arresting more than one suspect. They may arrest all the suspects, assuming that other necessary conditions are fulfilled. He said that an alternative way of putting the case for the police might be that Chief Superintendent Allison and others were applying the right test and considered that all those who appeared to be demonstrators satisfied it (see [528]).

[60] He expressed his conclusion thus (at [529]):

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‘In the end, and with considerable hesitation, I infer and find that, subject to personal matters which might have arisen for consideration when each claimant came forward and asked to be released, it did appear to the police (that is the police did suspect) that all those present within the cordon, including each claimant, were demonstrators, and that in the particular circumstances of this case, that meant that they also appeared to the police to be about to commit that breach of the peace.’

[61] Mr Starmer submits that that conclusion was wrong, both on the facts and in law. We agree. First, it is inconsistent with the judge’s account of Mr Allison’s evidence quoted at [521] and set out above because that shows that the police recognised that not everyone in the crowd was a demonstrator. Secondly, it seems to us to be plain that the judge was not holding that the police thought that a breach of the peace on the part of all those present was imminent when they imposed the cordon. The highest it could be put was that the police could not say who was likely to cause a breach of the peace and who was not. The police were aware that there were those in the crowd who would not cause a breach of the peace. Some, like Mr Saxby, were not even there to demonstrate. The problem facing the police was that they did not know who they were. In these circumstances it is in our opinion wrong to say that everyone in the crowd was a suspect. Some were not. In these circumstances we do not think that the police would have been entitled to arrest everyone, whether a suspect or not.

[62] For these reasons we reject Mr Pannick’s submissions under this head and answer the question whether these appellants appeared to be about to commit a breach of the peace in the negative. As we see it, the key to this case lies in the answer to the next question.

IX IF THE APPELLANTS DID NOT APPEAR TO BE ABOUT TO COMMIT A BREACH OF THE PEACE, WAS THEIR CONTAINMENT LAWFUL?

[63] The judge held that the answer to this question was ‘No’. He did so on the basis to which we have already referred, namely that, unless the question whether a particular appellant was about to commit a breach of the peace was answered in the affirmative, the case against that appellant based on powers to prevent a breach of the peace must fail (see [520]).

[64] Mr Pannick nevertheless invites an affirmative answer to this question. He does so on the basis of the obiter reasoning in R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 All ER 529, [2007] 2 AC 105 discussed above, which was not of course available to the judge. He submits that on the judge’s findings of fact a breach of the peace was reasonably thought by the police to be imminent, that the police had taken all the steps which they possibly could to avoid a breach of the peace by those likely to cause it by arrest or other action directed at them and that, in all the circumstances, if a breach of the peace was to be avoided, there was no alternative but to contain everyone within a police cordon. As to release, no alternative strategy was possible, or indeed suggested, other than that adopted by the police and, in these circumstances, the containment of some innocent people such as the appellants was inevitable and lawful in accordance with the principles discussed earlier and summarised at [35], above. In short, Mr Pannick submits that, on the findings of fact made by the judge, the situation was wholly exceptional and that the police had no alternative but to

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do what they did in order to avoid the imminent risk of serious violence, with its consequent risk of serious injury and perhaps death, quite apart from damage to property.

[65] Mr Pannick thus submits that on the facts found by the judge this was an example of the kind of case referred to by Law C in O’Kelly v Harvey (1883) 14 LR Ir 105. In order to avoid an imminent breach of the peace by others, the police had no alternative but to ask all those in Oxford Circus to remain inside the police cordon, which they did first by imposing the cordon and then by informing them that that was the position. They had no alternative but to treat all those present in the same way. If anyone had refused to comply with their directions, the police would have been entitled to arrest him or her.

[66] In response Mr Starmer submits that the majority of people were neither committing a breach of the peace nor threatening to do so and were peaceful throughout. He further submits that the length of the containment of over seven hours was excessive and that the appellants could and should have been released much earlier than they were. As we see it, the difficulty with this submission is that the judge held that containment was necessary because there was no means by which the serious risk of serious injury could have been avoided, other than by the imposition of the cordon and the release policy subsequently adopted by the police. As to the latter, the judge found that it was not practicable for the police to release the crowd collectively earlier than they did and there was no release policy which could and should have been adopted other than that described above, especially given the lack of opportunity which the police had had to formulate a plan (see [2005] All ER (D) 402 at [543] and [552], read with [521]–[528] and [347]–[351]). As already stated, none was formulated or put to the officers at the trial (see [344]).

[67] While we see the force of the points made by Mr Starmer, especially his point that the containment of the crowd for hours without any or any sufficient toilet facilities and in many cases without food or drink was intolerable, with consequent risk to the health and safety of innocent members of the public, and we can well understand that being in Oxford Circus for so long without any idea when one would be released would have been very unpleasant, we see no realistic alternative but to accept Mr Pannick’s submission in response. It is that the judge properly held that the police could not reasonably have foreseen what happened or that it would have been necessary to have contained people for so long. The judge held that the police took action to avoid or minimise the risk of crushing (see [371], [376]).

[68] For these reasons, we conclude that in this very exceptional case, on the basis of the judge’s finding that what the police did in containing the crowd was necessary in order to avoid an imminent breach of the peace, the actions of the police were lawful at common law in accordance with the principles discussed above. On that basis, we answer the question whether the containment was lawful in the affirmative, even though the police did not reasonably suspect that the individual appellants were about to commit a breach of the peace. In our judgment that was the case, both when the cordon was imposed at about 2.20 pm and throughout the time the cordon was maintained. On the judge’s findings of fact, the conditions of necessity remained throughout because no one had or has suggested an alternative release policy.

[69] As to the release of individuals, the policy itself, which was to leave it to the discretion of individual police officers to decide whether a particular

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individual (in the words of Chief Superintendent Allison quoted above) obviously and clearly had nothing to do with the demonstration was rational, indeed sensible. On the judge’s findings of fact the police were faced with an unprecedented situation and we accept the submission that it was not practical to give the individual officer a wider discretion (see [348]–[351]). In short, in the particular circumstances of 1 May 2001, it was necessary to adopt the policy in fact adopted.

[70] There was some debate in the course of the argument as to the incidence of the burden of proof. It was in our view for the police to show that it was necessary to adopt the policy which they did but, once that was established (as in our opinion it was), it was for each appellant to show that the individual police officer acted unreasonably in a Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223) in refusing to release him or her. That approach seems to be to be consistent with the approach of this court in a similar (but admittedly not identical) context in Al Fayed v Metropolitan Police Comr [2004] EWCA Civ 1579, [2004] All ER (D) 391 (Nov), per Auld LJ, with whom Tuckey LJ and Jackson J agreed (at [42], [83]).

[71] On the facts relating to these appellants there is no reason to think that the individual police officers acted other than in good faith and reasonably in a Wednesbury sense. The judge spelled out the evidence of both Ms Austin and Mr Saxby in some detail (see [424]–[461], [474]–[497]). As those accounts show, although the judge accepted much of their evidence he did not find that either appellant was entirely credible. As to Ms Austin, although there is no evidence that Ms Austin acted violently at any stage, the judge held that she played an active part in the demonstration and that the refusal to release her was not unreasonable or irrational, whether applying an ordinary or heightened Wednesbury test: see the judge’s detailed analysis of her evidence and his conclusions at [424]–[461], [471]–[473] and at [553]–[559] respectively. As to Mr Saxby, there were good reasons to include those in the same position as Mr Saxby in the cordon (see [541], [542]) and there is no basis for concluding that thereafter the police behaved unreasonably or irrationally in refusing to release him on an individual basis.

[72] These were essentially matters for the judge, who had the great advantage of hearing and considering a great volume of evidence, and it would in our opinion be wrong for this court to interfere with his conclusions in this regard. Based on the reasoning in Laporte’s case, we answer the question posed in this section by holding that, on the facts found, although the appellants themselves did not appear to be about to commit a breach of the peace, their containment was lawful because it was necessary to prevent an imminent breach of the peace by others.

X CONCLUSION ON FALSE IMPRISONMENT

[73] It follows that we would dismiss the appeal in so far as it rests on the tort of false imprisonment. It also follows that it is unnecessary to consider the question whether the respondent’s actions were unlawful under the 1986 Act. Those conclusions are, however, subject to the appellants’ case under art 5 of the convention.

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XI THE 1986 ACT

[74] In these circumstances it is unnecessary to say much about the 1986 Act. The judge set out or referred to its relevant provisions, notably ss 11–14, at [86], [87]. Because it is not necessary to resolve any of the issues between the parties under these sections we do not think that it is necessary to set out the statutory provisions in this already lengthy judgment. We only refer to the 1986 Act at all for two reasons. The first is that we are concerned that, if we do not, it may be thought that we would have reached the same conclusion as the judge and the second is to highlight the fact that, at any rate as it seems to us, the exceptional circumstances of this case suggest that ss 12–14 of the 1986 Act require further consideration and perhaps amendment for the future.

[75] The respondent’s reliance upon the 1986 Act had a curious history. The police did not purport to rely upon any of its provisions at the time. Moreover, no reliance was placed upon the 1986 Act in the defence or indeed at the trial until the judge invited submissions to be made on the police powers under ss 11–14. None of the officers present had claimed to be acting under them (see [88]).

[76] The judge nevertheless held that the respondent could rely upon ss 12 and 14 of the 1986 Act, even if they did not have them in mind or purport to be exercising their powers under them (see [98]). He also held that s 12 includes a power to bring a procession to an end (see [91]), that s 14 includes a power to direct an assembly to disperse along a particular route and to stay in a particular place so long as necessary to effect that dispersal (see [95]) and that such conditions can be imposed as a result of the acts of others (see [96]).

[77] On the facts, the judge found that a public procession or assembly was being held at Oxford Circus (see [567]) and that at the relevant time the relevant police officers reasonably believed the facts necessary to fulfil conditions (1)(a) in each of ss 12 and 14 were present (see [568]). He held that the officers gave directions pursuant to the 1986 Act and that it was immaterial that they did not have the provisions of the Act in mind (see [569], [570]). The judge further held that the directions given imposed conditions prohibiting the procession from entering any public place specified in the directions, including conditions as to the route of the procession, and as to the place at which the assembly might continue to be held, its maximum duration, or the maximum number of persons who might constitute it. He did so on the basis that the directions were not to proceed west, east or south from Oxford Circus, but only north, and then only subject to a controlled dispersal, and to remain in Oxford Circus for such period as might be necessary to enable the controlled dispersal to take place safely and consistently with the fulfilment of the purpose for which the direction was given (see [571]).

[78] Mr Starmer submits, among other things, that, assuming that there was ever a procession (which he does not accept), the purpose of the directions was not to control the procession but to bring it to an end by containing those taking part and gradually releasing them. He submits that s 13 is concerned with prohibiting public processions, whereas s 12 is not. He further submits that it is a misnomer to describe those in Oxford Circus, at any rate from the moment of containment, as taking part in a procession. If anything, they were taking part in an assembly.

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[79] As to s 14, which confers powers in the case of an assembly and not a procession, Mr Starmer submits that it does not empower the police to ban an assembly but merely, by s 14(1) to—

‘give directions imposing on the persons . . . taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.’

He submits that the directions given here, namely to stay in one place and then disperse when instructed to do so, were not directions in relation to the continuing of the assembly but as to its ordered dispersal. He further submits that there is nothing in s 14 which permits a police officer to stop a person ceasing to take part in the assembly, which was the essence of the direction on 1 May 2001.

[80] There appears to us to be at least some force in those submissions. We are also concerned about a further point made by Mr Starmer. As we understand it, the possibility of reliance upon ss 12 and 14 of the 1986 Act was raised by the judge after the end of the evidence; so that it did not form part of the evidence given by any of the police officers, except to the very limited extent set out in paras 172–175 of the appellants’ revised skeleton argument for this court. It is there submitted that the respondent’s case was that the exercise of the senior officer’s powers under ss 12 and 14 was consciously considered but rejected. Instead the police exercised their breach of the peace powers. In his witness statement Mr French said (at para 19) that ‘it was agreed that any implementation of . . . sections 12/14 Public Order Act as a tactical option could only be done on my directions’. No such directions were given.

[81] In these circumstances Mr Starmer submits that it could not fairly be held that the relevant officer exercised his powers under the 1986 Act. That submission too has some force. We do not know why Mr French did not purport to exercise his powers under s 12 or s 14. He may have had a good reason for not doing so.

[82] In all these circumstances, we would be reluctant to embark on a detailed analysis of this part of the case unless it were necessary to do so, which it is not. We will only say that we are not at present persuaded that the judge was correct to hold that the powers exercised by the police were lawful because they were exercised or can be treated as exercised under the 1986 Act.

[83] It does seem to us that, whatever the strict position as a matter of law, the police should consider their statutory powers in a case of this kind and decide whether or not to exercise them. If they decide to exercise them, it is at least desirable to make it clear that they are doing so, especially since (for example) ss 12(4) and (5) and 14(4) and (5) contain penal sanctions for knowing failure to comply with directions given under them.

[84] Finally, we would add that the debate in this case, both of the common law position discussed in Laporte’s case and of the provisions of the 1986 Act has highlighted the desirability of a thorough consideration of this area of the law in order to see whether it would be possible to make clear provisions appropriate to cover a case of this kind in the future.

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XII ARTICLE 5 OF THE CONVENTION

[85] Article 5 of the convention provides, so far as relevant:

‘Article 5_Right to liberty and security

1. 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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition . . .

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.’

[86] The appellants’ case is that their containment amounted to a deprivation of liberty within the meaning of art 5(1). The judge held that they were indeed deprived of their liberty under art 5(1) but that the case falls within the exception in art 5(1)(c) so that the deprivation of liberty was not unlawful. The respondent challenges his decision on the first point, whereas the appellants challenge his decision on the second point. The respondent submits in the alternative that the case falls within the exception in art 5(1)(b). Indeed Mr Pannick puts his reliance upon art 5(1)(b) ahead of his reliance upon art 5(1)(c). We will consider each of these points in turn, although we say at once that we have granted the respondent permission to amend his respondent’s notice to rely upon para (b) because the point was argued before us and the appellants have suffered no prejudice by the fact that the point was taken at a late stage.

XIII DEPRIVATION OF LIBERTY UNDER ARTICLE 5(1)

[87] The judge considered the distinction between the meaning of false imprisonment in the tort of that name and the meaning of deprivation of liberty in art 5: see [42], [43], where he noted that, as was pointed out in Ex p L [1998] 3 All ER 289, [1999] 1 AC 458 when the case reached Strasbourg (HL v UK

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(2004) 17 BHRC 418), the two meanings are not the same. He also observed that it is possible for there to be a deprivation of liberty without false imprisonment and vice versa (see [45]. See also [46]–[48]).

[88] The judge discussed the deprivation of liberty in art 5(1) at [56]–[72] and [501]–[512]. He correctly observed that the Strasbourg cases have drawn a distinction between a restriction of liberty of movement on the one hand and a deprivation of liberty on the other: see eg Guzzardi v Italy (1980) 3 EHRR 333, to which the judge referred in his quotation from HL v UK (see [2005] All ER (D) 402 at [43]). Guzzardi v Italy is an important case because it emphasises (at 362–363 (paras 92, 93)) that mere restrictions on liberty are governed by art 2 of Protocol 4, not by art 5 of the convention, and that the difference between the two is ‘merely one of degree or intensity, and not one of nature or substance’.

[89] It is important to note that the United Kingdom has not ratified art 2 of Protocol 4. Nor are its provisions part of the 1998 Act or any other statute. They are not part of the law of England and Wales. The question for the judge was whether there was a deprivation of the appellants’ liberty, in which case art 5(1) applies (subject to its exceptions), or there was not, in which case the appellants do not have the protection either of the convention or of any statute. They do of course have the protection of the common law but, for the reasons given above, the respondent has a defence because of the judge’s findings that the action taken by the police was necessary.

[90] The judge concluded that, subject to what he called consideration of other factors, there was in principle a deprivation of liberty of each person within the cordon from about 2.20 pm until he or she was permitted to leave because no-one was permitted to leave without permission (see [502]). He considered the other factors in the succeeding paragraphs as follows:

(i) The duration of the detention was never expected to be the seven or so hours it turned out to be. What was expected, both initially and up to about 6 pm, was a detention that was likely to last some two or three hours at most. ‘The expectation became correct at about 6 pm’, by which we think the judge meant that it did then in fact take some three hours or so before everyone was released. In the meantime there was close confinement in Oxford Circus, with minimal liberty. Its effects were severe, as described elsewhere in the judgment (and referred to above). On the other hand, had those confined not been detained as they were, they would probably have found themselves in an increasingly disorderly situation, with one or two thousand other people converging upon them in Oxford Circus over the subsequent two hours. Those considerations (said the judge) pointed towards the detention being a deprivation of liberty, rather than a restriction, albeit a deprivation which most people would regard as preferable to the likely alternative situation (see [504]).

(ii) The police intended, not merely to detain the crowd, but to prevent crime and to ensure the safety of persons, the preservation of property in Oxford Street and the protection of other rights of third parties. They also intended to segregate some members of the crowd from others, if appropriate by asking them questions, or by searching them pursuant to s 60 of the 1994 Act (see [505]).

(iii) The police were also engaged in an exercise for the benefit of those in the crowd, to protect the members of the crowd from danger from each other, and from others who wished to join their number. The main risks were from crushing and trampling, but there were also risks from missile throwing. Missiles

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aimed at the police were likely to miss and to hit other members of the crowd, which could be fatal to an unprotected member of the crowd. This crowd of over 1,000 in the middle of a major London crossroads needed measures to be taken to control them for their own protection (see [506]).

(iv) Any measure of controlled release was bound to have taken a considerable time before all the crowd were released. It was impossible to say how long it would have taken, if there had been no searches or evidence gathering. If a release was to be combined with searches and evidence gathering, it was bound to take as long as this one took from the time it restarted at 7.30 pm, that is about one to two hours at least (see [508]).

(v) If the only reason why the police detained the crowd had been to take such temporary measures for the protection of the members of the crowd themselves, the judge would have concluded that this was not a deprivation of liberty within the meaning of art 5(1), but that it was a restriction of liberty; the case would be similar to Guenat v Switzerland (1995) 81-A DR 130 (see [510]). He added in this regard, also in [510]:

‘. . . The police owe common law duties of care [to] a crowd for whom they have taken, or should take, control. This is the duty of care to prevent death or physical injury, which was admitted in the Hillsborough litigation. It is also the positive obligation recognised in Osman v UK (1998) 5 BHRC 293. If the police are to fulfil such duties effectively, it must follow that they have the powers necessary to enable them to do so, and that these powers should exist where there can be no question of intending to take the detainees before a judge. Necessary powers must include the power to use reasonable force to ensure that members of a crowd stay where the police reasonably require them to stay for as long as is necessary to allow them to disperse safely.’

(vi) If the police had been intending to question or search members of the crowd, if they thought appropriate, before deciding whether to arrest anyone, it would have been open to the judge to hold that there was no deprivation of liberty, on the basis that the case would then have been similar to X v Germany (1981) 24 DR 158, although he also said that he found the principle in X v Germany difficult to discern (see [511]).

(vii) The judge distinguished R (on the application of Gillan) v Metropolitan Police Comr [2006] UKHL 12, [2006] 4 All ER 1041, [2006] 2 AC 307, in which the House of Lords held that a person stopped under police stop and search powers in ss 44–47 of the Terrorism Act 2000 was not deprived of his liberty within art 5(1), principally on the ground that the whole process lasted only a few minutes. He added that the principle of proportionality may allow more latitude in a terrorist case than in a public order case, even as bad a case as this one (see [511]).

[91] In a later section of his judgment, when he was discussing the issue of damages, the judge said this in a passage which seems to us to be of some relevance to the issue whether there was a deprivation of liberty and is to be contrasted with what he said in the paragraphs to which we have just referred:

‘[594] Fortunately the consequences of MD01 [ie 1 May 2001] to the claimants did not include any injury. What happened to these claimants on MD01 is comparable in gravity to what happens to many people when a flight is cancelled at holiday time, by reason of a strike or some other such event. It is also comparable to what happens when there has been an

Page 593 of [2008] 1 All ER 564

accident on the motorway, and the police bring all traffic to a halt to enable the injured to be evacuated and the wrecks to be removed. This can create long jams behind the police barrier. Commander Allison in evidence drew on this as analogy. In that situation also, when the time comes to remove the barrier, the police control the rate at which the traffic starts to move again, in order to avoid the dangers of an uncontrolled release. Those sorts of delay can last as long, or longer, than seven hours. The conditions can be very bad, and may include the need to provide for small children. There would probably be functioning toilets in an airport case, and some food and drink. But the delay in an airport is commonly much longer than seven hours. The similarity is that in each case the victim is in a place he or she has chosen to go, knowing that there can be risks of discomfort involved, if not necessarily the risks that actually occur. Neither claimant here appreciated there was a risk of containment, whether for seven hours or at all. But that there were risks from the violent elements in the crowd was known to Ms Austin, and must have been obvious, even to Mr Saxby, who had not seen anything in the papers or on TV.’

It is also we think important to have in mind when considering this part of the case the judge’s critical finding (at [548], [549]) that, if the police were to prevent violence and the risk of injury to persons and property, they had no alternative at 2 pm (when the decision was made) but to impose an absolute cordon.

[92] Mr Pannick submits that the judge erred in principle in reaching the conclusion that the appellants were deprived of their liberty within the meaning of art 5(1). He submits that, applying the principles in the Strasbourg jurisprudence, he should have held that there was here an interference with their liberty of movement but not a deprivation of their liberty. Mr Starmer, on the other hand supports the decision and reasoning of the judge.

[93] Mr Pannick submits that it would be surprising if the respondent infringed the appellants’ rights under art 5 in a case where the judge has held that it was necessary for the police to take the steps they did. We agree. We accept Mr Pannick’s submission that there are a number of considerations which support this conclusion, as follows: (i) The ECtHR has stressed that one of the purposes of the convention is to secure a ‘fair balance’ between ‘the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’ (see Sporrong v Sweden (1982) 5 EHRR 35 at 52 (para 69), which was cited with approval by Lord Bingham in Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 at 115, [2003] 1 AC 681 at 704. See also eg Brogan v UK (1988) 11 EHRR 117 at 129 (para 48). (ii) On the particular facts of this case a fair balance would in our judgment have led to the conclusion that the necessary steps taken by the police were lawful. (iii) The considerations identified by Lord Rodger, Lord Brown and Lord Mance in Laporte’s case, which are referred to at [38]–[43], above, support this approach. In particular Lord Brown expressly noted at [127] of Laporte’s case (see [39], above) that both arts 10(2) and 11(2) provide in terms for interference with the protective rights if this is necessary for the prevention of disorder or crime. Moreover, as we said at [42], above, it seems to us that Lord Mance recognised the general approach of the ECtHR as protecting the rights of peaceful demonstrators described in [144] but subject to permitting preventive action against an innocent person where it is reasonably apprehended that there is no other possible means of avoiding an imminent breach of the peace. (iv) Although the House of Lords was not

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considering art 5 in Laporte’s case, it does seem to us that it would be surprising if the ECtHR did not approach that article with similar principles in mind. This is especially so since, as Mr Pannick submits, its approach to every case is pragmatic and fact-sensitive: see eg Gillan’s case [2006] 4 All ER 1041 at [23], [2006] 2 AC 307 per Lord Bingham, R v Spear, R v Boyd, R v Smith [2002] UKHL 31 at [66], [2002] 3 All ER 1074 at [66], [2003] 1 AC 734 per Lord Rodger and Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 at 115, [2003] 1 AC 681 at 704 per Lord Bingham.

[94] It is we think important to note that these considerations do not by themselves necessarily answer the question how each of the provisions of art 5 should be construed. The appropriate balance could be met by concluding that there was here no deprivation of the appellants’ liberty under art 5(1), or by holding that there was a deprivation of their liberty but either that it was lawful in order to secure the fulfilment of an obligation prescribed by law within art 5(1)(b) or was within art 5(1)(c). Because of its general approach, it does seem to us that, if the ECtHR were to hold that there was a deprivation of the appellants’ liberty, it would be inclined to hold that para (b) or (c) applied in order to ensure that the balance enshrined in the purpose of the convention was maintained. We stress that we are here concerned with a most unusual case on the facts, in which the judge has held that the police had no real alternative to doing what they did.

[95] We return to deprivation of the appellants’ liberty. In Guzzardi v Italy (1980) 3 EHRR 333 the ECtHR said (at 362–363 (para 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 . . . 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.’

The key point is that art 5(1) was intended to avoid arbitrary detention.

[96] The distinction between deprivation of liberty in art 5(1) of the convention and restriction on movement in art 2 of Protocol 4 is of some importance. In this court in R (on the application of Gillan) v Metropolitan Police Comr [2004] EWCA Civ 1067, [2005] 1 All ER 970, [2005] QB 388, Lord Woolf CJ, giving the judgment of the court, which comprised himself and Buxton and Arden LJJ, said (at [43]) that it agreed with the view expressed by Sir Gerald Fitzmaurice in a dissenting opinion in Guzzardi v Italy (1980) 3 EHRR 333 the ECtHR said (at 378–379 (para 6)) that the ambit of art 5 should be construed strictly. After comparing the provisions of the Protocol and the convention he said:

‘. . . The resulting picture is that Article 5 of the Convention guaranteed the individual against illegitimate imprisonment, or confinement so close as to amount to the same thing—in sum against deprivation of liberty

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stricto sensu—but it afforded no guarantee against restrictions . . . falling short of that.’

It must be borne in mind that Sir Gerald was dissenting but so too must the distinction between the two concepts, however difficult the distinction is to make on the facts of a particular case (see Gillan’s case in this court [2005] 1 All ER 970 at [38]).

[97] The duration of the detention is of course an important factor but Guzzardi v Italy and the other cases show that it is only one of a number of factors. In Gillan’s case ([2005] 1 All ER 970 at [41]) this court approved the statement in Lester and Pannick Human Rights Law and Practice (2nd edn, 2004) p 164 (para 4.5.4), that ‘Detention does, however, depend upon the intention of the authorities’. It referred to X v Germany (1981) 24 DR 158, where the Commission held that a ten-year-old girl who was questioned at a police station for two hours without being arrested, locked up in a cell or formally detained was not deprived of her liberty within art 5 in circumstances in which the police action was ‘simply to obtain information from those involved’. That case was, however, much more relevant to the stop and search case being considered in Gillan’s case than to the instant case.

[98] A better example for present purposes is perhaps HM v Switzerland [2002] ECHR 39187/98, which was a decision of the ECtHR made on 26 February 2002. The court held that there was no deprivation of liberty when the applicant was placed in a nursing home, from which she was not allowed to leave, in her own interests because she could not look after herself. The court concluded (at para 48) that—

‘in the circumstances of the present case the applicant’s placement in the foster home did not amount to a deprivation of liberty . . . but was a responsible measure taken by the competent authorities in the applicant’s interests.’

It is fair to say that that was only one of the factors that the court took into account but the case does show the potential importance of such a consideration. We note in passing that, although the decision in HM v Switzerland was distinguished in HL v UK (2004) 17 BHRC 418, the ECtHR did not disagree with the principle.

[99] Each case must of course be decided on its own facts. While it is true that HM v Switzerland is different from the instant case because the nature of the confinement was quite different, it does show that the interests of the alleged detainees are potentially important and one of the factors to be taken into account. Here, as the judge held, one of the purposes of the police was to protect the individuals in the crowd from the consequences of violence (see eg [504]).

[100] We recognise that the exercise of deciding whether on the facts of a particular case a person has been deprived of his or her liberty is essentially a matter for the trial judge, who must weigh a number of different factors in the balance. It follows that an appellate court should not interfere with his or her decision merely because it would have struck the balance differently. It should only interfere if persuaded that the judge erred in principle or reached a decision which was plainly wrong in the sense that it was outside the range of decisions that a reasonable judge could reach.

[101] In the instant case we are persuaded that the judge erred in principle in reaching the conclusion that he did. As we read his judgment, he first concluded

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that, as from 2.20 pm when the cordon was imposed until each appellant was released, the detention was sufficient physically to amount to deprivation of liberty. Since he correctly recognised that on the authorities it was necessary to consider a whole series of factors, he then considered those. He decided that some pointed one way and some another and ultimately concluded that they did not outweigh his conclusion based on the physical conditions. It follows, as we see it, that he held that the appellants were each deprived of their liberty from the time that the cordon was imposed. As we read his judgment, he did not find that the appellants were not deprived of their liberty when the cordon was imposed but that they were deprived of it some time later. He certainly did not find that they were only deprived of their liberty when they sought and were refused permission to leave.

[102] On this basis the first question is whether the appellants were deprived of their liberty from the outset. In our opinion they plainly were not. The position at that time was not markedly different in terms of detention from a number of different types of confinement or detention to which the judge referred which would not be regarded as a deprivation of liberty within art 5(1). A good example is perhaps a football crowd. It is commonplace for such a crowd to be contained for what may turn out to be quite long periods, partly for the protection of individuals in the crowd and partly (in some cases) to avoid crowd violence, perhaps as between groups of opposing supporters (see eg [510]). Other examples would be those envisaged by the judge at [594], as for example where motorists are unable to leave a motorway, perhaps for many hours, because of police action following an accident. In such cases it may be necessary for police to confine individuals in particular areas for what may be much longer than originally intended.

[103] In our opinion this was plainly such a case. On the judge’s findings of fact, the police had no alternative but to impose the cordon which they did. They anticipated orderly release over two or three hours in order to avoid violence. The judge identified their various purposes, which included safety and the prevention of crime by individuals in the crowd many of whom could not be identified. In these circumstances the original imposition of the cordon could not, in our judgment, properly be regarded as the kind of arbitrary detention which the Strasbourg authorities would describe as deprivation of liberty within the meaning of art 5(1). For these reasons we hold that the judge erred in principle in concluding that the appellants were unlawfully detained as from 2.20 pm.

[104] On that basis, it is for us to consider afresh the remaining question, namely whether they were unlawfully detained thereafter. In our judgment the answer to that question is ‘No’. So for example, as summarised at [51](xv)–(xix), above, on a number of occasions during the afternoon the police gave the order to commence controlled release, only to find that they could not safely carry it through (see [2005] All ER (D) 402 at [347]). On three occasions the decision to commence controlled dispersal north had to be reviewed or suspended because of the conduct of protesters either inside or outside the contained area, with the result that the final release phase did not begin until 8.02 pm (see [360], [374], [375]). During the whole period there was very considerable violence, although not it must be stressed by the appellants (see [366], [546], [547]). If the appellants had not been controlled by and within the cordons, they would have found themselves in an increasingly disorderly situation, which most people would

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have regarded as less preferable (see [504]). The police were in part engaged in an exercise for the benefit of the crowd, to protect members of the crowd from danger from each other and from others who wished to join their number. The risks were from crushing, trampling and missile throwing, which could have been fatal. The crowd of over 1,000 at Oxford Circus needed measures to be taken to control them for their own protection (see [506]). As the judge concluded (at [2], [548]), this was not simply a static crowd of protesters in Oxford Circus surrounded by police and held in place for seven hours. It was a dynamic, chaotic, and confusing situation in which there were also a large number of other protesters in the immediate vicinity outside the cordon who were threatening serious disorder and posing a threat to the officers both on the cordon and within it.

[105] In these circumstances it could not sensibly be held that there came a time in which what was originally something less than a deprivation of liberty subsequently became a deprivation of liberty within the meaning of art 5(1) of the convention. We therefore hold, contrary to the conclusion of the judge, that, if all the relevant circumstances are taken into account, there was not here the kind of arbitrary deprivation of liberty contemplated by the convention.

[106] It appears to us that this approach has proper regard to the fair balance to which we referred above and, indeed to the principle that, where the convention imposes an absolute prohibition, the scope of the absolute prohibition should be defined by reference to proportionality: see eg in a different context Soering v UK (1989) 11 EHRR 439 at 474 (para 104).

[107] It follows that we conclude that the appellants’ rights under the convention were not infringed and that, given our earlier conclusion that the respondent has a good defence to the appellants’ claim for damages for false imprisonment at common law, we dismiss the appeal. However, we should briefly refer to art 5(1)(b) and (c) of the convention, which were much debated in argument.

XIV ARTICLE 5(1)(b)

[108] Mr Pannick submits that, if the appellants were deprived of their liberty within art 5(1), the respondent has a defence because the detention was lawful ‘in order to secure the fulfilment of any obligation prescribed by law’ within art 5(1)(b). As already explained, this point was not put before the judge. It has arisen because of the principles identified obiter in Laporte’s case, which we have already discussed in some detail. Mr Pannick submits that the ‘obligation prescribed by law’ is the obligation stated in O’Kelly v Harvey (1883) 14 LR Ir 105 and Laporte’s case to assist the police in preventing an imminent breach of the peace.

[109] Mr Starmer submits, to the contrary, that decisions of the ECtHR and of the Commission establish that, for an obligation to be relevant under art 5(1)(b) it must be concrete and specific, and it must be one which the person in question has already failed to fulfil at the time when action is taken which has to be justified under art 5. He suggests that Mr Pannick’s argument is circular, in seeking to justify a deprivation of liberty (if that is what it was) by reference to an obligation to submit to that deprivation. He relies in particular on Engel v Netherlands (1976) 1 EHRR 647 at 672–673 (para 69) and Guzzardi v Italy (1980) 3 EHRR 333 at 367–368 at the end of para 102. He points out the Commission’s comment, in McVeigh v UK (1983) 5 EHRR 71 at 93 (para 176): ‘The obligation in question

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cannot, in particular, consist in substance merely of an obligation to submit to detention.' According to his submission, for the police to be able to justify a cordon such as was used in the present case by reference to an obligation to comply with the request, or direction, to remain within the cordon, would open the way to the sort of conduct, incompatible with the spirit of the convention, against which the court warned in Engel v Netherlands and Guzzardi v Italy.

[110] We see some force in that submission, although Mr Pannick is entitled to make the point that O’Kelly v Harvey and Laporte’s case show that in the circumstances found by the judge, namely that (as explained in detail above) the police had no alternative but to do what they did, it was the legal duty of the appellants to comply with the request to stay within the cordon, and to argue that the police put the physical cordon in place in order to enforce the obligation to stay within it. Since it is not necessary, on the basis of our decision that there was no deprivation of liberty, to decide whether, if there had been, it would have been justified under art 5(1)(b), we prefer not to do so, and to leave that question to another day, and to a case in which it has to be decided.

XV ARTICLE 5(1)(c)

[111] It will be recalled that art 5(1)(c) excludes the following cases:

‘the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so . . .’

[112] The judge concluded that, on the true construction of art 5(1)(c), detention of a person when it was considered necessary to prevent him from committing an offence was only lawful if the detention was for the purpose of bringing him before the competent legal authority. In reaching that conclusion (at [73], [74]), the judge naturally relied upon the decision of the ECtHR in Lawless v Ireland (No 3) (1961) 1 EHRR 15, where the court said (at 27–28 (para 14)) that the phrase ‘for the purpose of bringing him before the competent legal authority’ did not just apply to the phrase ‘on reasonable suspicion of having committed an offence’ but to all parts of art 5(1)(c) including ‘when it is reasonably considered necessary to prevent his committing an offence’.

[113] Mr Pannick submits that that reasoning is wrong and that this court should not follow it. He submits that the reasoning is unsound and that, although the court should ordinarily follow a decision of the ECtHR, in such a case it should not. He refers to Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26, [2007] 1 All ER 113, [2007] 1 AC 270, per Lord Bingham for the appellate committee (at [18]). He also refers to a number of other cases.

[114] In submitting that the reasoning in Lawless v Ireland is wrong he relies, among a number of other considerations, upon the language of the paragraph, upon what he says is the unconvincing nature of the reasoning in the judgment in Lawless v Ireland, upon the view expressed by May LJ in the Divisional Court in Laporte’s case [2004] EWHC 253 (Admin) at [27], [2004] 2 All ER 874 at [27], that the opinion of the ECtHR was ‘[c]ontrary to [his] personal inclination as to the syntax’ and upon what he says are good reasons for construing the paragraph differently.

Page 599 of [2008] 1 All ER 564

[115] There is undoubted force in Mr Pannick’s submissions but there are arguments the other way, quite apart from the decision and reasoning in Lawless v Ireland. For example, there is good reason why detention of a person should only be lawful to ‘prevent his . . . fleeing after having [committed an offence]’ if the detention is ‘for the purpose of bringing him before the legal authority’. Yet the syntax shows that that purpose requirement must either relate to all three parts of the paragraph or only the first. It cannot relate only to the first and third. Further Mr Starmer relies upon a number of later decisions of the ECtHR which he says follow Lawless v Ireland.

[116] It appears to us that this important point should only be decided in a case in which the decision is essential to the determination of an appeal. By then, the ECtHR may itself have had an opportunity to express a view and to decide whether it wishes to depart from its previous decision, as it sometimes does. In all the circumstances we do not think that it is necessary or appropriate for us further to lengthen this already long judgment by analysing the point in detail and expressing a view upon it in a case where it is not necessary to do so.

[117] We should perhaps add this with regard to art 5(1)(c). The basis of the case that the police were entitled to deprive the appellants of their liberty under that paragraph is that, in each case, ‘it was reasonably considered necessary to prevent his committing an offence’. In the light of our conclusion in [56]–[62], above, that the answer to the question whether the appellants appeared to be about to commit a breach of the peace was ‘No’, we do not at present see how the respondent can successfully rely upon art 5(1)(c) in the case of either appellant. However, in the light of our conclusion that there was no deprivation of their liberty under art 5(1), it is not necessary to give further consideration to this question.

XVI DAMAGES

[118] In case his decision on liability was held to be wrong, the judge considered the issue of damages (see [581]–[597]). He held that, if either claimant was entitled to damages for false imprisonment, he would have awarded only compensatory damages and not either aggravated or exemplary damages. He would have awarded nominal damages of £5 to Ms Austin and £100 to Mr Saxby (see [596]). He would have awarded nothing by way of damages for breach of art 5, if those damages fell to be assessed separately (see [597]). The appellants appeal against those awards but, in the light of our conclusion that the appeal on liability fails, we do not think it necessary or appropriate to consider these issues in this judgment.

XVII CONCLUSIONS

[119] For these reasons we dismiss the appeal. Our conclusions may briefly be summarised as follows:

(i) the appellants were ‘imprisoned’ for the purposes of the tort of false imprisonment but their ‘imprisonment’ was lawful because, although the appellants did not themselves appear to be about to commit a breach of the peace, on the judge’s findings of fact the police had no alternative but to ask all those in Oxford Circus to remain inside the police cordon in order to avoid an imminent breach of the peace by others;

(ii) the correct approach is summarised in the propositions set out in [35], above as follows: (a) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with

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or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected; (b) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but (c) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police; (d) this is a test of necessity which it is to be expected can only be justified in truly extreme and exceptional circumstances; and (e) the action taken must be both reasonably necessary and proportionate;

(iii) those tests of necessity and proportionality, which are derived from the Irish case of O’Kelly v Harvey and from statements of principle in the recent House of Lords case of Laporte, were satisfied on the facts found by the judge;

(iv) there is no sensible basis upon which this court could or should interfere with those findings of fact;

(v) it is unnecessary to express a view upon the respondent’s case based on the 1986 Act;

(vi) art 5 of the convention does not apply because the containment of the appellants within the cordon did not amount to a deprivation of liberty within that article, as opposed to an interference with liberty of movement;

(vii) in these circumstances it is not necessary to express a concluded view on the parties’ respective contentions, either under art 5(1)(b) or (c) of the convention, or on the assessment of damages.

[120] Finally we would like to thank counsel for their assistance in this most unusual case and to apologise for the time it has taken to produce this judgment.

Appeal dismissed.

Kate O’Hanlon Barrister.

Jackson and others v Thakrar and others

[2008] 1 All ER 601

[2007] EWHC 626 (TCC)

Categories:        CIVIL PROCEDURE        

Court:        QUEEN’S BENCH DIVISION (TECHNOLOGY AND CONSTRUCTION COURT)        

Lord(s):        JUDGE PETER COULSON QC        

Hearing Date(s):        14, 22 MARCH 2007        

Costs – Order for costs – Payment of costs by non-party – Circumstances in which non-party may be ordered to pay costs of proceedings – Causation – Non-party providing funding for party to appear at hearing – Whether non-party could be ordered to pay costs of proceedings where funded party present at hearing only because of funding provided by non-party – Supreme Court Act 1981, s 51.

The parties were engaged in complex litigation. The only one of the defendants with any substantial assets issued an application for a declaration that the litigation had been compromised. Another of the defendants, S, who was a bankrupt, was represented at the hearing and his counsel’s fee was funded in large part by S’s wife, K. The judge found that the litigation had not been compromised and at a costs hearing ruled that the defendants were to pay the claimants’ costs of compromise issue on an indemnity basis. The first claimant, S’s trustee in bankruptcy, applied for an order under s 51 (Section 51, so far as material, is set out at [2], below) of the Supreme Court Act 1981 that K be joined to the proceedings for costs purposes so that she could be made liable for all or some of the first claimant’s costs. That section provided that the costs of and incidental to all proceedings in the High Court were in the discretion of the court. The trustee contended, inter alia, that authority established that if a party were only present in court because of the funds that had been provided by a third party, then the causation required to make a s 51 order had been made out.

Held – The relevant test on causation in an application under s 51 of the 1981 Act was whether the funding that had been provided by the non-party had caused the applicant to incur costs that he would not otherwise have incurred. If the applicant would have incurred the relevant costs in any event, whether the funded party had been funded by the non-party or not, then it would be wrong in principle to make an order under s 51. Although most of the decided cases were concerned with the relationship between the funding party and the funded party, that was entirely a function of the fact that, in those cases, if the funding party had not provided the funded party with the wherewithal to pursue or defend the litigation, there would have been no litigation at all and thus the costs in question would never have been incurred. In the instant case, if S had not been represented at the hearing, the trustee would have incurred precisely the same costs. Accordingly, the third party costs order would be refused (see [14]–[20], [45], below).

Aiden Shipping Co Ltd v Interbulk Ltd, The Vimeria [1986] 2 All ER 409, Hamilton v Al Fayed (No 2) [2002] 3 All ER 641 and Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2005] 4 All ER 195 applied.

Fulton Motors Ltd v Toyota (GB) Ltd [1999] CA Transcript 1670 and Koninklijke Philips Electronics NV v Aventi Ltd [2003] EWHC 2589 (Pat) considered.

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Notes

For costs orders in favour of or against non-parties, see 10 Halsbury’s Laws (4th edn reissue) para 202.

For the Supreme Court Act 1981, s 51, see 11(2) Halsbury’s Statutes (4th edn) (2006 reissue) 780.

Cases referred to in judgment

Aiden Shipping Co Ltd v Interbulk Ltd, The Vimeria [1986] 2 All ER 409, [1986] AC 965, [1986] 2 WLR 1051, HL.

Cooper v Maxwell [1992] CA Transcript 273.

Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2005] 4 All ER 195, [2004] 1 WLR 2807.

Fulton Motors Ltd v Toyota (GB) Ltd [1999] CA Transcript 1670.

Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232, CA.

Hamilton v Al Fayed (No 2) [2002] EWCA Civ 665, [2002] 3 All ER 641, [2003] QB 1175, [2003] 2 WLR 128.

Koninklijke Philips Electronics NV v Aventi Ltd [2003] EWHC 2589 (Pat).

Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS Gaz R 39; affd [2000] 1 All ER 65, [2000] QB 451, [2000] 2 WLR 870, CA.

Metalloy Supplies Ltd (in liq) v MA (UK) Ltd [1997] 1 All ER 418, [1997] 1 WLR 1613, CA.

Murphy v Young & Co’s Brewery plc and Sun Alliance and London Insurance plc [1997] 1 All ER 518, [1997] 1 WLR 1591, CA.

Symphony Group plc v Hodgson [1993] 4 All ER 143, [1994] QB 179, [1993] 3 WLR 830, CA.

Thistleton v Hendricks (1992) 32 Con LR 123.

Costs application

The claimants, Shirley Jackson, the trustee in bankruptcy of Subhash Kanji Thakrar (the trustee), Suburban Property Co Ltd, Kenneth Hughes-Narborough, Rosemary Campbell, Michael Hughes-Narborough, Barbara Harris, Ramila Suresh-Bhojani and Vijaya Radia brought proceedings against the defendants, Subhash Kanji Thakrar (Subhash), Mukesh Kanji Thakrar, Vijay Kanji Thakrar, Kishan Kanji Thakrar, Sheela Kanji Thakrar, Naina Unalkat, Shantaben Kanji Thakrar, Glen International Ltd (Glen), Teso International Group Ltd, SK Thakrar and Co Ltd, Simply Lettings and Management Ltd, Mahindra Harjivan, Selwyn Michael Langley and Justin Lee Bennett. Following an unsuccessful application by Glen for a declaration that there had been a binding compromise of the proceedings ([2007] EWHC 271 (TCC), [2007] All ER (D) 271 (Feb)) Judge Peter Coulson QC ordered the defendants to pay the claimants’ costs of the compromise issue on an indemnity basis. The trustee sought an order under s 51 of the Supreme Court Act 1981 that Kiran Thakrar (Kiran) be joined into the proceedings for costs purposes. The facts are set out in the judgment.

Jane Giret QC (instructed by Balsara & Co) for the trustee.

Robin Howard (instructed by Jefferies, Westcliff) for Kiran.

Judgment was reserved.

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22 March 2007. The following judgment was delivered.

JUDGE PETER COULSON QC.

INTRODUCTION

[1] On 20 February 2007 I handed down my judgment on the compromise issue1. I concluded that, for a variety of reasons, the defending/applicant parties could not demonstrate that there had been a binding compromise of this complex litigation. I therefore rejected their application for a declaration to that effect. At the subsequent costs hearing I ruled that the defending/applicant parties had to pay the claiming parties’ costs of the compromise issue on an indemnity basis. Party 1, the trustee in bankruptcy of Subhash Thakrar (Subhash), now seeks an order, pursuant to s 51 of the Supreme Court Act 1981, that Mrs Kiran Thakrar (Kiran), Subhash’s wife who provided funds for his representation, be joined into the proceedings for costs purposes, so that she can be made liable for all or some of the trustee’s costs of the compromise issue.

[2] Section 51(1) provides that ‘the costs of and incidental to all proceedings in . . . the High Court . . . shall be in the discretion of the court’. Section 51(3) makes plain that the court ‘shall have full power to determine by whom and to what extent the costs are to be paid’. Ever since the House of Lords decision in Aiden Shipping Co Ltd v Interbulk Ltd, The Vimeria [1986] 2 All ER 409, [1986] AC 965, it has been clear that s 51 permits a court to award costs against a person who was not a party to the proceedings. There have been numerous cases on the extent and limits of this jurisdiction, some of which are analysed below.

[3] There are broadly four issues between the parties. They are: (1) whether there is sufficient causal connection between Kiran’s funding and the costs of the compromise issue and, if not, whether as a matter of principle that is determinative of this application; (2) whether Kiran can be classified as a ‘pure’ funder and, if so, whether on the facts there is any reason why the general presumption that a s 51 order will not be made in such a case has been displaced; (3) whether Kiran’s role as a director and shareholder of SK Thakrar and Co Ltd (party 16) can or should make any difference to the outcome of the s 51 application; (4) whether, in all the circumstances of this case, the court should exercise its discretion in favour of the s 51 application.

[4] I set out at [5]–[7], below the relevant factual background. I then go on to address each of the four issues noted above.

FACTUAL BACKGROUND

[5] Following an exchange of correspondence in late October/early November 2006, the defending parties claimed that they had achieved a binding compromise of the litigation in the sum of £20·1m. When the claiming parties disputed that assertion, Glen International Ltd (party 14), who are the only one of the defending parties with any substantial assets, issued an application for a declaration that the litigation had indeed been compromised. They were joined in that application by Mr Harjivan, party 18, the apparent owner of the shares in Glen. However, in the event, he took no part at all in the preparation for and hearing of the application for a declaration that the litigation had been compromised.

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[6] That hearing took place before me on 22–24 January 2007. Although Subhash was represented at the hearing by Mr Howard, and although Mr Sen acted for a number of the other Thakrar family members, and the limited company (party 16), I have no hesitation in finding that the burden of the application for a declaration fell on Glen. Thus, at the three-day hearing, it was Mr Jones QC, on behalf of Glen, who made the vast majority of the running on behalf of the defending parties. He made most of the oral submissions to me, and undertook most of the cross-examination. Mr Howard and Mr Sen made oral submissions for about 20 minutes each, and their cross-examination was minimal.

[7] Although Mr Howard had been involved for Subhash in the run-up to the hearing, his participation at the hearing itself depended on the payment of a brief fee. It is common ground that that fee was funded, in large part at least, by Kiran. In the week before the hearing, Kiran took £10,000 out of her building society account and sent it to Nathans, Mr Howard’s instructing solicitors. The bulk of that money was then paid to Mr Howard by way of a brief fee. In consequence, Mr Howard attended the three-day hearing before me on 22–24 January.

ISSUE (1): CAUSATION

[8] Mr Howard’s first submission was that causation was a necessary pre-condition of any order under s 51. He submitted that, if I concluded that the hearing in January 2007 would have taken place in any event, with or without the assistance of the funding provided to Subhash by Kiran, the non-party, then there was no room for an order to be made. He said that, in the present case, the three-day hearing on the compromise issue would have taken place anyway, whether or not Subhash was represented at that hearing. He maintained that it was principally Glen who was pursuing the compromise issue (because they had the most to gain from it) and it was Glen, on the defending parties’ side, who constituted the lead party at that hearing. Effectively, he said, the key question was whether the funding of Subhash caused the trustee (party 1) to incur costs which she otherwise would not have done. It was his case that the answer was No, because the trustee would have incurred precisely the same costs anyway.

[9] In response, Mrs Giret QC suggested that this was a novel argument, which relied on the fact that there were other parties in the litigation, not just the s 51 applicant and the funded party, and that such a situation had not been considered by the courts before. She said that the reported cases were solely concerned with the relationship between the funding party and the funder, and that the existence of any other parties was irrelevant to the proper operation of s 51. It was her case that the relevant question was whether, but for the funds provided by the non-party, the funded party would have taken part in the hearing. She said that the answer to this question was No, because Subhash needed Kiran’s £10,000 to pay for his representation at the January hearing.

[10] I was referred to four cases on the question of causation. The first of those was Fulton Motors Ltd v Toyota (GB) Ltd [1999] CA Transcript 1670. In that case, Fulton had gone into administrative receivership. The receiver funded the litigation prior to April 1999, when the directors took over the funding of the appeal. The appeal was dismissed in July 1999. The Court of Appeal concluded that it was not an appeal which, on any realistic objective assessment, could be said to have had good prospects of success. They therefore made a s 51 order against the directors personally, but limited to the period between April and July 1999. I am bound to say that I consider that this case was unremarkable on

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its facts, and was not of any particular assistance on the causation issue with which I have to deal. In Fulton’s case, there plainly would have been no appeal from April 1999 onwards but for the funding provided by the directors.

[11] Of much greater relevance to the causation issue before me were the judgments of the Court of Appeal in Hamilton v Al Fayed (No 2) [2002] EWCA Civ 665, [2002] 3 All ER 641, [2003] QB 1175. There the Court of Appeal reviewed numerous authorities under s 51, and it will be necessary for me to refer later to the judgments of Simon Brown and Hale LJJ on some of the subsequent issues that arise in this case. For present purposes, however, it is necessary to refer only to paras [52]–[57] of the judgment of Simon Brown LJ (as he then was). There he dealt with a causation argument put forward by Lord Portsmouth, one of the funders of the bankrupt former MP, Neil Hamilton, against whom Mohammed Al Fayed was seeking a costs order pursuant to s 51. Lord Portsmouth’s £100,000 contribution was made on 26 October 1999, which was after Mr Hamilton’s solicitors had taken the decision to proceed with the case, irrespective of whether any further donations were made. Simon Brown LJ said:

‘[54] Given that proof of causation is a necessary pre-condition of the making of a s 51 order against a non-party—as to which there is ample authority and, as I understand it, no dispute—Mr Wardell submits that the bare facts just recited demonstrate of themselves that in Lord Portsmouth’s case such proof was wanting—that, indeed, Lord Portsmouth’s contribution plainly did not cause Mr Al Fayed to incur any costs which he would not otherwise have incurred . . .

[56] . . . The mere fact that the later contributors knew nothing of the Rubicon having been crossed [ie the decision to proceed to trial] cannot logically avail Mr Al Fayed. Nor can the fact that the solicitors no doubt hoped for and perhaps even expected further contributions to be made.

[57] The argument, I have to say, appears to me not merely irresistible but also to demonstrate that there would need to be further factual exploration along these lines in all pure funding cases were they not to be subject to a general presumption against s 51 liability in any event . . .’

[12] The third case on causation is the decision of the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2005] 4 All ER 195, [2004] 1 WLR 2807. There, Lord Brown of Eaton-Under-Heywood referred to what he himself had said in Hamilton’s case before going on to say (at [20]):

‘Although the position may well be different when a number of non-parties act in concert, their Lordships are content to assume for the purposes of this application that a non-party could not ordinarily be made liable for costs if those costs would in any event have been incurred even without such non-party’s involvement in the proceedings . . .’

[13] The final case on causation to which I was referred was Koninklijke Philips Electronics NV v Aventi Ltd [2003] EWHC 2589 (Pat). There, Pumfrey J referred to Hamilton’s case as emphasising the need for a casual relationship between the activities of the funded party on the one hand and his receipt of funding on the other. He observed (at [13]) that ‘if the evidence were that the funded party would have gone ahead anyway, the case for an order for costs against the funder is destroyed’. On the facts of that case, the judge made a s 51 order because he was satisfied that Philips incurred costs which, but for the funding of the defendant, Aventi, by the funder, Princo, would not have been incurred

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(see paras [28], [33] and [37] of the judgment). He also found that Princo had a direct interest in the outcome of the litigation.

[14] It seems to me that the present dispute between the parties on the causation issue comes down to one simple point. Mrs Giret submits, by reference to Hamilton’s case, and Pumfrey J’s comment in the Philips case about the relationship between the funded party’s activities and his receipt of funding, that what matters in law is the reason why the funded party is present at the hearing or trial: if the funded party is only present in court because of the funder, then she says that the necessary causation has been made out. Mr Howard submits, by reference to Hamilton’s case and the Dymocks case, that the key issue is what caused the s 51 applicant to incur the costs which are now the subject of the application, and that if those costs would have been incurred in any event, whether the funding was provided or not, the application must fail as a matter of causation. For the reasons set out below, I am in no doubt that Mr Howard’s analysis is correct.

[15] It is right that the majority of the cases under s 51 are concerned with the relationship between the funder and the funded party: see, for example, the decision in Fulton’s case. But that seems to me to be entirely a function of the fact that, in those cases, if the funder had not provided the funded party with the wherewithal to pursue or defend the litigation, there would have been no litigation at all, and therefore the other party’s costs, which were the subject of the subsequent s 51 application, would never have been incurred. Plainly, in a s 51 application, what matters is whether the funding provided by the non-party caused the applicant to incur costs which he would not otherwise have incurred. That must be the relevant test on causation.

[16] Support for the proposition that what matters is whether the costs that are the subject of the s 51 application have been incurred as a result of the funding provided by the non-party can be found in Hamilton’s case, where Simon Brown LJ (at [54]) decided the issue of causation on the basis that Lord Portsmouth’s contribution to Neil Hamilton ‘plainly did not cause Mr Al-Fayed to incur any costs which he would not otherwise have incurred’. Similarly, in the Dymocks case (at [20]), Lord Brown stated that a non-party ‘could not ordinarily be made liable for costs if those costs would in any event have been incurred even without such non-party’s involvement in the proceedings’. It seems to me that those two statements of principle are clear and I am bound by them. Moreover, I respectfully agree with the simple logic that they convey. If the s 51 applicant would have incurred the relevant costs in any event, whether the funded party was funded by the non-party or not, then it would be wrong in principle to make a s 51 order.

[17] I should also add that, notwithstanding Pumfrey J’s general comment in the Philips case about the relationship between the activities of the funded party and his receipt of funding, upon which Mrs Giret relied so heavily, the judge’s decision in that case followed precisely the principle which I have outlined in [15] and [16], above: he was satisfied that Aventi would not have defended the action if it had not been for the funding from Princo, and that therefore Philips incurred costs pursuing Aventi which, but for the funding, they would not have incurred.

[18] In the present case, I find that, if Kiran had chosen not to withdraw the £10,000 from her building society, two things would have happened. First, Mr Howard would not have attended the hearing on 22–24 January 2007 and Subhash would not have been represented before me at the hearing of the compromise issue. Secondly, the compromise hearing would then have unfolded

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precisely as it did, with the only difference being that I would have been deprived of the benefit of Mr Howard’s brief cross-examination of Mr Patel and the 20 minutes of his oral submissions.

[19] I am in no doubt at all that, if Subhash had not been represented at the compromise hearing, the trustee would have incurred precisely the same costs as she in fact incurred. All of the trustee’s costs would have been incurred in any event in order to defeat, as she did, the application made and pursued by Glen. As I am sure he would agree, Mr Howard’s role at the hearing, as a representative of Subhash, amounted to that of a bit-part player, and I find that it was ultimately irrelevant to the costs incurred by the trustee.

[20] Accordingly, I accept Mr Howard’s first proposition. Kiran’s funding of Subhash’s legal team for the January hearing did not cause the trustee to incur costs which she would not otherwise have done. In those circumstances, in accordance with the principle outlined by the Court of Appeal in Hamilton’s case, and by the Privy Council in the Dymocks case, I reject the s 51 application. However, out of deference to the careful submissions of both counsel, it is appropriate for me to go on and consider the other arguments that were raised before me. I do so therefore on the assumption that I am wrong on the causation issue.

ISSUE (2): KIRAN’S STATUS AS A FUNDER

[21] The status issue arises in this way. The authorities (some of which are examined in greater detail below) establish that the court will be much less likely to make a s 51 order against a ‘pure’ funder, and much more likely to make such an order against a professional funder (like an insurer), or one with a financial interest in the outcome of the litigation. Mr Howard submits that Kiran is a pure funder, motivated by love for her bankrupt husband, and should not, in line with the authorities, be made the subject of a s 51 order. Mrs Giret submits that, to the contrary, Kiran had a clear financial interest in the outcome of the compromise issue. Moreover, even if I was against her on that submission and I concluded that Kiran was a pure funder, Mrs Giret also suggests that Subhash’s pursuit of the compromise issue was oppressive and/or triggered by an ulterior motive, which would constitute an exception to the usual presumption that a s 51 order could not be made against a pure funder. I deal with those points below.

[22] The authorities concerned with the status of a private, non-party funder start with Cooper v Maxwell [1992] CA Transcript 273. In that case Kevin Maxwell pursued and lost an appeal against a decision at first instance which rejected his contention that he was entitled to rely on the privilege against self-incrimination as a ground for refusing to answer questions put to him by liquidators. Mr Maxwell’s costs of his unsuccessful appeal were funded by his mother, Mrs Elizabeth Maxwell, the widow of Robert Maxwell. The liquidators sought a s 51 order against Mrs Maxwell. The Court of Appeal refused to make such an order. Dillon LJ said that the appeal had been brought bona fide, and concluded that justice did not require Mrs Maxwell, having elected to provide money for her son’s costs and legal expenses, to pay the costs of the other side which had been successful in the litigation for which the funds were used.

[23] Although Murphy v Young & Co’s Brewery plc and Sun Alliance and London Insurance plc [1997] 1 All ER 518, [1997] 1 WLR 1591 was not a case about a private funder, Phillips LJ (as he then was) commented on the decision in Maxwell’s case:

‘This decision demonstrates a proposition that [counsel] has not sought to challenge. Funding alone will not justify an order against the funder under

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s 51. I do not consider that an order under s 51 will normally be appropriate where a disinterested relative has, out of natural affection, funded costs of a claim or a defence that is reasonably advanced.’ (See [1997] 1 All ER 518 at 529, [1997] 1 WLR 1591 at 1603–1604.)

[24] A similar situation, although a different result, arose in Thistleton v Hendricks (1992) 32 Con LR 123. That was a building case in which the plaintiff builder sued the employer for the balance due, and the defendant successfully obtained judgment on his counterclaim. It then transpired that the plaintiff’s mother had funded her son’s case. Judge John Hicks QC concluded that it was appropriate to make a s 51 order against Mrs Thistleton, particularly as she had funded a positive claim, as opposed to a defence to a claim that had been brought by somebody else. The judge distinguished Maxwell’s case on the ground that Kevin Maxwell’s appeal had concerned an important point of law on which there had been a difference of opinion between judges at first instance. He also concluded that it was reasonable to make the order because Mrs Thistleton had known, when funding her son’s litigation, that he was unlikely to be able to pay Mr Hendricks’ costs if ordered to do so. For the reasons noted below, it is now doubtful as to whether the decision in Thistleton’s case remains good law.

[25] The other relevant private funded case is Locabail (UK) Ltd v Bayfield Properties Ltd [1999] 20 LS Gaz R 39. In that case, Mrs Barbara Emmanuel failed to set aside a possession order arising out of various steps taken by her estranged husband, Mr Ares Emmanuel. Mrs Emmanuel’s application was funded by Mr Peter Tavoulareas, who was Mrs Emmanuel’s first husband. He had given evidence in support of her position and had recommended to her the firm of solicitors who went on to act for her in the litigation. Although he had no financial obligation towards Barbara, he accepted in cross-examination that ‘it really wouldn’t do me well to see the mother of my two children without a home’. The judge referred to both Maxwell’s case and Thistleton’s case and paid particular attention to that latter decision. He made the s 51 order that was sought.

[26] Although all of these cases were cited to the Court of Appeal in Hamilton’s case, the Locabail case was not dealt with in any of the judgments. The other two cases were analysed by Simon Brown LJ as part of his review of the various authorities on s 51. He concluded (at [48]) that, whilst the courts had not clearly laid down a rule that pure funders were generally to be regarded as exempt from s 51 orders, he did not consider that they should ordinarily be held liable. He referred (at [57]) to ‘a general presumption against s 51 liability in any event’ in cases involving pure funders. This was a view with which Hale LJ (as she then was) was ‘reluctantly persuaded to agree’ (at [73]).

[27] I note that Simon Brown LJ considered that it was difficult to reconcile Maxwell’s case with Thistleton’s case and regarded the former as clearly prevailing over the latter. He pointed out (at [40]) that Thistleton’s case was a decision about which Phillips LJ had reservations in Murphy’s case ‘if, indeed, he did not implicitly overrule it—see in particular his reference to a disinterested relative funding “costs of a claim or a defence that is reasonably advanced” (my emphasis)’. In those circumstances, it would not be appropriate for me to reach any conclusion on the basis of the decision of Judge Hicks QC in Thistleton.

[28] If pure funders will not ordinarily be held liable under s 51, then in what circumstances might that general presumption be displaced? The clearest guidance on that topic comes at [86] of the judgment of Hale LJ. There she says:

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‘There must, however, be exceptional cases where it would be quite unjust not to make an order: principally where the litigation was oppressive or malicious or pursued for some other ulterior motive. The fact that it was quite unmeritorious would be powerful evidence of ulterior motive but neither a necessary nor a sufficient criterion in itself.’

[29] Of course, the position in respect of funders who have a financial interest in the outcome of the litigation is very different. As Lord Brown put it at [25](3) of his speech in the Dymocks case:

‘Where, however, the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs . . .’

This principle, of course, explains why the funders were made the subject of s 51 orders in the Fulton case and the Philips case.

[30] Turning now to the facts of the present case, I consider that, on the evidence, the proper starting point is to regard Kiran as a private funder motivated by natural affection for her husband. The trustee, however, relied on two particular matters in support of her contention that that is not, in fact, the true position, and that she had a financial interest in the outcome of the compromise issue. First, it was said that Kiran is a director of SK Thakrar and Co Ltd (party 16), and Mr Howard accepted that she was also a shareholder in that same company. Party 16, represented by Mr Sen, argued that there had been a binding compromise. In addition, the trustee relied on the fact that Kiran, and her children, are the subject of applications in the bankruptcy proceedings in respect of moneys and shares which the trustee claims belong to her, and that therefore Kiran had a direct interest in the argument that a binding compromise had been achieved.

[31] As to Kiran’s role as a director (and shareholder) in party 16, it seems to me that that is irrelevant to the private funding that she provided to her husband. I have already made a costs order against party 16 so, to the extent that Kiran is either a director or a shareholder of that company, she is directly affected by that existing order. I do not consider that it would be appropriate to regard her as having a different status as a funder merely because of her separate role in the running of the limited company. That is a point to which I revert at [37]–[39], below.

[32] As to the position in the bankruptcy, it is clear that Kiran is directly affected by the bankruptcy proceedings. However, even taking full account of the recent information that she has provided as to her assets, I accept that she could not fairly be described as wealthy in her own right. Furthermore, it is apparently common ground that the alleged compromise of the Thakrar litigation at £20·1m would not automatically have resulted in a surplus in the bankruptcy. Thus, whether Kiran had any personal or financial interest in the outcome of the compromise issue is unclear: if the alleged compromise would not necessarily have brought about an end to the difficulties created for Kiran by the bankruptcy (because the bankrupt estate would still have been in deficit), then it is difficult to see how or why the result of the compromise hearing would have made any real difference to her.

[33] It would plainly be idle to suggest that Kiran is in precisely the same position as the pure/private funders referred to in Maxwell’s case and

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Hamilton’s case. She is, after all, directly affected by the bankruptcy proceedings. On the other hand, it seems to me that, in relation specifically to the compromise issue, she is much closer to the position of these pure funders than the interested funders who were the subject of the successful s 51 applications in the Fulton case and the Philips case. It has not been demonstrated that there was a direct financial benefit to her personally if I had concluded that the litigation had been compromised for £20·1m, which was the particular issue in respect of which the relevant costs were incurred. Even if there was a possible financial benefit to her of a successful compromise, I consider that it might well have been modest.

[34] Thus, in relation to the compromise dispute, and the costs that it generated, I consider that it is appropriate to treat Kiran as being in a position at least akin to that of a pure funder. In those circumstances, the usual order would be that the s 51 application against her would fail. Is there any reason to upset that general presumption?

[35] Mrs Giret argued that this case was an exception to the usual rule, because the compromise claim was hopeless, and was thus used oppressively and/or pursued for some other ulterior motive. I do not accept that. I have made the point that the compromise application was opportunistic and, if a full legal analysis had been brought to bear on the correspondence at an earlier stage, the defending parties would or should have realised that the application was going to fail. But Hale LJ was quick to point out in Hamilton’s case that the fact that the litigation is unmeritorious is not a necessary or sufficient criterion in itself to justify a s 51 order. Something else is necessary. On the evidence before me I am quite unable to find that the application for a declaration was oppressive or pursued for some other ulterior motive. I also decline to find that in some way the compromise issue demonstrated a lack of bona fides on the part of the defending parties or, indeed, Kiran herself. When I ordered that the costs of the compromise issue should be paid by the defending parties on an indemnity basis, I made no finding of bad faith, and I expressly referred to the post-CPR authorities which make clear that such a finding is not necessary in order to justify an order for indemnity costs.

[36] For those reasons, therefore, I conclude that Kiran’s status is at least akin to that of a pure funder and that I should decline to make a s 51 order against her in any event. The presumption against such an order has not been displaced.

ISSUE (3): IS THE POSITION ALTERED AS A RESULT OF KIRAN’S ROLE AS A COMPANY DIRECTOR/SHAREHOLDER?

[37] I can deal with this third issue quite shortly. In my judgment, the fact that Kiran is a company director and shareholder in party 16 was irrelevant both to the compromise proceedings and this s 51 application. She provided the money to fund her husband as a private individual: as the wife of Subhash, whose conduct lies at the heart of the labyrinthine litigation being dealt with by Judge Thornton QC. That funding was nothing whatsoever to do with the company, or her position in it. Indeed, it is right to note that the company was separately represented by Mr Sen at the compromise hearing before me. Furthermore, as I have already pointed out, the company is already liable for the costs order that I made against the defending parties. In those circumstances I do not consider that Kiran’s role in the company has any relevance to the s 51 application.

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[38] Support for that proposition, if it were needed, can be found in Metalloy Supplies Ltd (in liq) v MA (UK) Ltd [1997] 1 All ER 418 at 424–425, [1997] 1 WLR 1613 at 1620 in which Millett LJ said:

‘It is not, however, sufficient to render a director liable for costs that he was a director of the company and caused it to bring or defend proceedings which he funded and which ultimately failed. Where such proceedings are brought bona fide and for the benefit of the company, the company is the real plaintiff. If in such a case an order for costs could be made against a director in the absence of some impropriety or bad faith on his part, the doctrine of the separate liability of the company would be eroded and the principle that such orders should be exceptional would be nullified.’

[39] Accordingly, I consider that Kiran’s interest in and obligations owed to party 16 are irrelevant to the s 51 application against her, and do not lead me to alter my view that no such order should be made.

ISSUE (4): DISCRETION

[40] I have referred above to my decision to refuse the s 51 application on the ground that Kiran’s funding of her husband did not cause the trustee to incur any costs that the trustee would not otherwise have incurred but for the funding. In addition I have found that, even if I am wrong as to the causation question, Kiran’s position was at least akin to that of a pure funder and that, on the basis of the authorities, the presumption must be that a s 51 order is not appropriate in her case. On the evidence, there is nothing which would discharge that presumption or lead to the making of a s 51 order.

[41] For completeness, I should say that I would not, in any event, have been minded to exercise my discretion in favour of making the order. Such orders are exceptional: see Symphony Group plc v Hodgson [1993] 4 All ER 143, [1994] QB 179. Of course, that means ‘exceptional . . . by comparison with the ordinary run of cases’: see Millett LJ in Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232 at 240. As he himself put it in the Metalloy case [1997] 1 All ER 418 at 424, [1997] 1 WLR 1613 at 1620, the making of a s 51 order can properly be described as exceptional ‘since it is rarely appropriate’.

[42] I do not consider that the present case is one of those rare cases in which it is appropriate to make such an order. As I pointed out in my judgment on the compromise issue, Glen is a substantial company worth in excess of £30m. The trustee has to ensure that the maximum is recovered in the bankruptcy and has obtained freezing orders against Glen in order to advance that process. It was common ground at the compromise hearing that, if there had been a settlement, the £20·1m would have been paid by Glen. Accordingly, Glen is the most important of the defending parties; without Glen’s express agreement, this action cannot be compromised on their behalf.

[43] In those circumstances, it seems to me that it would be wrong to place into the costs spotlight other defending parties who, in all the circumstances of the case, were of considerably lesser importance, particularly in respect of the alleged compromise. Subhash is in that category. Although he commenced one of the two principal elements of this litigation in the first place, and his conduct is at the heart of the fact-finding exercise, he is now bankrupt and is the subject of a number of court orders which he either cannot or will not pay. His wife’s decision to fund representation on his behalf in the compromise issue was quite understandable, but it was something of a sideshow, and I am in no doubt that it

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would be quite unjust to use that funding against Kiran now to justify an order in favour of the trustee under s 51.

[44] There is one final point that I should like to make which is relevant to the exercise of my discretion. In Hamilton’s case, Maxwell’s case and Thistleton’s case, the funders had each provided funds to allow the funded party to go onto the offensive and mount, respectively, a libel case, a potentially important issue about self-incrimination, and a claim for moneys due under a building contract. In other words, in each case, what was being funded was a positive claim that was in the particular interest of the funded party himself. Here, in contrast, it could be said that the compromise issue for which Kiran provided funds on behalf of her husband was a bona fide (albeit misguided) attempt to bring to an end difficult and expensive litigation aimed directly at Subhash and the other defending parties, the continuation of which could not, by any stretch of the imagination, be described as being in the interests of Subhash, or any of the others. Even though this attempt involved an application to the court by Glen, in which they were supported by other defending parties, I consider that, in the context of the Thakrar litigation as a whole, the application was essentially defensive in nature, not offensive; reactive, not proactive. That is a further factor that leads me to conclude that justice does not require the order sought.

CONCLUSION

[45] I conclude that the trustee would have incurred precisely the same costs, whether or not Kiran had funded her husband’s representation at the compromise hearing. There is therefore no causal link between the funding on the one hand, and the costs which are the subject of the s 51 application on the other. On that ground alone, the application must fail.

[46] In any event I consider that Kiran is in a position at least akin to that of the pure funders in the reported cases, where there is a presumption that, unless there is a good reason to do so, no s 51 order will be made. There is no reason here to depart from that presumption.

[47] Further and in any event, in all the circumstances, I would decline to exercise my discretion in favour of making the order sought. The application is therefore refused.

Application dismissed.

Martyn Gurr Barrister.

Secretary of State for the Home Department v JJ and others

[2008] 1 All ER 613

[2007] UKHL 45

Categories:        HUMAN RIGHTS; Liberty: INTERNATIONAL; International Criminal Law        

Court:        HOUSE OF LORDS        

Lord(s):        LORD BINGHAM OF CORNHILL, LORD HOFFMANN, BARONESS HALE OF RICHMOND, LORD CARSWELL AND LORD BROWN OF EATON-UNDER-HEYWOOD        

Hearing Date(s):        5, 9, 10–13 JULY, 31 OCTOBER 2007        

Human rights – Right to liberty and security – Prevention of terrorism – Control order – Non-derogating control order – Secretary of State making non-derogating control orders against individuals suspected of involvement in terrorism-related activity – Control orders requiring each individual to remain in specified residence for 18 hours per day, confining each individual to small urban area and prohibiting contact with other persons unless previously authorised – Whether obligations in control orders breaching right to liberty – Whether orders to be modified or quashed – Human Rights Act 1998, Sch 1, Pt I, art 5(1) – Prevention of Terrorism Act 2005, ss 1(2), 2(1).

Under s 1(2)a of the Prevention of Terrorism Act 2005 the power to make an order against an individual that imposed obligations on him for purposes connected with protecting members of the public from a risk of terrorism (a control order) was exercisable, except in the case of an order imposing obligations that were incompatible with the individual’s right to liberty under art 5b of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) by the Secretary of State (a non-derogating control order). In the case of an order imposing obligations that were or included derogating obligations, the power to make an order was exercisable by the court on an application by the Secretary of State. Under s 2(1)c the Secretary of State could make a control order if he had reasonable grounds for suspecting that the individual was or had been involved in terrorism-related activity and considered that it was necessary, for purposes

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connected with protecting members of the public from a risk of terrorism, to make a control order. The Secretary of State made non-derogating control orders against six Iraqi or Iranian nationals; three had leave to remain in the United Kingdom and three had temporary admission. The obligations imposed by the control orders were essentially identical. Each controlled person was required to remain within his specified residence, which was in each case a one-bedroom flat, except for the period between 10 am and 4 pm. Visitors had to be authorised by the Home Office, to which name, address, date of birth and photographic identity had to be supplied. The residences were subject to spot searches by the police. During the six hours when they were permitted to leave their residences, the controlled persons were confined to restricted urban areas, which deliberately did not extend, save in one case, to any area in which they had lived before. Each area contained a mosque, a hospital, primary health care facilities, shops and entertainment and sporting facilities. The controlled persons were prohibited from meeting anyone by pre-arrangement who had not been given Home Office clearance. A High Court hearing was held under the 2005 Act to determine whether the decisions of the Secretary of State that the requirements of s 2(1) were satisfied and the decisions of the Secretary of State on the imposition of each of the obligations imposed by the orders were flawed. The judge held, bearing in mind the type, duration, effects and manner of implementation of the obligations in the control orders, that the cumulative effect of those obligations was to deprive the controlled persons of their liberty in breach of art 5 of the convention. He held that the collective impact of the obligations could not sensibly be described as a mere restriction upon the controlled persons’ liberty of movement. He concluded that in terms of the length of the curfew period, the extent of the obligations, and their intrusive impact on the controlled persons’ ability to lead anything resembling a normal life, whether inside their residences within the curfew period, or for the six-hour period outside it, the control orders went beyond the restrictions in those cases where the European Court of Human Rights had concluded that there had been a restriction upon, but not a deprivation of, liberty. He further held that the control orders should be quashed. The Court of Appeal dismissed the Secretary of State’s appeal, and the Secretary of State appealed against that decision. The Secretary of State contended (i) that the obligations imposed had not deprived the controlled persons of their liberty; but (ii) that, if the obligations had done so, the orders should have been modified and not quashed. It was common ground that the prohibition in art 5 on depriving a person of his liberty had an autonomous meaning for the purposes of the convention, whatever it might or might not be thought to mean in any member state.

Held – (1) (Lord Hoffmann and Lord Carswell dissenting) National courts had to seek to give fair effect, on the facts of each particular case, to the principles which the European Court of Human Rights had laid down in respect of art 5 of the convention, namely that art 5(1) contemplated individual liberty in the sense of the physical liberty of the person, that deprivation of liberty might take forms other than classic detention in prison or strict arrest and that there was a distinction as a question of degree or intensity between deprivation of liberty and restriction of movement and freedom of a person to choose his residence. A court had to assess the impact of the measures in question on a person in the situation of the person subject to them. The Court of Human Rights had insisted that account should be taken of a whole range of factors such as the nature,

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duration, effects and manner of execution or implementation of the penalty or measure in question. In the instant case, there had been no error in the reasoning of the judge or the Court of Appeal (see [12]–[19], [23], [24], [57]–[63], [90], [91], [93]–[95], [102]–[105], [109], below); Guzzardi v Italy (1980) 3 EHRR 333 and Engel v Netherlands (1976) 1 EHRR 647 adopted.

(2) (Lord Hoffmann dissenting) Section 1(2) of the 2005 Act provided that the court on the application of the Secretary of State had power to make an order imposing obligations that were or included derogating obligations, while the power to make a control order was exercisable by the Secretary of State ‘except in the case of an order imposing obligations that are incompatible with the individual’s right to liberty under article 5’ of the convention. Thus the Secretary of State had no power to make an order that imposed any obligation incompatible with art 5. An administrative order made without power to make it was a nullity. The defects in the orders could not be cured by amending specific obligations, since what the Secretary of State had made was a series of orders, applicable to the individuals named, and those were what he had no power to make. Accordingly there had been no alternative but to quash the orders in their entirety. The appeal would therefore be dismissed (see [26], [27], [29], [64], [85], [109], [110], below).

Per Lord Brown of Eaton-under-Heywood. Taking account of the conditions and circumstances in the various control order cases, a core element of confinement which does not exceed 16 hours a day is insufficiently stringent as a matter of law to effect a deprivation of liberty (see [105], [108], below).

Notes

For the right to liberty and the security of the person, see 8(2) Halsbury’s Laws (4th edn reissue) para 127, and for the power to make control orders, see 11(1) Halsbury’s Laws (4th edn) (2006 reissue) para 454.

For the Human Rights Act 1998, Sch 1, Pt I, art 5, see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 705.

For the Prevention of Terrorism Act 2005, ss 1, 2, see 12(2) Halsbury’s Statutes (4th edn) (2005 reissue) 1852, 1854.

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Page 616 of [2008] 1 All ER 613

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Airey v Ireland (1979) 2 EHRR 305, [1979] ECHR 6289/73, ECt HR.

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Page 617 of [2008] 1 All ER 613

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Fitt v UK (2000) 30 EHRR 480, [2000] ECHR 29777/96, ECt HR.

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Jasper v UK (2000) 30 EHRR 441, [2000] ECHR 27052/95, ECt HR.

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Klass v Germany (1978) 2 EHRR 214, [1978] ECHR 5029/71, ECt HR.

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Lakato v Czech Republic App No 42058/98 (23 October 2001, unreported), ECt HR.

Lambeth London BC v Kay, Leeds City Council v Price [2006] UKHL 10, [2006] 4 All ER 128, [2006] 2 AC 465, [2006] 2 WLR 570.

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Lawless v Ireland (No 3) (1961) 1 EHRR 15, [1961] ECHR 332/57, ECt HR.

Leander v Sweden (1987) 9 EHRR 433, [1987] ECHR 9248/81, ECt HR.

Lloyd v McMahon [1987] 1 All ER 1118, [1987] AC 625, [1987] 2 WLR 821, HL.

Lobo Machado v Portugal (1996) 23 EHRR 79, [1996] ECHR 15764/89, ECt HR.

Lucà v Italy (2001) 36 EHRR 46, [2001] ECHR 33354/96, ECt HR.

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M v Italy (1991) 70 DR 59, E Com HR.

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Mantovanelli v France (1997) 24 EHRR 370, ECt HR.

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MK v Secretary of State for the Home Dept (5 September 2006, unreported), SIAC.

Murray v Ministry of Defence [1988] 2 All ER 521, [1988] 1 WLR 692, HL.

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O’Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237, [1982] 3 WLR 1096, HL.

Official Receiver v Stern (No 2) [2001] EWCA Civ 1787, [2002] 1 BCLC 119.

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Olivieira v Netherlands (2000) 30 EHRR CD 258

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Page 621 of [2008] 1 All ER 613

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Appeal

The Secretary of State for the Home Department appealed with permission of the House of Lords Appeal Committee given on 29 January 2007 from the decision of the Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) on 1 August 2006 ([2006] EWCA Civ 1141, [2007] QB 446) dismissing the Secretary of State’s appeal from the decision of Sullivan J on 28 June 2006 ([2006] EWHC 1623 (Admin), [2006] All ER (D) 330 (Jun)) that

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obligations imposed on JJ, KK, GG, HH, NN and LL (the respondents), in control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 deprived the respondents of their liberty in breach of art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) and that the control orders should be quashed. JUSTICE appeared as an intervener. The facts are set out in the opinion of Lord Bingham of Cornhill.

Ian Burnett QC, Philip Sales QC, Tim Eicke, Cecilia Ivimy and Andrew O’Connor (instructed by Treasury Solicitor) for the Secretary of State.

Manjit Gill QC and Barnabas Lams (instructed by Lawrence & Co) for JJ.

Ben Emmerson QC and Raza Husain (instructed by Gladstone Solicitors, Derby) for GG and KK.

Edward Fitzgerald QC, Keir Starmer QC and Stephanie Harrison (instructed by Tyndallwoods) for HH and NN.

Michael Fordham QC and Tom Hickman (instructed by Clifford Chance) for JUSTICE.

Michael Supperstone QC and Judith Farbey (instructed by the Special Advocates Support Office) as special advocates.

LL did not appear.

Their Lordships took time for consideration.

31 October 2007. The following opinions were delivered.

LORD BINGHAM OF CORNHILL.

[1] My Lords, in a judgment given on 28 June 2006 ([2006] EWHC 1623 (Admin), [2006] All ER (D) 330 (Jun)) Sullivan J held that obligations imposed on the respondents in control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 deprived the respondents of their liberty in breach of art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) and that the orders should be quashed. The Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) dismissed the Secretary of State’s appeal against that decision on 1 August 2006 ([2006] EWCA Civ 1141, [2007] QB 446, [2006] 3 WLR 866). On this appeal to the House the Secretary of State challenges both limbs of the decisions below, contending that the obligations imposed on the respondents did not deprive them of their liberty and that, if they did, the orders should have been modified and not quashed.

[2] This is one of four appeals heard by the House together. The facts of the four appeals are different. Some issues are common to more than one appeal, and some are not. Separate judgments were given below at first instance and (in three of the appeals) by the Court of Appeal. It is convenient to give separate judgments in this appeal, in the appeal involving E (see Secretary of State for the Home Dept v E [2007] UKHL 47, [2008] 1 All ER 699, [2007] 3 WLR 720), and in the appeals involving AF and MB (see Secretary of State for the Home Dept v MB, Secretary of State for the Home Dept v AF [2007] UKHL 46, [2008] 1 All ER 657, [2007] 3 WLR 681), making such cross-reference as is necessary to avoid repetition.

[3] There are six respondents, to whom I shall refer as ‘the controlled persons’ save where it is necessary to distinguish between them. Five of the controlled persons are Iraqi nationals. The sixth (LL, who has absconded and is not

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represented in this appeal) is either an Iraqi or an Iranian national. Three have leave to remain in this country and three have temporary admission. All are suspected by the Secretary of State to have been involved in terrorism-related activities and are assessed to pose a threat to the public within the United Kingdom or overseas. None has been charged with or prosecuted for any offence related to terrorism.

[4] The Prevention of Terrorism Act 2005 was enacted on 11 March 2005. It repealed Pt 4 of the Anti-terrorism, Crime and Security Act 2001, including s 23, which the House had found to be incompatible with arts 5 and 14 of the convention in A v Secretary of State for the Home Dept, X v Secretary of State for the Home Dept [2004] UKHL 56, [2005] 3 All ER 169, [2005] 2 AC 68, [2005] 2 WLR 87. The purpose of the 2005 Act, as expressed in the long title, was—

‘to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity . . .’

At the forefront of his argument the Secretary of State stresses the grave threat presented to the public by the criminal activity of terrorists; the imperative duty of democratic governments to do what can lawfully be done to protect the public against that threat; and the balance inherent in the convention between the rights of individuals and the rights of the community as a whole. These considerations provide the important backdrop to these appeals, but they need not be elaborated since they are not controversial.

[5] As will be seen at [7], below, the 2005 Act is drafted with express reference to art 5 of the convention. Article 5 provides: ‘Everyone has the right to liberty and security of person.' The article continues: ‘No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. There follows a list ((a)–(f)) of cases in which a person may be deprived of his liberty in accordance with a procedure prescribed by law. The cases listed are those in which any democratic state is likely to exercise a power to detain: on sentence following conviction, breach of a court order, arrest on suspicion of crime, infectious disease, mental illness, unlawful entry, pending action to deport or extradite, and so on. This list, as the European Court of Human Rights has repeatedly emphasised, is exhaustive and is to be narrowly interpreted (see, for instance, Engel v Netherlands (1976) 1 EHRR 647 at 669 (para 57); Kurt v Turkey (1998) 5 BHRC 1 at 26–27 (para 122); Mancini v Italy App No 44955/98 (2 August 2001, unreported), para 23. This reflects the importance attached by the convention to the right to liberty and security. Thus a person may not be deprived of his liberty unless his case falls within one of the listed classes of case. That proposition, however, is subject to one qualification. By art 15 of the convention (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969), given domestic effect by ss 14 and 16 of the 1998 Act, a state party to the convention may derogate from art 5, subject to certain formalities:

‘(1) In time of war or other public emergency threatening the life of the nation . . . to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law’.

It is common ground that none of the cases subject to this appeal fall within any of the categories listed in (a)–(f) of art 5 of the convention, and the United Kingdom has not derogated from its obligation to comply with that article. It

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necessarily follows that if, as the controlled persons (with the support of JUSTICE) contend and the Secretary of State strongly denies, the effect of the obligations imposed on the controlled persons under the control orders is to deprive them of their liberty, such orders are inconsistent with art 5 of the convention.

THE 2005 ACT

[6] The core of the 2005 Act is found in s 1. Subsection (1) defines a control order as meaning ‘an order [made] against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism’. Subsection (4) specifies the obligations which a control order ‘may include, in particular’. It is not therefore an exclusive list. But it is a detailed list, containing 16 potential obligations running from (a) to (p). It is unnecessary to recite the full list. Among the listed obligations are:

‘(d) a restriction on his association or communications with specified persons or with other persons generally; (e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence; (f) a prohibition on his being at specified places or within a specified area at specified times or on specified days; (g) a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom . . . (j) a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access; (k) a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened . . .’

A person who, without reasonable excuse, contravenes an obligation imposed on him by a control order is guilty of an offence punishable, on conviction on indictment to imprisonment for a term of up to five years (see ss 9(1) and (4)(a)).

[7] The Act draws a categorical distinction between what it calls a ‘derogating control order’ and what it calls a ‘non-derogating control order’. The former is defined in s 15(1) to mean ‘a control order imposing obligations that are or include derogating obligations’ and a ‘derogating obligation’ is defined in s 1(10) to mean—

‘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 . . .’

A ‘non-derogating control order’ is defined in s 15(1) to mean ‘a control order made by the Secretary of State’: it is one that does not consist of or include derogating obligations. Thus the premise of the Act is that control orders made under s 1 of the Act and including obligations within the scope of s 1(4) may, or of course may not, be incompatible with the controlled person’s right to liberty under art 5 of the convention.

[8] The power to make a control order against an individual, in the case of an order imposing obligations that are or include derogating obligations, is exercisable by the court on an application by the Secretary of State (see s 1(2)(b)); save where the order imposes obligations that are incompatible with the

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individual’s right to liberty under art 5, the power is exercisable by the Secretary of State (see s 1(2)(a)), with the permission of the court (see s 3(1)(a)) save where the urgency of the case requires an order to be made without permission (see s 3(1)(b)). In each case there is a preliminary hearing by the court, but the procedure differs (s 4(1) applies to derogating control orders, s 3(1)(a), (2), (3), (5) and (6) to non-derogating control orders). The threshold conditions for making an order are different. At the preliminary hearing, the court may make a derogating control order against the individual in question under s 4(3) if it appears to the court—

‘(a) that there is material which (if not disproved) is capable of being relied on by the court as establishing that the individual is or has been involved in terrorism-related activity; (b) that there are reasonable grounds for believing that the imposition of obligations on that individual is necessary for purposes connected with protecting members of the public from a risk of terrorism; (c) that the risk arises out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and (d) that the obligations that there are reasonable grounds for believing should be imposed on the individual are or include derogating obligations of a description set out for the purposes of the designated derogation in the designation order.’

By contrast, under s 2(1) the Secretary of State may make a non-derogating control order against an individual if he—

‘(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.’

At the preliminary hearing before such an order is made, or immediately after in case of urgency, the court’s function is to consider whether the Secretary of State’s decision is ‘obviously flawed’ (see s 3(2),(3)).

[9] On the full hearing the function of the court is again different. In the case of a derogating control order the test reflects that set out in s 4(3) quoted above: the court may confirm the order, with or without modifications, only if (s 4(7)):

‘(a) it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity; (b) it considers that the imposition of obligations on the controlled person is necessary for purposes connected with protecting members of the public from a risk of terrorism; (c) it appears to the court that the risk is one arising out of, or is associated with, a public emergency in respect of which there is a designated derogation from the whole or a part of Article 5 of the Human Rights Convention; and (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 derogation order.’

In the case of a non-derogating order the function of the court is to decide, applying the principles applicable on an application for judicial review, whether any relevant decision of the Secretary of State was ‘flawed’ (see s 3(10)(11)).

[10] A derogating control order has effect for six months unless revoked or renewed (see s 4(8)), provided the derogation remains in force and the

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designation order was not made more than 12 months earlier (see s 6(1)), and may be revoked or modified by the court (see s 7(5)–(7)). A non-derogating control order has effect for a period of 12 months (see s 2(4)), renewable indefinitely for 12 months at a time if the Secretary of State considers that the conditions for making it continue to obtain (see s 2(6)). It may be revoked or modified by the Secretary of State (see s 7(1), (2), but he may not make any modification which converts a non-derogating control order into a derogating control order (see s 7(3)). A power of arrest exists in relation to derogating but not non-derogating control orders (see s 5).

[11] In some respects the Act does not distinguish between the two types of order. Thus the duty on the Secretary of State and the chief officer of police in relation to prosecution, considered in more detail in E’s case [2008] 1 All ER 699, is the same in the two cases (see s 8), as are the criminal consequences of contravening an obligation (see s 9). The procedural provisions laid down in the Schedule to the Act apply to both types of control order proceedings (see s 11), although the rules made pursuant to the rule-making power conferred by the Act distinguish between derogating control orders (CPR 76, section II) and non-derogating control orders (section III). No appeal lies to the Court of Appeal from any determination of the court in control order proceedings, except on a question of law (see s 11(3)).

DEPRIVATION OF LIBERTY

[12] In ordinary parlance a person is taken to be deprived of his or her liberty when locked up in a prison cell or its equivalent. This common sense approach is, unsurprisingly, reflected in the convention jurisprudence. Thus in Engel v Netherlands (1976) 1 EHRR 647 at 669 (para 58), the European Court has recognised that ‘In proclaiming the “right to liberty”, paragraph 1 of Article 5 is contemplating individual liberty in its classic sense, that is to say the physical liberty of the person’, a ruling repeated in Guzzardi v Italy (1980) 3 EHRR 333 at 362–363 (para 92). It has also referred to ‘classic detention in prison or strict arrest’ (at 363 (para 95)). Further, the court has recognised the distinction between deprivation of liberty and restriction of movement and freedom of a person to choose his residence. The latter are the subject of art 2 of the Fourth Protocol to the convention, a provision which the United Kingdom has not ratified but which is accepted as relevant in interpreting the scope of the prohibition in art 5.

[13] It is, however, common ground between the parties that the prohibition in art 5 on depriving a person of his liberty has an autonomous meaning: that is, it has a Council of Europe-wide meaning for purposes of the convention, whatever it might or might not be thought to mean in any member state. For guidance on the autonomous convention meaning to be given to the expression, national courts must look to the jurisprudence of the European Commission and the European Court in Strasbourg, which United Kingdom courts are required by s 2(1) of the 1998 Act to take into account. But that jurisprudence must be used in the same way as other authority is to be used, as laying down principles and not mandating solutions to particular cases. It is, as observed in R (on the application of Gillan) v Metropolitan Police Comr [2006] UKHL 12 at [23], [2006] 4 All ER 1041 at [23], [2006] 2 AC 307, perilous to transpose the outcome of one case to another where the facts are different. The case law shows that the prohibition in art 5 has fallen to be considered in a very wide range of factual situations. It is to the principles laid down by the court in Engel v Netherlands and

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Guzzardi v Italy particularly, reiterated by the court on many occasions (see, for instance, Ashingdane v UK (1985) 7 EHRR 528 at 541 (para 41), Amuur v France (1996) 22 EHRR 533 at 556 (para 42)), that national courts must look for guidance.

[14] A series of Strasbourg decisions establishes that 24-hour house arrest has been regarded as tantamount to imprisonment and so as depriving the subject of his or her liberty (see, for example, Mancini v Italy App No 44955/98 (2 August 2001, unreported), para 17; Vachev v Bulgaria [2004] ECHR 42987/98, para 64; NC v Italy [2002] ECHR 24952/94, para 33; Nikolova v Bulgaria (No 2) [2004] ECHR 40896/98, para 60). In Trijonis v Lithuania App No 2333/02 (17 March 2005, unreported) the applicant’s complaint in relation to a period of 24-hour home arrest was held to be admissible. In Pekov v Bulgaria [2006] ECHR 50358/99, para 73, it was argued by the government that the house arrest of the applicant did not deprive him of his liberty since the monitoring authorities were far away, so that he could leave his house with impunity, but this was not an argument which the court accepted. The decision of the High Court of Justiciary in McDonald v Dickson (Procurator Fiscal, Elgin) 2003 SCCR 311 at [17], that the appellant had not been deprived of his liberty during six days of 22-hour house arrest because he had not been subject to any physical confinement or restraint, cannot, in my respectful opinion, be reconciled with this authority.

[15] Continuous house arrest may reasonably be regarded as resembling, save as to the place of confinement, conventional modes of imprisonment or detention. But the court has made clear (Guzzardi v Italy (1980) 3 EHRR 333 at 363–364 (para 95)) that deprivation of liberty may take numerous forms other than classic detention in prison or strict arrest. The variety of such forms is being increased by developments in legal standards and attitudes, and the convention must be interpreted in the light of notions prevailing in democratic states. What has to be considered is the concrete situation of the particular individual (Engel v Netherlands (1976) 1 EHRR 647 at 669 (para 59); Guzzardi v Italy (1980) 3 EHRR 333 at 362–363 (para 92); HL v UK (2004) 81 BMLR 131 at 162 (para 89)). Thus the task of a court is to assess the impact of the measures in question on a person in the situation of the person subject to them. The Strasbourg court has been true to this guiding principle. Thus in Engel v Netherlands (1976) 1 EHRR 647 at 669 (para 59), the court recognised that—

‘A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.’

In Ashingdane v UK (1985) 7 EHRR 528 at 536, 543–544 (paras 24, 47, 48) the applicant had been transferred from a high security mental hospital to an ordinary psychiatric hospital but was, it seems, still held to be detained and so deprived of his liberty (albeit legitimately) during the latest phase of his stay in the psychiatric hospital when he was on an open ward, was free to make regular unescorted visits to his family, was going home every weekend from Thursday to Sunday and was free to leave the hospital as he pleased on Monday to Wednesday provided only that he returned to his ward at night.

[16] Thus the court has insisted that account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution or implementation of the penalty or measure in question (see Engel v Netherlands (1976) 1 EHRR 647 at 669 (para 59); Guzzardi v Italy (1980) 3 EHRR 333 at 362–363 (paras 92, 94)). There may be no deprivation of liberty if a single feature of an

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individual’s situation is taken on its own but the combination of measures considered together may have that result (at 363–364 (para 95)). Consistently with this approach, account was taken (at 342–345 (paras 23–42)) of a number of aspects of the applicant’s stay on the island of Asinara: the locality; the possibilities of movement; his accommodation; the availability of medical attention; the presence of his family; the possibilities of attending worship; the possibilities of obtaining work; the possibilities for cultural and recreational activities; and communications with the outside. In the result, the court on the facts attached weight (at 363–364 (para 95)) to the small area of the island open to him, the dilapidated accommodation, the lack of available social intercourse, the strictness of the almost constant supervision, a nine-hour overnight curfew, the obligation on him to report to the authorities twice a day and inform them of any person he wished to telephone, the need for consent to visit Sardinia on the mainland, the liability to punishment by arrest for breach of any obligation and the 16-month period during which he was subject to these restrictions. Some of these matters plainly fall within the purview of other articles of the convention. Because account must be taken of an individual’s whole situation it seems to me inappropriate to draw a sharp distinction between a period of confinement which will, and one which will not, amount to a deprivation of liberty, important though the period of daily confinement will be in any overall assessment.

[17] The Strasbourg court has realistically recognised (at 363 (para 93) that ‘The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance’. There is no bright line separating the two. The court acknowledges the difficulty attending the process of classification in borderline cases, suggesting that in such cases the decision is one of pure opinion or what may, rather more aptly, be called judgment.

[18] In assessing the impact of the measures in question on a person in the situation of the person subject to them, the court has assessed the effect of the measures on the life the person would have been living otherwise. Thus no deprivation of liberty was held to result from light arrest of serving soldiers (Engel v Netherlands (1976) 1 EHRR 647 at 670 (para 61)) since they continued to perform their duties and remained more or less within the ordinary framework of their army life. The decisions of the court on curfews during the night hours is consistent with that approach. The curfew from 9 pm to 7 am imposed in Raimondo v Italy (1994) 18 EHRR 237 and the obligation imposed on him not to leave home without informing the police did not prevent him living a normal life and did not deprive him of his liberty. In Labita v Italy [2000] ECHR 26772/95 the applicant made no complaint of deprivation of liberty during a period when he was subject to a curfew from 8 pm to 6 am. In Ciancimino v Italy (1991) 70 DR 103 the applicant was obliged to live in a nominated commune which he was not permitted to leave, was obliged to report to the police daily at 11 am and was subject to a curfew from 8 pm to 7 am, but this did not amount to a deprivation of liberty. The same result followed in Trijonis v Lithuania App No 2333/02 (17 March 2005, unreported), in which, from 11 January 2001 until 6 May 2002, the applicant was permitted to be at his workplace during weekdays, subject to a curfew at his home from 7 pm to 7 am on weekdays and for the whole day at the weekend. The court pointed out, contrasting the case with Guzzardi v Italy (1980) 3 EHRR 333, that the applicant was allowed to spend time at work as well as at home during this period.

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[19] It is not, I think, suggested that the Strasbourg court has had to rule on any case at all closely comparable with the present. It is inappropriate to seek to align this case with the least dissimilar of the reported cases. The task of the English courts is to seek to give fair effect, on the facts of this case, to the principles which the Strasbourg court has laid down.

THE OBLIGATIONS IMPOSED ON THE CONTROLLED PERSONS

[20] The obligations imposed on the controlled persons by the non-derogating control orders made by the Secretary of State in each of their respective cases were in more or less standard form. Lord Carlile of Berriew QC, the independent reviewer appointed under s 14 of the Act, annexed to his First Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005 (February 2006) (the report) a pro forma of the schedule of obligations ‘imposed on most but not quite all of the controlees so far’ (report, para 42), and Sullivan J annexed to his judgment a list, in almost identical terms, of the obligations imposed on the controlled persons in this case. An obligation was imposed under almost all the heads specifically identified in the paragraphs of s 1(4) of the Act, and some under heads not so identified. The general effect of the obligations was helpfully summarised by the Court of Appeal ([2007] QB 446 at [4]):

‘The obligations imposed by the control orders are set out in annex 1 to Sullivan J’s judgment. They are essentially identical. Each respondent is required to remain within his “residence” at all times, save for a period of six hours between 10 am and 4 pm. In the case of GG the specified residence is a one-bedroom flat provided by the local authority in which he lived before his detention. In the case of the other five respondents the specified residences are one-bedroom flats provided by the National Asylum Support Service. During the curfew period the respondents are confined in their small flats and are not even allowed into the common parts of the buildings in which these flats are situated. Visitors must be authorised by the Home Office, to which name, address, date of birth and photographic identity must be supplied. The residences are subject to spot searches by the police. During the six hours when they are permitted to leave their residences, the respondents are confined to restricted urban areas, the largest of which is 72 square kilometres. These deliberately do not extend, save in the case of GG, to any area in which they lived before. Each area contains a mosque, a hospital, primary health care facilities, shops and entertainment and sporting facilities. The respondents are prohibited from meeting anyone by pre-arrangement who has not been given the same Home Office clearance as a visitor to the residence.’

It may be added that the controlled persons were required to wear an electronic tag and to report to a monitoring company on first leaving their flat after a curfew period and on returning to it before a curfew period. They were forbidden to use or possess any communications equipment of any kind save for one fixed telephone line in their flat maintained by the monitoring company. They could attend a mosque of their choice if it was in their permitted area and approved in advance by the Home Office. Some of the controlled persons are not permitted, because of their immigration status, to work; those who are permitted have not done so in the six-hour period between 10 am and 4 pm. They received benefits

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of £30–£35 per week, mostly in vouchers, but in JJ’s case £57·45. A request by JJ to study English at a college outside his area was refused.

[21] In the course of a careful and detailed judgment Sullivan J reviewed the authorities mentioned above, and other authorities: in particular R (on the application of the Secretary of State for the Home Dept) v Mental Health Review Tribunal [2002] EWCA Civ 1868, [2002] All ER (D) 307 (Dec), where attention is drawn to the significance of the purpose for which restrictions are imposed, distinguishing between those which are for the benefit of the subject and those which are for some other purpose. He regarded ([2006] EWHC 1623 (Admin) at [48]) the orders made in these cases, although in force for only 12 months at a time, as of indefinite duration. He confined himself (at [57], [58]) to facts which were agreed or were apparent on the face of the control orders. He took as his starting point (at [60]–[62]) the confinement of the controlled persons for 18 hours each day of the week in a small flat where (save in the case of GG) they had not previously lived in a significantly different location. He noted that the controlled persons were all single men, and accepted (at [66]) that the requirement to supply the name, address, date of birth and photographic identification to obtain prior Home Office approval of anyone wishing to visit the flat for social purposes during curfew hours deterred all but the most courageous of visitors. He expressed his conclusion at para [73] of his judgment:

‘Drawing these threads together, and bearing in mind the type, duration, effects and manner of implementation of the obligations in these control orders, I am left in no doubt whatsoever that the cumulative effect of the obligations has been to deprive the respondents of their liberty in breach of art 5 of the convention. I do not consider that this is a borderline case. The collective impact of the obligations in annex 1 could not sensibly be described as a mere restriction upon the respondents’ liberty of movement. In terms of the length of the curfew period (18 hours), the extent of the obligations, and their intrusive impact on the respondents’ ability to lead anything resembling a normal life, whether inside their residences within the curfew period, or for the six-hour period outside it, these control orders go far beyond the restrictions in those cases where the European Court of Human Rights has concluded that there has been a restriction upon but not a deprivation of liberty.’

He regarded the controlled persons’ concrete situation (see [74]) as the antithesis of liberty and more akin to detention in an open prison.

[22] At the outset of his judgment (at [3]) the judge had noted Lord Carlile’s description (report, paras 42, 43) of the pro forma obligations as ‘On any view . . . extremely restrictive . . . They fall not very far short of house arrest, and certainly inhibit normal life considerably.' He found reassurance (at [80]) for his conclusion in the observations of the House of Lords and House of Commons Joint Committee on Human Rights in their Twelfth Report of the Session 2005–2006 (HL Paper 122, HC Paper 915) (14 February 2006) (para 38), addressing the pro forma obligations without reference to any specific case:

‘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

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a way which is incompatible with Article 5(1) in the absence of a derogation from that Article.’

The judge also noted (at [82]) the recognition by Mr Alvaro Gil-Robles, the Council of Europe Commissioner for Human Rights, in his report on his visit to the United Kingdom (8 June 2005) (para 17), of the difficulty under the 2005 Act of distinguishing between derogating and non-derogating obligations:

‘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) must inevitably be determined on a case-by-case basis . . .’

[23] On his appeal to the Court of Appeal the Secretary of State contended, as he was bound to do, that the judge had erred in law. He identified ([2007] QB 446 at [7]) five errors of principle: that the judge had identified liberty too broadly, as freedom to do as one wishes; that he had wrongly had regard to the extent to which the obligations interfered with ‘normal life’; that he had wrongly had regard to restrictions on human rights protected by other specific articles of the convention; that he had extended the meaning of liberty beyond that laid down in Guzzardi v Italy; and that he had concentrated excessively on the individual features of the idiosyncratic cases. The Court of Appeal reviewed these criticisms seriatim, but found no merit in any of them. The judge had clearly and correctly taken the confinement of the controlled persons to a small flat for 18 hours a day as his starting point (see [11]). He had properly had regard to other features of a regime at the heart of which was physical confinement (see [19]). At the end of the day the judge had to make a value judgment as to whether, having regard to the ‘the type, duration, effects and manner of implementation’ of the control orders, they effected a deprivation of liberty (see [22]). The judge’s appraisal of the likely duration of the orders, although based on a false premise, was realistic. The Court of Appeal (at [23]) shared the judge’s view that the facts of these cases clearly fell on the wrong side of the dividing line and amounted to a deprivation of liberty contrary to art 5.

[24] The Secretary of State’s argument on appeal, presented with skill and moderation, repeated, no doubt inevitably, the contentions advanced to and rejected by the Court of Appeal. It is unnecessary to rehearse them since they cannot in my opinion survive a careful reading of the judge’s judgment and I would reject them for the reasons which the Court of Appeal gave. No legal error in the reasoning of the judge or the Court of Appeal is shown, and it is not for the House to make a value judgment of its own. I would, however, add that on the agreed facts of these individual cases I would have reached the same conclusion. 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

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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, much larger than that open to Mr Guzzardi. 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 of 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.

REMEDY

[25] The Secretary of State submitted that if, contrary to his submission, the effect of these control orders was to deprive the controlled persons of their liberty in breach of art 5, the courts below were wrong to quash the orders. They should instead have quashed one or more obligations imposed by the orders or directed the Secretary of State to modify them. This argument depended on s 3(12) of the Act, which provides that if the court determines, at a hearing pursuant to directions given at a preliminary hearing, 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.’

Here, it was said, the court should not have quashed the whole orders, which had detrimental practical results (as when LL absconded before a new order could be made).

[26] Sullivan J did not accept this argument, holding ([2006] EWHC 1623 (Admin) at [92]) that since the Secretary of State had no power to make the order, there was nothing to revoke. The Court of Appeal questioned ([2007] QB 446 at [26]) whether the Secretary of State’s decision was flawed within the meaning of s 3(10) and (12), but found (at [27]) the judge’s reasons for quashing the orders compelling. This was also the conclusion reached by Beatson J in Secretary of State for the Home Dept v E [2007] EWHC 233 (Admin) at [310], [2007] HRLR 472 at [310]. Ouseley J in Secretary of State for the Home Department v AF [2007] EWHC 651 (Admin) at [89], [2007] All ER (D) 21 (Apr) at [89], having found the control order under review to deprive the controlled person of his liberty, similarly held the order to be a nullity.

[27] This conclusion is in my opinion irresistible. As recorded at [8], above, s 1(2) of the Act provides that the court on the application of the Secretary of State has power to make an order imposing obligations that are or include derogating obligations, while the power to make a control order is exercisable by the Secretary of State ‘except in the case of an order imposing obligations that are incompatible with the individual’s right to liberty under Article 5’ of the convention. Thus the Secretary of State has no power to make an order that imposes any obligation incompatible with art 5. An administrative order made without power to make it is, on well-known principles, a nullity (see the recent decision of the Privy Council in McLaughlin v Governor of the Cayman Islands [2007]

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UKPC 50, [2007] 1 WLR 2839). The defects in the orders cannot be cured by amending specific obligations, since what the Secretary of State made was a series of orders, applicable to the individuals named, and these are what he had no power to make. It is true that, because public law remedies are generally discretionary, the court may in special circumstances decline to quash an order, despite finding it to be a nullity (McLaughlin’s case at [16]). But no such circumstances exist here, and it would be contrary to principle to decline to quash an order, made without power to make it, which had unlawfully deprived a person of his liberty.

[28] This conclusion makes it unnecessary to decide, in this case, whether control order proceedings involve the determination of a criminal charge within the meaning of art 6(1) of the convention, a question discussed at [13]–[24] of my opinion in Secretary of State for the Home Dept v MB, Secretary of State for the Home Dept v AF [2008] 1 All ER 657, [2007] 3 WLR 681.

[29] I would dismiss this appeal with costs.

LORD HOFFMANN.

[30] My Lords, the questions in these appeals are whether the terms of certain control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 are compatible with art 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) and whether the procedure by which they were made is compatible with art 6.

[31] The long title of the 2005 Act is:

‘An Act to provide for the making against individuals involved in terrorism-related activity of orders imposing obligations on them for purposes connected with preventing or restricting their further involvement in such activity. . .’

Section 1(1) defined a ‘control order’ as ‘an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism’. The power to make the orders is contained in s 2(1):

‘The Secretary of State may make a control order against an individual if he—(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.’

[32] Section 1(4) sets out, in 16 lettered paragraphs, the various kinds of obligations which a control order may impose. Since there is no dispute that all the obligations in these appeals fell within the statutory powers, it may be more useful, instead of quoting s 1(4), to set out the terms of one of the most restrictive orders in issue, which was made against an individual referred to as LL. He lives in a one-bedroom flat provided by the National Asylum Support Service in an inner London borough, having arrived in the United Kingdom as an asylum seeker.

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[33] The order provides that he shall:

(1) at all times wear an electronic monitoring tag;

(2) remain in his flat at all times except from 10 am until 4 pm;

(3) report to the monitoring company twice a day;

(4) allow the police any time to search his flat;

(5) not receive any private visitors except with the prior consent of the Home Office, supplying them with the visitor’s name, address and photograph;

(6) not meet anyone by prior arrangement outside his flat except with Home Office consent and not attend any pre-arranged gatherings except to attend at one mosque approved by the Home Office;

(7) not associate or communicate with five named individuals against whom control orders have also been made;

(8) not use a mobile telephone or internet connection;

(9) not go outside a designated area substantially the size of an inner London borough;

(10) surrender his passport;

(11) not maintain more than one bank account of which details have been notified to the Home Office;

(12) not transfer money or goods abroad without the consent of the Home Office.

[34] The purpose of these obligations is to make it easier for the security services to keep a close watch on what LL is doing and inhibit his participation in terrorist conspiracies. They are plainly a substantial interference with his privacy and freedom of movement. They engage art 8 of the convention (‘Everyone has the right to respect for his private and family life, his home and his correspondence’) and would engage art 2 of the Fourth Protocol (‘Everyone . . . shall . . . have the right to liberty of movement’) if the United Kingdom had ratified that Protocol. They may well engage arts 9, 10 and 11 of the convention (freedom of religion, freedom of expression and freedom of association) as well. In these appeals, however, no complaint is made on any of these grounds. The reason is that all these rights are qualified. They are subject to ‘such . . . restrictions . . . as are prescribed by law and are necessary in a democratic society, in the interests of national security . . .' And there can be no doubt that the protection of the state and its people against terrorism is necessary in a democratic society. If, therefore, complaint were made under any of these qualified rights, the court would have to consider whether the particular restrictions could be justified as necessary and proportionate for the purpose of protecting the public.

[35] But your Lordships have not been invited to carry out any such exercise. Instead, LL and the others allege that the orders infringe the rights under art 5(1), which says that ‘No one shall be deprived of his liberty’, subject to various exceptions such as imprisonment for a criminal offence, none of which apply here. The point about the right not to be deprived of one’s liberty under art 5(1) is that, subject to the exceptions, it is unqualified. Such is the revulsion against detention without charge or trial, such is this country’s attachment to habeas corpus, that the right to liberty ordinarily trumps even the interests of national security. Only in time of war or ‘public emergency threatening the life of the nation’ may the government derogate from the convention, suspend habeas corpus and imprison people without trial.

[36] There has been no derogation and the question is therefore quite simply whether the effect of the obligations imposed under the control order is to

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deprive LL and the others of their liberty. It is in my opinion clear from the unqualified nature of the right to liberty and its place in the scheme of the other qualified convention rights that it deals with literal physical restraint. The right is not infringed by restrictions on liberty in a broader sense, such as restrictions on the right to communicate, associate or pray with others, each of which is protected by a separate qualified right, or with restrictions on movement, which (so far as it is protected at all) is dealt with in art 2 of the Fourth Protocol. So much was stated by the European Court of Human Rights in Engel v Netherlands (1976) 1 EHRR 647. The court said (at 669 (para 58)) that the article contemplates ‘individual liberty in the classic sense, that is to say the physical liberty of the person’. The paradigm case of deprivation of liberty is being in prison, in the custody of a gaoler.

[37] Why is deprivation of liberty regarded as so quintessential a human right that it trumps even the interests of national security? In my opinion, because it amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits. The only human beings whom he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others.

[38] That is the paradigm case. Obviously, however, one may have some degree of deviation from the standard case without it ceasing to be to a deprivation of liberty. The question of what amounts to a deprivation of liberty was discussed by the European Court of Human Rights in Guzzardi v Italy (1980) 3 EHRR 333. Mr Guzzardi, suspected of association with organised crime, was sent for three years to live under ‘special supervision’ on the small island of Asinara, off the coast of Sardinia, which was then mainly used as a high security prison. (It is now a nature reserve.) About 2·5 sq km of the island lay outside the prison and was available for residence by people under special supervision like Mr Guzzardi. Virtually the only people living on that small piece of land were other internal exiles and carabinieri.

[39] The court decided by a majority of 11 votes to 7 that Mr Guzzardi had been deprived of his liberty. It is clear that both majority and minority regarded the case as very near the borderline. They agreed that the question was one of degree and, as the majority said (at 362–363 (para 92), that ‘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’. It is of course helpful to know that the question is one of degree and the matters which should be taken into account in answering it. But one also needs to be told what the question is. What is the criterion for deciding whether someone has been deprived of liberty or not? In the majority judgment that is not easy to discover. The nearest one gets is the statement (at 363–364 (para 95)) that ‘In certain respects the treatment complained of resembles detention in an “open prison” or committal to a disciplinary unit’. That suggests that the question was whether Mr Guzzardi’s situation approximated sufficiently closely to the paradigm case of imprisonment. In his dissenting judgment, Judge Matscher said (at 388 (para 3)) that deprivation of liberty was ‘a concept of some complexity, having a core which cannot be the subject of argument but which is surrounded by a “grey zone” where it is extremely difficult to draw the line’.

[40] That is the same idea that I have tried to express by saying that imprisonment is the paradigm case but that the concept may include situations which lack certain features of the paradigm case. There is a similar statement of

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principle in the dissenting judgment of Judge Sir Gerald Fitzmaurice (at 378–379 (para 6)), where he says that, taking into account the separate treatment of freedom of movement in art 2 of the Fourth Protocol:

‘The resulting picture is that Article 5 . . . guaranteed the individual against illegitimate imprisonment, or confinement so close as to amount to the same thing—in sum against deprivation of liberty stricto sensu.’

[41] I do not think that the majority would have disagreed with this statement of principle. It was approved by the Court of Appeal in R (on the application of Gillan) v Metropolitan Police Comr [2004] EWCA Civ 1067 at [45], [2005] 1 All ER 970 at [45], [2005] QB 388 and the Court of Appeal’s approach was approved by the House of Lords (see [2006] UKHL 12 at [25], [2006] 4 All ER 1041 at [25], [2006] 2 AC 307). The conclusion of the majority in Guzzardi v Italy that his situation was comparable with being in an open prison or a disciplinary unit suggests that they would have agreed with Sir Gerald Fitzmaurice’s criterion—‘confinement so close as to amount to the same thing’ but thought that ‘on balance’ the case fell on the wrong side of that line.

[42] It is therefore clear that the absence of certain features of the standard case of imprisonment—for example, locked doors or institutional surroundings—are not essential to the concept of deprivation of liberty. One may be deprived of liberty by being placed in an open prison where the doors are not locked but one will be punished if one leaves without permission. Or one may be imprisoned under house arrest in one’s own home (see Pekov v Bulgaria [2006] ECHR 50358/99). But that does not mean that these features are irrelevant in the assessment of whether one has been deprived of liberty. For example, to be placed under actual physical constraint for any length of time is, for that period, a deprivation of liberty. So in Gillan’s case, where the appellants had been stopped and searched, Lord Bingham of Cornhill said (at [25]) that they had been kept waiting rather than deprived of their liberty and distinguished the case of a person who is ‘arrested, handcuffed, confined or removed to any different place’. These amount to a deprivation of liberty. So, for example, in X v Austria (1979) 18 DR 154, the European Commission expressed the view that to detain someone forcibly, even for a short time for the purpose of taking blood for a test, was a deprivation of his liberty.

[43] However, when neither physical restraint nor removal from one’s home is present, the court takes a broader view. It does not confine its attention only to those times at which the person’s liberty is most restricted (for example, when he is subject to a curfew) but asks in more general terms, as in Guzzardi v Italy, whether his situation approximates sufficiently closely to being in prison. Thus in Trijonis v Lithuania App No 2333/02 (17 March 2005, unreported) the applicant was placed under ‘home arrest’ which required him to stay at home all weekend and between 7 pm and 7 am on workdays. The court said that his movements had been restricted but he had not been deprived of his liberty. It did not say that he was deprived of his liberty at the weekends, even though he could not then leave his house.

[44] My Lords, these cases seem to me to provide a clear enough statement and illustrations of the principle. In order to preserve the key distinction between the unqualified right to liberty and the qualified rights of freedom of movement, communication, association and so forth, it is essential not to give an over-expansive interpretation to the concept of deprivation of liberty. I remain of the opinion which I expressed in A v Secretary of State for the Home Dept, X v

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Secretary of State for the Home Dept [2004] UKHL 56 at [86]–[97], [2005] 3 All ER 169 at [86]–[97], [2005] 2 AC 68 that the power to derogate in peace time is a narrow one and that politically or religiously motivated violence, even threatening serious loss of life, does not necessarily ‘[threaten] the life of the nation’ within the meaning of the convention. The liberty of the subject and the right to habeas corpus are too precious to be sacrificed for any reason other than to safeguard the survival of the state. But one can only maintain this position if one confines the concept of deprivation of liberty to actual imprisonment or something which is for practical purposes little different from imprisonment. Otherwise the law would place too great a restriction on the powers of the state to deal with serious terrorist threats to the lives of its citizens. In the case of anything less than actual deprivation of liberty, the other rights which are undoubtedly engaged are in my opinion adequately protected by the requirement that any interference with them must be necessary and proportionate in the interests of national security.

[45] If one applies these principles to the facts of the present case, the answer seems to me to be clear. 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.

[46] Sullivan J ([2006] EWHC 1623 (Admin), [2006] All ER (D) 330 (Jun)) and the Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) ([2006] EWCA Civ 1141, [2007] QB 446) came to a different conclusion. But there is no indication in either judgment that they applied what in my opinion is the correct test. Lord Phillips of Worth Matravers CJ said (at [11]) that confining someone to his flat for 18 hours a day ‘makes most serious inroads on liberty’. So it does. He went on to agree with Sullivan J that one had to take into account that even when he was outside his flat, LL’s freedom was restricted as to how far he could go, whom he could arrange to meet and so on. That is true. Lord Phillips said (at [22]) that ‘At the end of the day’, Sullivan J 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’. But that formulation offers no guidance as to what would count as a deprivation of liberty. It simply says that the judge must take everything into account and decide the question, without saying what the question is. For these reasons I consider that the judge and the Court of Appeal not so much misdirected themselves as gave themselves no directions at all. If they had asked themselves whether the person in question could realistically be regarded as being for practical purposes in prison, I do not see how they could have arrived at the conclusion which they did.

[47] If I had considered that the combined effect of the obligations imposed by the control orders was a deprivation of liberty, I would have had to decide

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whether the control order should simply be quashed or whether different obligations which did not have the same effect could be substituted.

[48] The procedure for making a control order (except in cases of urgency) is that the Secretary of State must apply to the court for permission (see s 3(1)(a) of the 2005 Act). If the court gives permission it must give directions for a hearing ‘as soon as reasonably practicable after it is made’ (see s 3(2)(c)). In these cases, Sullivan J gave permission and directions for the hearing over which he then presided. Section 3(10) provides that at such a hearing 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.’

[49] Section 3(11) says that in deciding what constitutes a flawed decision, the court must apply the principles of judicial review. So the question for the court will be whether the decisions of the Secretary of State as to the matters mentioned in s 3(10) were unlawful on one of the normal grounds for judicial review. In the cases before the House, there is no challenge to the Secretary of State’s decision that the requirements of s 2(1)(a) and (b), which I have already quoted, were satisfied. The basis of the challenge is that the cumulative effect of the imposition of the obligations infringed the convention right under art 5(1). If that was the case, the imposition of the obligations would have been unlawful because contrary to the duty of the Secretary of State under s 6(1) of the 1998 Act.

[50] Section 3(12) then provides that if the court determines 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.’

[51] Section 3(10) makes it clear that the Secretary of State’s decision to impose each of the obligations is to be considered as a separate decision, although of course in determining whether it is flawed, the court may have to consider its cumulative effect in conjunction with the decisions to impose the other obligations. By s 3(12), if the court thinks that the decision to impose a particular obligation was unlawful, it may quash that obligation or direct the Secretary of State to modify it. The plain meaning of these provisions seems to be that if, for example (like my noble and learned friend Lord Brown of Eaton-under-Heywood), the court considers, that the obligations infringe art 5(1) because they require someone to remain indoors 18 hours a day but that they would be perfectly lawful if they only required him to remain indoors for 16 hours a day, the court is not obliged to quash the order. It can simply direct the Secretary of State to modify that particular obligation.

[52] Sullivan J decided nevertheless to quash the orders. He said (at [92]):

‘I have no doubt that the proper course is to quash these control orders under para (a) and that it would not be appropriate to direct the Secretary of State to revoke the orders or to modify the obligations imposed by them. A direction to revoke or to modify carries with it the implication that there is in existence an order which was lawfully made by the Secretary of State, but which has been found to be flawed for some reason. The short answer to the Secretary of State’s submission that he should be directed to modify these

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orders is that since he had no power to make them in the first place, there is simply nothing to revoke. The orders were made “without jurisdiction” in the narrow pre-Anisminic [see Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC 147] sense of lack of jurisdiction. Each order would therefore have been described as a “nullity”, when the distinction between jurisdictional and non-jurisdictional error of law was still of consequence . . .’

[53] I am afraid that I must respectfully disagree with this reasoning. If the order of the Secretary of State is found to be flawed on principles of judicial review, that means that it was not lawfully made. I do not understand how some unlawful orders can be more lawful than others or that it makes sense to invoke distinctions which English law abandoned 40 years ago in order to create different categories of unlawfulness. The power to direct the Secretary of State to revoke or modify the order does not imply that the order was lawfully made. On the contrary, the power arises only if the order is found to have been flawed, that is to say, not lawfully made. Thus the grounds on which the judge refused to consider the exercise of the powers conferred by s 3(12)(b) and (c) would simply write them out of the statute. But there seems to me no conceptual reason why Parliament should not say that if the exercise of a power is found to have been unlawful, the court shall have power to modify the order or direct the Secretary of State to modify it so as to make it lawful. The judge’s failure to accept that he had these powers means that in my opinion he did not properly exercise his discretion.

[54] The Court of Appeal said that the reasons which Sullivan J gave for quashing the orders were ‘compelling’. In addition to the conceptual reason which he gave, Sullivan J also said that quashing the orders would be fair because then the people against whom they were made could not be prosecuted for contravening them. That may in some circumstances be a good reason, but I do not think it will always be so. Ordinarily, people who challenge the validity of orders made against them are not free simply to ignore them. They must obey them until they are set aside. The decision to make the order may have been flawed for some reason which has nothing to do with the obligation which has been contravened. The Court of Appeal added that the Secretary of State was in a better position than the court to devise a ‘new package of obligations’. But that seems to me to carry little weight if the Secretary of State says that he will be content with the modification which the court thinks necessary to make the orders lawful, such as a small reduction in the curfew period.

[55] If, therefore, I had thought that the decision to impose any of the obligations under the orders was flawed, I would have remitted the case to the judge to reconsider the exercise of his powers under s 3(12). But because I think that none of them was flawed, the question does not arise.

[56] As for the question of compliance with art 6, I think that for the reasons I have given in Secretary of State for the Home Dept v MB, Secretary of State for the Home Dept v AF [2007] UKHL 46, [2008] 1 All ER 657, [2007] 3 WLR 681 proceedings concerning control orders are not criminal proceedings and that the special advocate procedure complies with the requirements of art 6 for civil proceedings. I would therefore allow the appeals of the Secretary of State.

BARONESS HALE OF RICHMOND.

[57] My Lords, what does it mean to be deprived of one’s liberty? Not, we are all agreed, to be deprived of the freedom to live one’s life as one pleases. It means

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to be deprived of one’s physical liberty (see Engel v Netherlands (1976) 1 EHRR 647 at 669 (para 58)). And what does this mean? It must mean being forced or obliged to be at a particular place where one does not choose to be (eg X v Austria (1979) 18 DR 154). But even that is not always enough, because merely being required to live at a particular address or to keep within a particular geographical area does not, without more, amount to a deprivation of liberty. There must be a greater degree of control over one’s physical liberty than that. But how much? As Sullivan J said ([2006] EWHC 1623 (Admin) at [33], [2006] All ER (D) 330 (Jun)), referring to the cases cited by my noble and learned friend Lord Bingham of Cornhill, at [14] and [18], above), the Strasbourg jurisprudence does not enable us to narrow the gap between—

‘24-hour house arrest seven days per week (equals deprivation of liberty) and a curfew/house arrest of up to 12 hours per day on weekdays and for the whole of the weekend (equals restriction on movement) . . .’

[58] The Strasbourg jurisprudence does tell us that ‘Deprivation of liberty may . . . take numerous other forms’ than ‘classic detention in prison or strict arrest imposed on a serviceman’ (see Guzzardi v Italy (1980) 3 EHRR 333 at 363–364 (para 95)). We must look (at 362–363 (para 92)) at the ‘concrete situation’ of the individual concerned and take account of ‘a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’; also Engel v Netherlands (1976) 1 EHRR 647 at 669 (para 59); HL v UK (2004) 81 BMLR 131 at 162 (para 89). However, the ‘difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance’ (see Guzzardi v Italy (1980) 3 EHRR 333 at 363 (para 93)). It also appears that restrictions designed, at least in part, for the benefit of the person concerned are less likely to be considered a deprivation of liberty than are restrictions designed for the protection of society (see R (on the application of the Secretary of State for the Home Dept) v Mental Health Review Tribunal [2002] EWCA Civ 1868 at [16], [17], [2002] All ER (D) 307 (Dec) at [16], [17], citing Nielsen v Denmark (1989) 11 EHRR 175 and HM v Switzerland (2004) 38 EHRR 314, R (on the application of Davis) v South Devon Magistrates’ Court [2004] EWHC 3113 (Admin), [2004] All ER (D) 330 (Dec)).

[59] Sullivan J took as his starting point the requirement to remain in the ‘residence’ for 18 hours each day, between 4 pm and 10 am (see [2006] EWHC 1623 (Admin) at [60]). This is classic detention or confinement. It is secured by electronic tagging, a requirement to clock out on leaving and clock in on returning, and by arrest and imprisonment for disobedience, rather than by lock and key. But that makes no difference: ‘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’; having the opportunity to breach the requirements of that regime does not take it outside art 5 (see Pekov v Bulgaria [2006] ECHR 50358/99, para 73).

[60] Having taken the 18-hour curfew as his starting point, the judge went on to consider the concrete situation of the controlled persons, at first during the curfew hours and then during their six hours of comparative freedom. If we do the same, we can see the extent to which the regime controlled their lives and cut them off from normal society. With one exception, they were required to move from the places where they had previously lived to prescribed addresses in a different area. These addresses were one bed-roomed flats where they lived alone. They were not allowed into the communal areas during the curfew hours.

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They were allowed one landline telephone apart from the dedicated line supplied by the monitoring company. They were not allowed access to the internet nor were they supplied with any other means of making their isolation more bearable. No one was to be allowed in at any time, apart from their own lawyers, the emergency services or healthcare or social work professionals in an emergency, and anyone required to be given access under the terms of the tenancy. They were also required to allow the police to enter and search at any time, to remove or inspect anything, and to install equipment to ensure compliance with the order. Any other visitor required the prior approval of the Home Office, which had to be supplied with the name, address, date of birth and a photograph. Not surprisingly, there had been few requests for approval. The cases against the controlled persons rested largely on their links with one another and with other people with links to known terrorist individuals or organisations. Who—apart from someone with a professional reason to do so or a close family member (and these people have no family here)—would want to be seen to be associating with them?

[61] Undoubtedly, these people were deprived of their liberty during the curfew hours. Did the fact that they were allowed out for up to six hours a day make any difference? The areas to which they were restricted consisted, save in one case, of large parts of some major cities, including parks, recreational facilities, libraries, shops, and healthcare services. They had the freedom to choose what to do and what to buy with the small allowances with which they were provided (mainly in vouchers). But that freedom was also severely curtailed. Without prior Home Office agreement, they were not allowed to meet anyone by prior arrangement, apart from their lawyers or health or welfare workers at an agreed establishment; nor were they allowed to attend any pre-arranged meetings or gatherings, apart from attending group prayers at a mosque. And the areas to which they were confined were deliberately designed to cut them off from their old haunts and acquaintances. Even supposing that the Home Office would have been willing to allow them to register for regular educational classes or group recreational activities, the hours of 10 am to 4 pm do not fit in with any ordinary pattern of morning, afternoon or evening activity. Nor, in practice, would those whose immigration status allowed them to work be able to seek even part-time employment.

[62] It is in this context that the judge talked of a ‘normal’ life. He was not starting from a normal life and seeing how far the control order regime differed from this. He was starting from the 18-hour curfew and assessing how far they were nonetheless able to pursue a normal life. The reality is that every aspect of their lives was severely controlled. They were allowed out each day to go for a long and solitary walk, to attend prayers at their nominated mosques, and to buy such limited supplies as they could afford. This would not prevent detention in a psychiatric hospital under the Mental Health Act 1983 from being a deprivation of liberty (see Ashingdane v UK (1985) 7 EHRR 528). It is not surprising that the judge concluded:

‘The respondents’ “concrete situation” is the antithesis of liberty, and is more akin to detention in an open prison, where the prisoner is “likely to be released from prison regularly in order to work, take town visits and temporary release on resettlement or facility licence” (see Creighton and others Prisoners and the Law (3rd edn) para 5.37).’

Indeed, in several respects a prisoner might be better off (see [74]).

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[63] In common with the Court of Appeal and with my noble and learned friends, Lord Bingham of Cornhill and Lord Brown of Eaton-under-Heywood, therefore, I consider that the judge applied the right test and, for what it is worth, reached a conclusion on the facts with which I would agree. 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 art 5 of the convention. As such situations may be many and various I would hesitate to suggest, in the abstract, what length of curfew would fall on the other side of the line.

[64] As to remedy, the Prevention of Terrorism Act 2005 draws a clear and principled distinction between control orders which do, and control orders which do not, amount to a deprivation of liberty. It recognises that people should not be deprived of their liberty on the basis of reasonable suspicion alone: involvement in terrorist-related activity must be proved (see 2005 Act, s 4(7)(a)). It also recognises that only a court may deprive people of their liberty (see s 1(2)(b)). The Home Secretary has no power to make such an order. For the reasons given by Lord Bingham, the judge had no choice but to quash these orders. To his speech, I am merely the chorus. I too would dismiss these appeals.

LORD CARSWELL.

[65] My Lords, the tension between the opposing imperatives of protecting the safety of the public and protecting individual human rights has increased steadily in the past few years, and finding an acceptable resolution has grown progressively more difficult. The government has taken steps designed to discharge its duty of protecting the public against terrorism and these have been the subject of regular challenges by those adversely affected by them. Parliament is not free to legislate as it chooses in this sphere: its ability to do so is limited by the provisions of the Human Rights Act 1998 and the necessity for legislation to be compatible and steps taken to be compliant with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998 Act). The duty falls upon the courts of undertaking the difficult task of adjudicating upon that compatibility and compliance.

[66] The dangers to the public posed by terrorist action give rise to very serious concern, shared by all responsible citizens. The subjects of the present appeals are persons about whom the authorities possess information which, if correct, would mean that they pose a very significant potential danger to the safety of the public. In each case, notwithstanding the extent and nature of the information, the evidence capable of being adduced in criminal prosecutions is regarded as being insufficient to obtain convictions of criminal offences. They cannot be deported or extradited, because of the constraints of art 3 of the convention, as it is claimed that they would face torture or inhuman treatment if returned to their own countries. In order to meet this situation, Parliament, rather than leave them at large, enacted s 23 of the Anti-terrorism, Crime and Security Act 2001, providing for the detention of such persons despite the fact that their removal or departure from the United Kingdom was prevented. For this to be done there had to be a derogation from art 5(1)(f) of the convention, which was effected by the Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001/3644.

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[67] That expedient foundered when the House held in A v Secretary of State for the Home Dept, X v Secretary of State for the Home Dept [2004] UKHL 56, [2005] 3 All ER 169, [2005] 2 AC 68, on a challenge by some of the detained persons, that s 23 of the 2001 Act was discriminatory and disproportionate, with the consequence that it could not be regarded as strictly required for the purposes of art 15 of the convention (Rome, 4 November 1950; TS 71 (1953); Cmnd 8969), the derogation provision. The House accordingly declared s 23 to be incompatible with the convention rights under arts 5 and 14 and quashed the 2001 order.

[68] In consequence of this decision the government turned to the idea of keeping such terrorist suspects under supervision by means of control orders and Parliament brought them into effect by enacting the Prevention of Terrorism Act 2005. Their object, as the long title of the Act states, is to impose obligations upon them ‘for purposes connected with preventing or restricting their further involvement’ in terrorism-related activity. They operate, as my noble and learned friend Lord Hoffmann has stated (at [34]) by making it easier for the security services to keep a close watch on what they are doing and inhibiting their participation in terrorist conspiracies. The material provisions of the 2005 Act and the content of the control orders in question have been set out in detail in the opinion of my noble and learned friend Lord Bingham of Cornhill and I gratefully adopt these without repeating them.

[69] In the appeal to which this opinion relates, the issue argued was whether control orders constituted a deprivation of liberty and so a breach of art 5(1) of the convention. The word ‘liberty’ has a range of meanings. In a narrower sense it may mean physical freedom to move, so that deprivation of liberty would be physical incarceration or restraint. In a wider sense it may mean the freedom to behave as one chooses, for example, liberty of speech. For the reasons which I shall give, and in agreement with those set out by Lord Hoffmann, I am of opinion that in the phrase ‘deprived of his liberty’ in art 5(1) the word should be interpreted in the narrower sense which I have defined.

[70] Lord Hoffmann has pointed out, but I would emphasise it again, that the challenge to the control orders is being made only under art 5 of the convention and not under art 2 of the Fourth Protocol, which provides for the right to liberty of movement, since the United Kingdom has not ratified that Protocol. It is of great importance to draw a clear distinction between the two articles. The existence of art 2 of the Fourth Protocol shows in my opinion that the framers of this provision were conscious of the limited extent of art 5 of the convention and saw the need for a separate provision to cover restriction of movement. I think that its existence also supports the view that the ambit of art 5 should be kept clear and distinct from that of art 2 of the Fourth Protocol, and that there is no need or room for a purposive construction of art 5 which would extend it in the direction of applying to restrictions of movement.

[71] The Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) expressed the view in its judgment ([2006] EWCA Civ 1141 at [12], [13], [2007] QB 446 at [12], [13]) that Sullivan J in the Administrative Court correctly interpreted ‘liberty’ in accordance with the direction of the European Court of Human Rights in its judgment in Guzzardi v Italy (1980) 3 EHRR 333 (to which I shall return in more detail later) and rejected Mr Sales’s contention on behalf of the Secretary of State that the learned judge had taken too broad a meaning and had considered the extent to which the restrictions contained in the control orders interfered with ‘normal life’. I am

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unable to agree with this view, and examination of the terms of the judgment of Sullivan J will show that he did just what Mr Sales attributed to him.

[72] Having summarised ([2006] EWHC 1623 (Admin), [2006] All ER (D) 330 (Jun)) some of the principles propounded in Guzzardi v Italy, the judge then said:

‘[54] The extent to which the individual is subject to supervision, the extent to which he can make social contacts, the extent to which he has access to public facilities, and whether he is free to make telephone calls or otherwise to communicate with whomsoever he wishes, are all aspects of a broader question: to what extent is the individual subject to the obligations able to lead a life of his choice, which for convenience may be described as a “normal” life? If one asks the question “deprived of liberty to do what?”, the answer must be: deprived of the freedom to lead one’s life as one chooses (within the law). That freedom is the antithesis of a life which is subject to the kinds of control to which a prisoner, whose “liberty to do anything is governed by the prison regime” is subject (see Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733 at 755, [1992] 1 AC 58 at 176 per Lord Jauncey of Tullichettle).’

He went on to refer (at [63]) to the extent to which the restrictions enabled the persons affected to ‘lead a “normal” life’. Again, he stated:

‘[77] In accordance with the principles established in Guzzardi v Italy, I have considered the cumulative impact of the obligations and therefore the extent to which they restrict the respondents’ liberty in the six hours when they are allowed out of their residences, as well as the effect of the 18-hour curfew and the obligations imposed on the respondents whilst they have to remain within their residences during that period. If I had to assess the impact of the obligations individually, I would consider that house arrest for 18 hours each day, even if it was the only obligation (apart from obligations such as reporting and tagging to ensure that it was strictly observed) would be more realistically described as a deprivation of liberty, and not as a restriction on liberty, if it prevented the individual from pursuing a normal “in at home/out at work” life cycle (cf Trijonis v Lithuania App No 2333/02 (17 March 2005, unreported)).’

[73] It seems to me abundantly clear that Sullivan J’s view of the case was governed by his comparison of the life led by the respondents in the case before him with a normal life. In this I consider that he was wrong. I think that the Court of Appeal also failed to consider the correct factors in upholding Sullivan J’s judgment, as appears from its judgment, where it refers with apparent approval ([2007] QB 446 at [14]) to his consideration of ‘the extent to which restrictions would prevent an individual from pursuing the life of his choice, whatever that choice might be’.

[74] Although many decisions of the European Court of Human Rights and the European Commission were cited to your Lordships, the only one which contained any sustained discussion of the governing principle was Guzzardi v Italy (1980) 3 EHRR 333. It was analysed repeatedly in counsel’s written submission and oral arguments, and your Lordships have all commented on it in greater or lesser detail. The principles discussed in it have been repeated and applied in subsequent Strasbourg cases, and the decision itself has been distinguished in several, but without critical analysis, and I think it of assistance now to make a further examination of the terms of the judgments.

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[75] Mr Guzzardi, as your Lordships have rehearsed, who was suspected (and later convicted) of serious Mafia-linked crimes, was, instead of being remanded in custody, sent to live under ‘special supervision’ on a portion of the small island of Asinara off Sardinia, most of which was occupied by a prison complex to which entry by persons under special supervision was forbidden. They had to live in the small hamlet of Cala Reale in somewhat primitive accommodation. They could not go to the neighbouring village of Cala d’Oliva and were effectively cut off from much human contact apart from persons in compulsory residence and those supervising them. He was subject to a curfew between 10 pm and 7 am, and a number of restrictions were placed on his activities and association with other people. The portion of the island to which he was confined, some 2·5 sq km in area, was described by Guzzardi himself as a pezzo or pezzetto di terra (a scrap of land) and he also described the island as a ‘veritable concentration camp’.

[76] The court considered the issue whether the case fell within art 5 at 362–364 of its judgment, much of which bears repetition in order to follow its reasoning:

‘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.

94. As provided for under the 1956 Act (see paras. 48–49 above), special supervision accompanied by an order for compulsory residence in a specified district does not of itself come within the scope of Article 5. The Commission acknowledged this: it focused its attention on Mr. Guzzardi’s “actual position” at Cala Reale (see paras. 5, 94, 99, etc., of the report) and pointed out that on 5 October 1977 it had declared inadmissible application No. 7960/77 lodged by the same individual with regard to his living conditions at Force.

It does not follow that “deprivation of liberty” may never result from the manner of implementation of such a measure, and in the present case the manner of implementation is the sole issue that falls to be considered (see para. 88 above).

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

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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.

Whilst the area around which the applicant could move far exceeded the dimensions of a cell and was not bounded by any physical barrier, it 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. 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. He lived there principally in the company of other persons subjected to the same measure and of policemen. The permanent population 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. 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. Supervision was carried out strictly and on an almost constant basis. Thus, 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. 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. 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. He was liable to punishment by “arrest” if he failed to comply with any of his obligations. Finally, more than 16 months elapsed before his arrival at Cala Reale and his departure for Force (see paras. 11, 12, 21, 23–42 and 51 above).

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 . . .

The Court considers on balance that the present case is to be regarded as one involving deprivation of liberty.’

The reference to Force is to the fact that Guzzardi was transferred from Asinara to Force, which was a remote country district but did not have the unusual characteristics of Cala Reale on Asinara. He again challenged the order requiring him to live there, but the commission held in 1977 the application inadmissible. The concluding phrase of para 92, which is the sheet anchor of the appellant’s contention that art 5 applies, comes directly from Engel v Netherlands (1976) 1 EHRR 647 at 669–670 (para 59). It is argued that it entitles the court to look at the conditions of life of the person the subject of the control order, and if the restrictions give rise to a sufficiently fundamental alteration of his lifestyle the case may come within art 5.

[77] That this is a questionable assumption may be seen by comparing the dissenting opinion in Guzzardi v Italy of Judge Sir Gerald Fitzmaurice. Sir Gerald Fitzmaurice came to the conclusion that art 5 did not apply, but it is apparent he regarded the question as one of degree, and in his judgment the restrictions did not amount to deprivation of Guzzardi’s liberty. In posing the issue whether

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Guzzardi’s situation amounted to deprivation of liberty or was essentially in the nature of a restriction on freedom of movement and choice of residence, he stated (at 378 (para 5)) that this—

‘must in the long run remain a matter of appreciation and opinion, namely whether the conditions of the applicant’s existence on Asinara were sufficiently stringent to amount to a sort of imprisonment, even though a mild one as imprisonments go, or whether on the other hand, there was no more than a banishment accompanied by measures of confinement to house and grounds but, subject to that, without any restriction on movement within an area of at least a half-mile radius, or more according to some accounts. This could be argued about endlessly and either view is reasonably maintainable—for the issue is essentially one of degree.’

[78] Sir Gerald Fitzmaurice went on to contrast art 5 with art 2(1) of the Fourth Protocol. He drew certain deductions (at 378–379 (para 6)):

‘(a) The existence of this provision [art 2 of the Fourth Protocol] shows either that those who originally framed the Convention on Human Rights did not contemplate that its Article 5 should go beyond preventing actual deprivation of liberty, or to extend to mere restrictions on freedom of movement or choice of residence; or else that the Governments of the Council of Europe did not see Article 5 as covering measures of “deprivation of liberty” where the basic character of those measures consisted primarily of restrictions on movement and place of residence, or they would not have considered it necessary to draw up a separate Protocol about that. The resulting picture is that Article 5 of the Convention guaranteed the individual against illegitimate imprisonment, or confinement so close as to amount to the same thing—in sum against deprivation of liberty stricto sensu—but it afforded no guarantee against restrictions (on movement or place of residence) falling short of that. The latter was effected only by the Protocol, so that in those countries (of which Italy is one) that have not ratified it, such restrictions are not prohibited.

(b) It follows that if Article 5 of the Convention is not to impinge on ground intended to be covered by Article 2 of the Protocol, and is not to do double duty with the latter, it (Art. 5) must be interpreted strictly and regarded as limited to cases of actual imprisonment or to detention close and strict enough to approximate to a virtually complete deprivation of liberty. This was certainly not the situation in regard to the applicant in the present case.

(c) If Article 5 of the Convention were to be interpreted so widely as to include instances of what was basically restriction on freedom of movement or choice of residence, then not only would Article 2 of the Protocol be rendered otiose, but an indirect means would be afforded of making Governments subject to the obligations of the latter, despite the fact that they had not ratified the Protocol. This could not have been intended, but it is a possibility that can only be avoided by a strict interpretation of Article 5 that confines it to its proper sphere.’

In so defining deprivation of liberty for the purposes of art 5 I do not understand Sir Gerald Fitzmaurice to have been taking issue with the majority of the court on the principles to be applied; rather he differed from them on the application to the instant case of those principles. What he stated seems to me to be consistent

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with a proper interpretation of the majority judgment and to furnish a clear analysis of the ambit of the article.

[79] The key in both judgments to the meaning of deprivation of liberty is, I think, to be found in the majority’s comparison of Guzzardi’s situation with detention in an open prison or committal to a disciplinary unit and in Sir Gerald Fitzmaurice’s phrase ‘illegitimate imprisonment, or confinement so close as to amount to the same thing’. It was in this context that the court referred to taking account of ‘a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’. In saying this the court was in my view doing no more than recognising that the situations in which a person may be confined or restricted may vary in many ways from the archetypical case of imprisonment in a cell, but still amount to deprivation of liberty. To take the phrase out its context and use it to reach the conclusion that a variety of restrictions which prevent the person from enjoying a normal life is not in my opinion legitimate.

[80] Guzzardi v Italy has been applied or distinguished in a number of later cases before the European Court of Human Rights or the European Commission, but, as I have said, in none of them is there any analysis which would give real assistance in determining the proper ambit of deprivation of liberty. In one line of house arrest cases, represented by NC v Italy [2002] ECHR 24952/94, Mancini v Italy App No 44955/98 (2 August 2001, unreported), Vachev v Bulgaria [2004] ECHR 42987/98, Nikolova v Bulgaria (No 2) [2004] 40896/98 and Pekov v Bulgaria [2006] ECHR 50358/99, it was held that confinement to the subject’s house constituted a deprivation of liberty. It did not matter that the supervision of the confinement may have been so lax, as was claimed in Pekov v Bulgaria, that the applicant could in fact leave his house with impunity.

[81] On the other side of the line were a series of cases of compulsory residence imposed by orders made by the Italian government, in each of which the commission or the court rejected the complaints (see Ciancimino v Italy (1991) 70 DR 103, Raimondo v Italy (1994) 18 EHRR 237 and Labita v Italy [2000] ECHR 26772/95). In these cases the Strasbourg organs looked at the restrictions, contrasted them with those in Guzzardi v Italy, and concluded that they did not amount to deprivation of liberty. In Labita v Italy the applicant did not allege a breach of art 5(1), and the Grand Chamber concentrated on art 2 of the Fourth Protocol.

[82] A case on which counsel for the Secretary of State placed some reliance was Trijonis v Lithuania App No 2333/02 (17 March 2005, unreported). The applicant was permitted to attend his place of work during the week, but was subject on those days to a curfew between 7 pm and 7 am, while he was obliged to remain in his house during the whole of each weekend. The court briefly contrasted the case with that of Guzzardi v Italy and held that there was not a deprivation of liberty, going on to consider art 2 of the Fourth Protocol.

[83] It is to my mind notable that the assiduity of counsel has not brought before the House any case in which the European Court of Human Rights has held on facts at all comparable with those of the present appeals that there was a deprivation of liberty. If nothing more, this should make your Lordships feel the need to exercise some caution lest they depart from the current of the Strasbourg case law (see R (on the application of Ullah) v Special Adjudicator, Do v Secretary of State for the Home Dept [2004] UKHL 26 at [20], [2004] 3 All ER 785 at [20], [2004] 2 AC 323 per Lord Bingham of Cornhill). Similar caution is required in recourse to the facts of individual Strasbourg cases and their use as factual precedents (see

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R (on the application of Gillan) v Metropolitan Police Comr [2006] UKHL 12 at [23], [2006] 4 All ER 1041 at [23], [2006] 2 AC 307 per Lord Bingham), a tendency which does appear in the judgments of the courts below in these appeals. In the absence of any subsequent exposition of principle in the case law, Guzzardi v Italy remains the fount, and for the reasons I have given I do not think that it supports the conclusions which have been drawn from it.

[84] I accordingly consider that Sullivan J and the Court of Appeal did not approach the meaning of deprivation of liberty in the proper fashion, and I would allow the appeal of the Secretary of State in these cases. I am conscious of the concern which some of your Lordships have felt about the effect of a curfew as long as 18 hours per day, and I would not dismiss that concern lightly. I conclude, however, that on balance even that very long curfew does not take the cases over the line of deprivation of liberty. I am not disposed to enter into discussion of the length of time which would take a case over that line. A great deal depends on the overall factual matrix of any given case. Moreover, I feel that the House ought to focus more on the principles to be followed than in giving detailed directions.

[85] These conclusions make it unnecessary to decide on the question of remedy, but since the issue was fully argued before the House I should perhaps express a very brief view on it. The court is empowered by s 3(12) of the 2005 Act to quash one or more of the obligations imposed by the Secretary of State’s order. The detailed nature of the obligations in a typical control order may be seen from the summary of the order made in respect of LL contained at para [33] of Lord Hoffmann’s opinion. I incline to the view that the power to quash obligations is intended to cover a case where the court takes the view that the control order is justified but one of the fairly peripheral obligations is not, eg if one of the five individuals named in the non-association obligation numbered (7) in LL’s case was wrongly included. If, however, the court applying the proper test concludes that the control order constitutes a deprivation of liberty because it is in essence comparable to imprisonment, then I would agree with the conclusion reached by Lord Bingham that it can and should quash the order, leaving the Secretary of State to reconsider the case.

LORD BROWN OF EATON-UNDER-HEYWOOD.

[86] My Lords, control orders are highly contentious. Many think them essential as a means of providing some protection at least against suspected terrorists, the very minimum which government should do in fulfilment of its undoubted obligation to safeguard public security. Others abhor the whole notion of preventive action against people not even to be charged with a criminal offence and question whether the control order regime, like internment in the past, does not create more terrorists than it disables. That, however, is a debate for the House in its legislative capacity, not for your Lordships in the Appellate Committee. Rather your Lordships have to decide certain very different questions as to the legality of the control order regime, and in particular its compatibility with the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998).

[87] Between them the four appeals now before the House raise a number of different issues (see Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642, Secretary of State for the Home Dept v MB, Secretary of State for the Home Dept v AF [2007] UKHL 46, [2008] 1 All ER 657, [2007] 3 WLR

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681 and Secretary of State for the Home Dept v E [2007] UKHL 47, [2008] 1 All ER 699, [2007] 3 WLR 720). Paramount amongst them, however, and lying at the very heart of this appeal (JJ and others), is the contention that control orders which impose, as these six control orders did, 18-hour curfews necessarily involve a deprivation of liberty contrary to art 5 of the convention. That contention succeeded before the Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) ([2006] EWCA CIv 1141, [2007] QB 446). The Secretary of State now appeals.

[88] The facts of the appeal I gratefully take from the judgment below. Each of the respondents is a single man. Five are Iraqi nationals who have claimed asylum. They were arrested under the Terrorism Act 2000, released without charge, and then re-detained under immigration powers on notice of intention to deport on national security grounds. There is a dispute as to whether the sixth, LL (who has since absconded and is now believed to be overseas), is an Iranian or an Iraqi national. He too was detained pending deportation on national security grounds. All deportation proceedings were discontinued on the making of the control orders.

[89] The obligations imposed by the control orders are essentially identical in all six cases. Each respondent is required to remain within his ‘residence’ at all times, save for a period of six hours between 10 am and 4 pm. In the case of GG the specified residence is a one-bedroom flat provided by the local authority in which he lived before his detention. In the case of the other five respondents the specified residences are one-bedroom flats provided by the National Asylum Support Service. During the curfew period the respondents are confined in their small flats and are not even allowed into the common parts of the buildings in which these flats are situated. Visitors must be authorised by the Home Office, to which name, address, date of birth and photographic identity must be supplied. The residences are subject to spot searches by the police. During the six hours when they are permitted to leave their residences, the respondents are confined to restricted urban areas, the largest of which is 72 sq km. These deliberately do not extend, save in the case of GG, to any area in which they lived before. Each area contains a mosque, a hospital, primary healthcare facilities, shops and entertainment and sporting facilities. The respondents are prohibited from meeting anyone by pre-arrangement who has not been given the same Home Office clearance as a visitor to the residence.

[90] The Strasbourg jurisprudence makes plain that the art 5 concept of deprivation of liberty is autonomous and that the court’s task in cases like this is to decide whether the restrictions in question amount to a deprivation of liberty within art 5 or merely to a restriction upon liberty of movement within art 2 of the Fourth Protocol (a Protocol not in fact ratified by the United Kingdom). Deprivation of liberty can only ever be justified if brought within one of paragraphs (a)–(f) of art 5(1)—none of which are available in the present type of case notwithstanding that the judge may well conclude both that there are reasonable grounds for suspecting the person concerned to be or have been involved in terrorist-related activity and that it is necessary to make this restrictive a control order to protect the public from a risk of terrorism. Restriction of movement, on the other hand, can be justified in the public interest under art 2(4) of the Fourth Protocol.

[91] That, then, is the court’s task: to decide into which category the case falls and, as was made plain by the European Court of Human Rights in Guzzardi v Italy (1980) 3 EHRR 333 at 363—still the leading Strasbourg authority on the

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point—the distinction between the two categories is one of degree or intensity, not of kind:

‘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.’

[92] The Court of Appeal (agreeing with Sullivan J at first instance [2006] EWHC 1623 (Admin), [2006] All ER (D) 330 (Jun)) concluded ([2007] QB 446 at [23]) that ‘the facts of this case fall clearly on the wrong side of the dividing line’. Was the Court of Appeal right in that conclusion? That is the critical question.

[93] Before seeking further assistance from Guzzardi v Italy, it is worth noting one earlier Strasbourg authority, Engel v Netherlands (1976) 1 EHRR 647. Engel v Netherlands was concerned with disciplinary measures against members of the armed forces and considered four measures in particular: in ascending order of severity, (a) light arrest involving confinement to military buildings or premises or the serviceman’s dwelling during off-duty hours, (b) aggravated arrest involving the serviceman spending his off-duty hours in a specially designated place and being unable to visit the canteen, cinema or recreation rooms, (c) strict arrest during which the serviceman was locked in a cell both by day and by night for up to 14 days and so unable to perform his normal duties, and (d) committal to a disciplinary unit unable to leave for upwards of a month. Only (c) and (d) were held to involve the deprivation of liberty. The court said (at 669 (para 58) that art 5 ‘is contemplating individual liberty in its classic sense, that is to say the physical liberty of the person. Its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion.' Because, however, of ‘the specific demands of military service’, the court held (at 669 (para 59)) that:

‘The bounds that Article 5 requires the State not to exceed are not identical for servicemen and civilians. A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.’

It appears to follow that the court contemplated that the imposition of measures akin to (a) or (b) upon a civilian might well constitute a deprivation of liberty although account would always have to be taken of ‘a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question’.

[94] Guzzardi v Italy concerned the confinement of a Mafia suspect for over 16 months within a 2·5 sq km area (a corner of Asinara island) reserved for persons in compulsory residence, subject to a nine-hour (10 pm to 7 am) curfew and almost permanent supervision and with only limited opportunities for social contact. Concluding ‘on balance’ by a majority of 11 to 7 that Mr Guzzardi was deprived of his liberty, the court said ((1980) 3 EHRR 333 at 363–364 (para 95)):

‘It is admittedly not possible to speak of “deprivation of liberty” on the strength of any one of these factors [the constricting circumstances of his confinement] taken individually, but cumulatively and in combination they certainly raise an issue of categorisation from the viewpoint of Article 5. In

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certain respects the treatment complained of resembles detention in an “open prison” or committal to a disciplinary unit.’

It is important to understand, however, that the court was not there holding that only treatment resembling detention in an open prison or committal to a disciplinary unit can amount to deprivation of liberty. On the contrary, notwithstanding its recognition that there were clear differences between Mr Guzzardi’s treatment and ‘classic detention in prison or strict arrest imposed on a serviceman’—most notably that for 15 hours a day he was free to leave and return to his dwelling as he wished, that his wife and son lived with him for 14 of the 16 months of his confinement, ‘the inviolability of his home and of the intimacy of his family life, two rights that the Convention guaranteed solely to free people’, and with regard to ‘his social relations’—the court nevertheless continued:

‘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 also echoed (at 362–363 (para 92)) what had been said in Engel v Netherlands as to the focus of art 5 being on ‘physical liberty’ and—

‘the starting point [being the applicant’s] 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.’

[95] By ‘manner of implementation of the measure in question’, the Court indicated (at 363 (para 94)), as indeed was already apparent from para 88, that it was concerned not with the Italian legislation authorising Mr Guzzardi’s confinement but rather with his ‘actual position’ during it.

[96] Guzzardi v Italy, of course, was decided over a quarter of a century ago. But subsequent cases, whilst establishing certain parameters beyond which it is now clear one way or the other whether art 5 applies, afford little additional assistance. The borderline between deprivation of liberty and restriction upon liberty remains indistinct and around it decisions necessarily remain ‘a matter of pure opinion’.

[97] One parameter is represented by a series of Italian Mafia cases where the applicants were subject to internal exile regimes much like Mr Guzzardi’s but in larger areas and communities than Mr Guzzardi on Asinara. One such case, indeed, was that of Mr Guzzardi himself when, after Asinara, he was required to live in the small, remote mainland district of Force. Other such cases are Ciancimino v Italy (1991) 70 DR 103, Raimondo v Italy (1994) 18 EHRR 237 and Labita v Italy [2000] ECHR 26772/95. All involved curfews of between nine and eleven hours. All (save Labita v Italy where no art 5 complaint was even made) were summarily ruled inadmissible either by the commission or the court. So too was Trijonis v Lithuania App No 2333/02 (17 March 2005, unreported) where for 16 months the applicant was subject to a 12-hour nightly curfew during weekdays and an entire weekend curfew (60 hours from 7 pm Friday to 7 am Monday). He, however, lived in his own house (which was inviolable) and was free from all restraints outside his home and so was able, midweek, to work or meet people as he wished.

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[98] The other end of the spectrum is represented by the ‘house arrest’ cases in which the respective applicants were required (sometimes as a ‘less restrictive’ measure than pre-trial detention) to remain at home at all times save by prior permission of the authorities. These cases include NC v Italy [2002] ECHR 24952/94, Mancini v Italy App No 44955/98 (2 August 2001, unreported), Vachev v Bulgaria [2004] ECHR 42987/98, Nikolova v Bulgaria (No 2) [2004] 40896/98 and Pekov v Bulgaria [2006] ECHR 50358/99. All were accepted or held to involve a deprivation of liberty. In Pekov v Bulgaria the government had argued that because in fact the applicant could have left his house with impunity (the monitoring authorities being based elsewhere) he was not deprived of his liberty. Unsurprisingly the argument failed.

[99] Plainly the present cases fall comfortably within the wide spectrum between those parameters. These 18-hour curfews (not to mention the additional constraints placed upon the respondents whether at home or away from it) are substantially more restrictive than those imposed in the Italian Mafia cases, or even those imposed in Trijonis v Lithuania. But they certainly do not amount to around-the-clock house arrest.

[100] Nor is the direct comparison with the facts of Guzzardi v Italy (itself plainly a borderline case) especially helpful. In certain respects the respondents have greater physical liberty than Mr Guzzardi on Asinara: in the non-curfew period they can move around in a larger area with greater facilities and a better opportunity of meeting people (subject, of course, to clearance). But in other respects they have less physical liberty, most notably in their confinement to their small flats for all but six hours a day.

[101] My noble and learned friend Lord Bingham of Cornhill warned in R (on the application of Gillan) v Metropolitan Police Comr [2006] UKHL 12 at [23], [2006] 4 All ER 1041 at [23], [2006] 2 AC 307, of the dangers of attempting to apply Strasbourg judgments as factual precedents: ‘The Strasbourg jurisprudence is closely focused on the facts of particular cases, and this makes it perilous to transpose the outcome of one case to another where the facts are different.' The warning is salutary. To my mind no real assistance here can be gained from other such very different cases as X v Austria (1979) 18 DR 154 (forcible submission to a blood test), X v Federal Republic of Germany (1981) 24 DR 158 (a ten-year-old girl’s detention for two hours in a police station for questioning) and Bozano v France (1986) 9 EHRR 297 (enforced travel by car for some 12 hours handcuffed to policemen for several hundred kilometres to the Swiss border).

[102] Ultimately, therefore, these appeals fall to be decided as ‘a matter of pure opinion’ with little further guidance than that deprivation of liberty is concerned with ‘physical liberty’, that it can take ‘numerous other forms’, (other, that is, than ‘classic detention in prison or strict arrest imposed on a serviceman’), and that it is to be distinguished from mere restriction upon liberty as a question of ‘degree or intensity’, starting with the applicants’ ‘concrete situation’ and then by reference to ‘a whole range of criteria such as the type, duration [and] effects’ of that situation.

[103] Plainly there must come a point at which a daily curfew (itself clearly a restriction upon liberty of movement) shades into a regime akin to house arrest, where so little genuine freedom is left that the line is crossed into deprivation of liberty. The Prevention of Terrorism Act 2005 itself recognises that control orders could be made that are so onerous as to cross that line and require derogation from art 5—and it recognises too that physical liberty is so important a freedom that not only must there then be derogation but also a substantially

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higher threshold for the imposition of such deprivation: proof that the person concerned actually is or has been involved in terrorist-related activity, rather merely than that there are reasonable grounds for suspecting this.

[104] At what point, then, is the line crossed? The question plainly is one for the courts, not for the Secretary of State. She understandably wants to impose in these cases the longest curfews consistent with non-derogation—doubtless to reduce so far as possible the need for surveillance (a scarce and now presumably over-stretched resource) and the suspects’ opportunity to engage in terrorist-related activity. She contends for 18 hours. But there is no particular logic in this. Why not 20 hours, or 22? No useful comparison can be made with actual imprisonment. Indeed, conditions of imprisonment vary hugely. Some of those in open prisons daily go out to work unsupervised.

[105] Taking account of all the other conditions and circumstances of these control orders—broadly similar not only in these six cases but in the other cases heard with them—and not least the length of time for which they are imposed, 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 art 5. I am equally clear, however, that 12 or 14-hour curfews (those at issue in two of the related appeals before the House) 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 art 5 challenges, state that for my part I would regard the acceptable limit to be 16 hours, leaving the suspect with eight 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 that would apply to the making of a derogating control order.

[106] I would add just this. I have given anxious thought to what Lord Bingham said in R (on the application of Ullah) v Special Adjudicator, Do v Secretary of State for the Home Dept [2004] UKHL 26, [2004] 3 All ER 785, [2004] 2 AC 323 at [20] about not construing the convention as conferring greater rights than the Strasbourg jurisprudence itself establishes—something upon which, indeed, I myself commented in R (on the application of Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 at [105]–[106], [2007] 3 All ER 685 at [105]–[106], [2007] 3 WLR 33. But whereas the issue in Al-Skeini’s case was as to the reach of art 1 itself—an issue to which the European Court of Human Rights in Bankovic v Belgium (2001) 11 BHRC 435 at 449–450 (paras 64, 65) had made plain that the ‘living instrument’ approach does not apply—here by contrast the court recognised in Guzzardi v Italy (1980) 3 EHRR 333 at 363–364 (para 95) in the passage already quoted at [94], above that developing legal standards and attitudes will further increase the variety of forms of deprivation of liberty. I think that nowadays a longer curfew regime than 16 hours a day (with the additional restraints imposed in these cases) would surely be classified in Strasbourg as a deprivation of liberty. It may be, indeed, that 16 hours itself is too long. I would, however, leave it to the Strasbourg court to decide upon that,

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were any such argument to be addressed to it. (The government itself, of course, cannot complain to Strasbourg about adverse decisions of your Lordships’ House.)

[107] Finally I would say this. The borderline between deprivation of liberty and restriction of liberty of movement cannot vary according to the particular interests sought to be served by the restraints imposed. The siren voices urging that it be shifted to accommodate today’s need to combat terrorism (or even that it be drawn with such need in mind) must be firmly resisted. Article 5 represents a fundamental value and is absolute in its terms. Liberty is too precious a right to be discarded except in times of genuine national emergency. None is suggested here.

[108] Since writing the paragraphs set out above I have had the advantage of reading in draft the opinions of each of the other members of the committee. 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 [63]), that ‘the overall factual matrix’ is important (Lord Carswell at [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 at para [11] of his opinion in Secretary of State for the Home Dept v E [2008] 1 All ER 699, [2007] 3 WLR 720, 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 that there is no mistake about it, my view is that, taking account of the 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.

[109] It follows that I respectfully agree with Lord Bingham and Baroness Hale that in JJ’s appeal Sullivan J and the Court of Appeal were right to hold that these six control orders involved a deprivation of liberty having regard to their ‘type, duration, effects and manner of implementation’. That being so, I respectfully agree also (with each of your Lordships save for Lord Hoffmann, and for the reasons given by Lord Bingham) that there was no alternative here but to quash the orders in their entirety rather than strike down part of them only or direct their modification by the Secretary of State.

[110] Accordingly I too would dismiss this appeal.

Appeal dismissed.

Kate O’Hanlon Barrister.

Secretary of State for the Home Department v MB;

Secretary of State for the Home Department v AF

[2008] 1 All ER 657

[2007] UKHL 46

Categories:        CIVIL PROCEDURE: HUMAN RIGHTS; Fair Trial        

Court:        HOUSE OF LORDS        

Lord(s):        LORD BINGHAM OF CORNHILL, LORD HOFFMANN, BARONESS HALE OF RICHMOND, LORD CARSWELL AND LORD BROWN OF EATON-UNDER-HEYWOOD        

Hearing Date(s):        5, 9, 10–13 JULY, 31 OCTOBER 2007        

Human rights – Right to a fair hearing – Prevention of terrorism – Control order – Secretary of State making non-derogating control orders against individuals suspected of involvement in terrorism-related activity – Basis of Secretary of State’s reasonable suspicion of involvement in terrorism-related activity contained in closed material – Closed material disclosed to special advocates – Whether procedure compatible with right to fair hearing – Whether non-derogating control order constituting criminal charge for purpose of right to a fair hearing – Human Rights Act 1998, Sch 1, Pt I, art 6(1) – Prevention of Terrorism Act 2005, s 3, Sch, para 4 – CPR Pt 76.

The Secretary of State applied to the court under s 3(1)(a)a of the Prevention of Terrorism Act 2005 for permission to make a non-derogating control order against MB. The Schedule to the 2005 Act provided a rule-making power applicable to both derogating and non-derogating control orders. It required the rule-making authority to have regard in particular to the need to ensure that disclosures of information were not made where they would be contrary to the public interest. Under para 4(2)(a)b rules could make provision enabling control order proceedings to take place without full particulars of the reasons for decisions to which the proceedings related being given to a relevant party to the proceedings or his legal representative. Provision could be made enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative. The Secretary of State was required to disclose all relevant material but could apply to the court for permission not to do so. Such an application was to be heard in the absence of every relevant person and his legal representative and para 4(3)(d) provided that the court had to give permission for material not to be disclosed where it considered that the disclosure of the material would be contrary to the public

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interest. The court had to consider requiring the Secretary of State to provide the relevant party and his legal representative with a summary of the withheld material but had to ensure that such summary did not contain information or other material the disclosure of which would be contrary to the public interest. If the Secretary of State elected not to disclose or summarise material which he was required to disclose or summarise, the court could give directions ensuring that the material was not relied on. CPR Pt 76 gave effect to the procedural scheme authorised by the Schedule to the 2005 Act. It modified the overriding objective of the rules so as to require a court to ensure that information was not disclosed contrary to the public interest. The Secretary of State’s application relating to MB was supported by open material, which included the statement that the Security Service was confident that MB intended to go to Iraq to fight and against coalition forces, and closed material. She applied to withhold the closed material. Permission was granted and the order was made. The special advocate appointed to represent MB’s interests did not challenge the Secretary of State’s application to withhold the closed material and accepted that it would not be possible to serve a summary which would not contain information or material the disclosure of which would be contrary to the public interest. At the required High Court hearing the judge recorded the description by counsel for the Secretary of State of his open case as ‘relatively thin’ and noted that the basis for the confidence of the Security Service was wholly contained within the closed material. He concluded that MB had not had a fair trial and declared s 3 of the 2005 Act to be incompatible with MB’s right to a fair hearing under art 6(1)c of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). The control order was maintained in force. On appeal the Court of Appeal set aside the declaration of incompatibility. MB appealed to the House of Lords. AF was also the subject of a non-derogating control order in circumstances involving closed material and the use of a special advocate. The open material disclosed to AF did not give grounds for reasonable suspicion by the Secretary of State that AF was or had been involved in terrorism-related activity. At the High Court hearing the judge quashed the order but dismissed AF’s application for a declaration of incompatibility. He granted a certificate permitting both parties to appeal directly to the House of Lords identifying issues for the House which included: (i) whether the obligations imposed on AF by the control order amounted to a deprivation of liberty within the meaning of art 5(1) of the convention; (ii) whether a non-derogating control order constituted a criminal charge for the purposes of art 6 of the convention; and (iii) whether the procedures provided for by s 3 of the 2005 Act and the rules of court were compatible with art 6(1) of the convention in circumstances where they had resulted in the case made against an individual being in its essence entirely undisclosed to him and in no specific allegation of terrorism-related activity being contained in open material. The judge had decided issue (i) in favour of AF and issues (ii) and (iii) in favour of the Secretary of State. The Secretary of State appealed and AF cross-appealed.

Held – The appeal of MB and the cross-appeal of AF would be dismissed, the appeal of the Secretary of State in AF’s case would be allowed and both cases would be remitted to the High Court for reconsideration for the following reasons.

Page 659 of [2008] 1 All ER 657

(1) The effect of the control order had not been to deprive AF of his liberty in breach of art 5 of the convention (see [9], [11], [47], [56], [78], [89], below); Secretary of State for the Home Dept v JJ [2008] 1 All ER 613 applied.

(2) Non-derogating control order proceedings did not involve the determination of a criminal charge for the purposes of art 6(1) of the convention. The language of art 6(1) was to be given an autonomous convention meaning applicable in all member states whatever their domestic laws provided. The proceedings were classified as civil in domestic law but the concern of the European Court of Human Rights was to ascertain whether a proceeding was civil or criminal in substance. Parliament had gone to some lengths to avoid a procedure which crossed the criminal boundary; a foundation of suspicion was required but there was no assertion of criminal conduct; no identification of any specific criminal offence was provided for; the order made was preventative in purpose, not punitive or retributive; and the obligations imposed had to be no more restrictive than were judged necessary to achieve the preventative object of the order. The application of the civil limb of art 6(1), however, entitled persons against whom control orders were proposed or made to such measure of procedural protection as was commensurate with the gravity of the potential consequences (see [19]–[24], [48], [49], [56], [79], [90], below).

(3) (Per Lord Bingham of Cornhill, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood) The Court of Human Rights had stated that that the constituent rights embodied in art 6(1) of the convention were not in themselves absolute; it had been sensitive to the special problems posed to national security by terrorism and had recognised the need for a fair balance between the general interest of the community and the rights of the individual. But even in cases where art 6(1) had not been in issue, the court had required that the subject of a potentially adverse decision enjoy a substantial measure or degree of procedural justice. The engagement of special advocates in cases such as the instant cases could help enhance the measure of procedural justice available to a controlled person. The task of the court was, looking at the process as a whole, to decide whether a procedure had been used which involved significant injustice to the controlled person. However, the concept of fairness imported a core, irreducible minimum of procedural protection. In the case of MB the control order could not have been justified on the strength of the open material alone and the thrust of the case against MB had not been effectively conveyed to him by summary, redacted documents or anonymised statements. He had been confronted by a bare unsubstantiated assertion which he could do no more than deny. In the case of AF the essence of the Secretary of State’s case had been in the closed material and AF had not known what the case against him was. If, despite all the efforts of the judge and the special advocates to ensure that there was a fair hearing, the judge determined that the hearing could not be fair unless more material is disclosed, the convention rights require that he be in a position to quash it. Paragraph 4(3)(d) of the Schedule to the 2005 Act should therefore be read and given effect except where to do so would be incompatible with the right of the controlled person to a fair trial. Paragraph 4(2)(a) and CPR Pt 76 would have to be read in the same way (see [32], [34], [35], [39]–[44], [65], [66], [68]–[76], [83]–[87], [90]–[93], below); Roberts v Parole Board [2006] 1 All ER 39, R (on the application of Hammond) v Secretary of State for the Home Dept [2006] 1 All ER 219 applied; Jasper v UK (2000) 30 EHRR 441, Fitt v UK (2000) 30 EHRR 480 considered.

(4) (Per Lord Hoffmann) In principle the special advocate procedure provided sufficient safeguards to satisfy art 6 of the convention (see [54], below).

Page 660 of [2008] 1 All ER 657

Notes

For the right to a fair trial, for civil proceedings, for criminal charges and for what constitutes a fair hearing, see 8(2) Halsbury’s Laws (4th edn reissue) paras 134–137, and for the power to make control orders, see 11(1) Halsbury’s Laws (4th edn) (2006 reissue) para 454.

For the Prevention of Terrorism Act 2005, s 3, Sch, para 4, see 12(2) Halsbury’s Statutes (4th edn) (2005 reissue) 1856, 1882.

Cases referred to in opinions

A v Secretary of State for the Home Dept (No 2) [2005] UKHL 71, [2006] 1 All ER 575, [2006] 2 AC 221.

A v Secretary of State for the Home Dept, X v Secretary of State for the Home Dept [2004] UKHL 56, [2005] 3 All ER 169, [2005] 2 AC 68, [2005] 2 WLR 87; rvsg [2002] EWCA Civ 1502, [2003] 1 All ER 816, [2004] QB 335, [2003] 2 WLR 564; rvsg [2002] HRLR 1274, SIAC.

Albert v Belgium (1983) 5 EHRR 533, [1983] ECHR 7299/75, ECt HR.

Al-Nashif v Bulgaria (2002) 36 EHRR 655, [2002] ECHR 50963/99, ECt HR.

Arcuri v Italy App No 52024/99 (5 July 2001, unreported), ECt HR.

Atlan v UK (2001) 34 EHRR 833, [2001] ECHR 36533/97, ECt HR.

B v Chief Constable of Avon and Somerset Constabulary [2001] 1 All ER 562, [2001] 1 WLR 340, DC.

Bendenoun v France (1994) 18 EHRR 54, [1994] ECHR 12547/86, ECt HR.

Benham v UK (1996) 22 EHRR 293, [1996] ECHR 19380/92, ECt HR.

Botmeh v UK [2007] All ER (D) 40 (Jun), ECt HR.

Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97, [2003] 1 AC 681, [2001] 2 WLR 817, PC.

Campbell v UK (1984) 7 EHRR 165, [1984] ECHR 7819/77, ECt HR.

Chahal v UK (1996) 1 BHRC 405, ECt HR.

Charkaoui v Minister of Citizenship and Immigration 2007 SCC 9, [2007] 5 LRC 95, Can SC.

Ciulla v Italy (1989) 13 EHRR 346, [1989] ECHR 11152/84, ECt HR.

Customs and Excise Comrs v City of London Magistrates’ Court [2000] 4 All ER 763, [2000] 1 WLR 2020, DC.

D (minors) (adoption reports: confidentiality), Re [1995] 4 All ER 385, [1996] AC 593, [1995] 3 WLR 483, HL.

Demicoli v Malta (1991) 14 EHRR 47, [1991] ECHR 13057/87, ECt HR.

Dowsett v UK [2003] All ER (D) 307 (Jun), ECt HR.

DS v HM Advocate [2007] UKPC 36, [2007] 5 LRC 563, 2007 SC (PC) 1.

Edwards v UK (2004) 40 EHRR 593, ECt HR.

Engel v Netherlands (1976) 1 EHRR 647, [1976] ECHR 5100/71, ECt HR.

Feldbrugge v Netherlands (1986) 8 EHRR 425, [1986] ECHR 8562/79, ECt HR.

Fitt v UK (2000) 30 EHRR 480, [2000] ECHR 29777/96, ECt HR.

Garcia Alva v Germany (2001) 37 EHRR 335, [2001] ECHR 23541/94, ECt HR.

Garyfallou AEBE v Greece (1997) 28 EHRR 344, [1997] ECHR 18996/91, ECt HR.

Gough v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] 2 All ER 985, [2002] QB 1213, [2002] 3 WLR 289.

Guzzardi v Italy (1980) 3 EHRR 333, [1980] ECHR 7367/76, ECt HR.

Hamdi v Rumsfeld (2004) 542 US 507, US SC.

Han v Comrs of Customs and Excise, Martins v Comrs of Custom and Excise, Morris v Comrs of Customs and Excise [2001] EWCA Civ 1040, [2001] 4 All ER 687, [2001] 1 WLR 2253.

Page 661 of [2008] 1 All ER 657

Harkat, Re (2004) 125 CRR (2d) 319.

Hussien v Chong Fook Kam [1969] 3 All ER 1626, [1970] AC 942, [1970] 2 WLR 441, PC.

International Transport Roth GmbH v Secretary of State for the Home Dept [2002] EWCA Civ 158, [2003] QB 728, [2002] 3 WLR 344.

Jasper v UK (2000) 30 EHRR 441, [2000] ECHR 27052/95, ECt HR.

Kanda v Government of the Federation of Malaya [1962] AC 322, [1962] 2 WLR 1153, PC.

Klass v Germany (1978) 2 EHRR 214, [1978] ECHR 5029/71, ECt HR.

Kostovski v Netherlands (1989) 12 EHRR 434, [1989] ECHR 11454/85, ECt HR.

Landvreugd v Netherlands (2002) 36 EHRR 1039, [2002] ECHR 37331/97, ECt HR.

Lauko v Slovakia (1998) 33 EHRR 994, [1998] ECHR 26138/95, ECt HR.

Lawless v Ireland (No 3) (1961) 1 EHRR 15, [1961] ECHR 332/57, ECt HR.

Lobo Machado v Portugal (1996) 23 EHRR 79, [1996] ECHR 15764/89, ECt HR.

Lucà v Italy (2001) 36 EHRR 807, [2001] ECHR 33354/96, ECt HR.

M v Italy (1991) 70 DR 59, E Com HR.

M v Secretary of State for the Home Dept [2004] EWCA Civ 324, [2004] 2 All ER 863.

McMichael v UK [1995] 2 FCR 718, ECt HR.

Minister of Employment and Immigration v Chiarelli [1992] 1 SCR 711.

Murray v UK (1994) 19 EHRR 193, [1994] ECHR 14310/88, ECt HR.

Official Solicitor v K [1963] 3 All ER 191, [1965] AC 201, [1963] 3 WLR 408, HL; rvsg [1962] 3 All ER 1000, [1963] Ch 381, [1962] 3 WLR 1517, CA.

Olivieira v Netherlands (2000) 30 EHRR CD 258.

öztürk v Germany (1984) 6 EHRR 409, [1984] ECHR 8544/79, ECt HR.

PG v UK [2001] ECHR 44787/98, ECt HR.

R v A [2001] UKHL 25, [2001] 3 All ER 1, [2002] 1 AC 45, [2001] 2 WLR 1546.

R v H, R v C [2004] UKHL 3, [2004] 1 All ER 1269, [2004] 2 AC 134, [2004] 2 WLR 335.

R v Securities and Futures Authority Ltd, ex p Fleurose [2001] EWCA Civ 2015, [2002] IRLR 297.

R (on the application of Hammond) v Secretary of State for the Home Dept [2005] UKHL 69, [2006] 1 All ER 219, [2006] 1 AC 603, [2005] 3 WLR 1229; affg [2004] EWHC 2753 (Admin), [2005] 4 All ER 1127.

R (on the application of McCann) v Crown Court at Manchester, Clingham v Kensington and Chelsea Royal London BC [2002] UKHL 39, [2002] 4 All ER 593, [2003] 1 AC 787, [2002] 3 WLR 1313.

R (on the application of R) v Durham Constabulary [2005] UKHL 21, [2005] 2 All ER 369, [2005] 1 WLR 1184.

R (on the application of Smith) v Parole Board, R (on the application of West) v Parole Board [2005] UKHL 1, [2005] 1 All ER 755, [2005] 1 WLR 350.

Raimondo v Italy (1994) 18 EHRR 237, [1994] ECHR 12954/87, ECt HR.

Ridge v Baldwin [1963] 2 All ER 66, [1964] AC 40, [1963] 2 WLR 935, HL.

Roberts v Parole Board [2005] UKHL 45, [2006] 1 All ER 39, [2005] 2 AC 738, [2005] 3 WLR 152.

Rowe v UK (2000) 8 BHRC 325, ECt HR.

S v Miller 2001 SC 977, Sh Ct.

Secretary of State for the Home Dept v E [2007] UKHL 47, [2008] 1 All ER 699, [2007] 3 WLR 720; affg [2007] EWCA Civ 459, [2007] 3 WLR 1; rvsg [2007] EWHC 233 (Admin), [2007] HRLR 472.

Page 662 of [2008] 1 All ER 657

Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642; affg [2006] EWCA Civ 1141, [2007] QB 446, [2006] 3 WLR 866; affg [2006] EWHC 1623 (Admin), [2006] All ER (D) 330 (Jun).

Tinnelly & Sons Ltd v UK (1998) 4 BHRC 393, ECt HR.

van Mechelen v Netherlands (1997) 2 BHRC 486, ECt HR.

Cases referred to in list of authorities

A v Secretary of State for the Home Dept [2004] EWCA Civ 1123, [2005] 1 WLR 414.

Äärelä v Finland (Communication No 779/1997) (1997) Selected Decisions of the Human Rights Committee under the Optional Protocol, UN Doc CCPR/C/73/D/779/1997, UN HRC.

Abdulazizi v UK (1985) 7 EHRR 471, [1985] ECHR 9214/80, ECt HR.

Adolf v Austria (1982) 4 EHRR 313, [1982] ECHR 8269/78, ECt HR.

Aerts v Belgium (1998) 5 BHRC 382, ECt HR.

A-G’s Ref (No 2 of 2001) [2003] UKHL 68, [2004] 1 All ER 1049, [2004] 2 AC 72, [2004] 2 WLR 1.

A-G’s Ref (No 4 of 2002) [2003] EWCA Crim 762, [2004] 1 All ER 1, [2005] 1 AC 264, [2003] 3 WLR 1153.

Airey v Ireland (1979) 2 EHRR 305, [1979] ECHR 6289/73, ECt HR.

Ajouaou v Secretary of State for the Home Dept (29 October 2003, unreported), SIAC.

Al-Nashif v Bulgaria (2002) 36 EHRR 655, [2002] ECHR 50963/99, ECt HR.

Altun v Turkey [2004] ECHR 24561/94, ECt HR.

American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, [1975] AC 396, [1975] 2 WLR 316, HL.

Amuur v France (1996) 22 EHRR 533, [1996] ECHR 19776/92, ECt HR.

Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC 147, [1969] 2 WLR 163, HL.

Ashingdane v UK (1985) 7 EHRR 528, [1985] ECHR 8225/78, ECt HR.

Aston-Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2001] EWCA Civ 713, [2001] 3 All ER 393, [2002] Ch 51, [2001] 3 WLR 1323.

B v France (1987) 52 DR 111, E Com HR.

Barthold v Germany (1985) 7 EHRR 383, [1985] ECHR 8734/79, ECt HR.

Begum (Runa) v Tower Hamlets London BC [2003] UKHL 5, [2003] 1 All ER 731, [2003] 2 AC 430, [2003] 2 WLR 388.

Bird v Jones (1845) 7 QB 742.

Bochan v Ukraine [2007] ECHR 7577/02, ECt HR.

Boddington v British Transport Police [1998] 2 All ER 203, [1999] 2 AC 143, [1998] 2 WLR 639, HL.

Borgers v Belgium (1993) 15 EHRR 92, [1991] ECHR 12005/86, ECt HR.

Brind v UK (1994) 18 EHRR CD 76, E Com HR.

Brinks v Netherlands (2005) 41 EHRR SE5, ECt HR.

Brogan v UK (1988) 11 EHRR 117, [1988] ECHR 11209/84, ECt HR.

Brüggemann v Germany (1977) 3 EHRR 244, E Com HR.

Bryan v UK [1996] 1 PLR 47, ECt HR.

Bulut v Austria (1997) 24 EHRR 84, [1996] EHCR 17358/90, ECt HR.

Butler v UK App No 41661/98 (27 June 2002, unreported), ECt HR.

Campbell v Hamlet [2005] UKPC 19, [2005] 3 All ER 1116.

Canada (Minister of Employment and Immigration) v Chiarrelli [1992] 1 SCR 711, Can SC.

Cartwright v Superintendent of HM Prison [2004] UKPC 10, [2004] 3 LRC 151, [2004] 1 WLR 902.

Page 663 of [2008] 1 All ER 657

Castorina v Chief Constable of Surrey (1988) 160 LG Rev 241, CA.

Chapman v UK (2001) 10 BHRC 48, ECt HR.

Chassagnou v France (1999) 7 BHRC 151, ECt HR.

Chuan (Ong Ah) v Public Prosecutor [1981] AC 648, [1980] 3 WLR 855, PC.

Ciancimino v Italy (1991) 70 DR 103, E Com HR.

Clarke v R [2004] UKPC 5, [2004] 3 LRC 298.

Cocks v Thanet DC [1982] 3 All ER 1135, [1983] 2 AC 286, [1982] 3 WLR 1121, HL.

Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, 143 ER 414, [1861–73].

Cumming v Chief Constable of Northumbria Police [2003] EWCA Civ 1844, [2003] All ER (D) 305 (Dec).

D v Germany (1987) 54 DR 116, E Com HR.

De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, [1998] 3 WLR 675, PC.

Deweer v Belgium (1980) 2 EHRR 439, [1980] ECHR 6903/75, ECt HR.

Dombo Beheer v Netherlands (1993) 18 EHRR 213, ECt HR.

Doody v Secretary of State for the Home Dept [1993] 3 All ER 92, [1994] 1 AC 531, [1993] 3 WLR 154, HL.

Doorson v Netherlands (1996) 22 EHRR 330, [1996] ECHR 20524/92, ECt HR.

DPP v Hutchinson [1990] 2 All ER 836, [1990] 2 AC 783, [1990] 3 WLR 196, HL.

DPP v Meaden [2003] EWHC 3005 (Admin), [2004] 4 All ER 75, [2004] 1 WLR 945, DC.

Dumbell v Roberts [1944] 1 All ER 326, CA.

East African Asians v UK (1973) 3 EHRR 76, E Com HR.

Ebanks v R [2006] UKPC 16, [2006] 4 LRC 605, [2006] 1 WLR 1827.

Eckle v Germany (1982) 5 EHRR 1, [1982] ECHR 8130/78, ECt HR.

English v Emery Reimbold & Strick Ltd, DJ & C Withers (Farms) Ltd v Ambic Equipments Ltd, Verrechia (t/a Freightmaster Commercials) v Comr of Police of the Metropolis [2002] EWCA Civ 605, [2002] 3 All ER 385, [2002] 1 WLR 2409.

Erdem v Germany (2002) 35 EHRR 15, ECt HR.

European Roma Rights Centre v Immigration Officer at Prague Airport (United Nations High Comr for Refugees Intervening) [2004] UKHL 55, [2005] 1 All ER 527, [2005] 2 AC 1, [2005] 2 WLR 1.

Evans v UK [2007] FCR 5, ECt HR.

Ezeh v UK (2003) 15 BHRC 145, ECt HR.

Ezelin v France (1991) 14 EHRR 362, [1991] ECHR 11800/85, ECt HR.

Fothergill v Monarch Airlines Ltd [1980] 2 All ER 696, [1981] AC 251, [1980] 3 WLR 209, HL.

Foti v Italy (1982) 5 EHRR 313, [1982] ECHR 7604/76, ECt HR.

Fox v UK (1990) 13 EHRR 157, [1990] ECHR 12244/86, ECt HR.

Frau v Italy App No 12147/86 (19 February 1991, unreported), ECt HR.

Golder v UK (1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR.

Goldsmith v. Customs and Excise Comrs [2001] EWHC Admin 285, [2001] 1 WLR 1673.

Gough v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] 2 All ER 985, [2002] QB 1213, [2002] 3 WLR 289; affg [2001] EWHC Admin 554, [2001] 4 All ER 289, [2002] QB 459, [2001] 3 WLR 1392.

Guantánamo Detainees Cases, Re (2005) 355 F Supp 2d 443, US DC (DC).

Guzzardi v Italy, decision of 5 October 1977 (App No 7960/77) (French version).

Guzzardi v Italy, decision of 5 October 1977 (App No 7960/77), (English translation).

Page 664 of [2008] 1 All ER 657

Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733, [1992] 1 AC 58, [1991] 3 WLR 340, HL.

Handyside v UK (1976) 1 EHRR 737, [1976] ECHR 5493/72, ECt HR.

Hatton v UK (2003) 15 BHRC 259, ECt HR.

Heaney v Ireland (2001) 33 EHRR 264, [2000] ECHR 34720/97, ECt HR.

Hillingdon London BC v Commission for Racial Equality [1982] IRLR 424, [1982] AC 779, [1982] 3 WLR 159.

Hirst v UK (2003) 37 EHRR CD 176.

HL v UK (2004) 17 BHRC 418, ECt HR.

Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1974] 2 All ER 1128, [1975] AC 295, [1974] 3 WLR 104, HL.

Hooper v UK (2005) 41 EHRR 1, [2004] All ER (D) 254 (Nov), ECt HR.

Huang v Secretary of State for the Home Dept, Kasmiri v Secretary of State for the Home Dept [2007] UKHL 11, [2007] 4 All ER 15, [2007] 2 WLR 581.

Huntley v A-G for Jamaica [1995] 1 All ER 308, [1995] 2 AC 1, [1995] 2 WLR 114, PC.

Ibbotson v UK (1999) 27 EHRR CD 332, E Com HR.

Indrakumar v Secretary of State for the Home Dept [2003] EWCA Civ 1677, [2003] All ER (D) 188 (Nov).

Innisfil (Township) v Vespra (Township) [1981] 2 SCR 145, Can SC.

Ireland v UK (1978) 2 EHRR 25, [1978] ECHR 5210/71, ECt HR.

John v Rees, Martin v Davis, Rees v John [1969] 2 All ER 274, [1970] Ch 345, [1969] 2 WLR 1294.

K v Secretary of State for the Home Dept [2006] EWCA Civ 391, [2006] All ER (D) 120 (Apr).

Kjeldsen v Denmark (1976) 1 EHRR 711, [1976] ECHR 5095/71, ECt HR.

Krasniki v Czech Republic [2006] ECHR 51277/99, ECt HR.

Kurt v Turkey (1998) 5 BHRC 1, ECt HR.

Labita v Italy [2000] ECHR 26772/95, ECt HR.

Lakato v Czech Republic App No 42058/98 (23 October 2001, unreported), ECt HR.

Lambeth London BC v Kay, Leeds City Council v Price [2006] UKHL 10, [2006] 4 All ER 128, [2006] 2 AC 465, [2006] 2 WLR 570.

Leander v Sweden (1987) 9 EHRR 433, [1987] ECHR 9248/81, ECt HR.

Lloyd v McMahon [1987] 1 All ER 1118, [1987] AC 625, [1987] 2 WLR 821, HL.

Lupsa v Romania [2006] 2 FCR 685, ECt HR.

Maaouia v France (2000) 9 BHRC 205, ECt HR.

McDonald v Dickson (Procurator Fiscal, Elgin) 2003 SCCR 311, HC of Just.

Mancini v Italy App No 44955/98 (2 August 2001, unreported), ECt HR.

Mantovanelli v France (1997) 24 EHRR 370, ECt HR.

Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 All ER 689, [2003] 1 AC 1163, [2003] 2 WLR 435.

McDonnell v Congregation of Christian Brothers Trustees (formerly Irish Christian Brothers) [2003] UKHL 63, [2004] 1 All ER 641, [2004] 1 AC 1101, [2003] 3 WLR 1627.

McVeigh v UK (1981) 5 EHRR 71, E Com HR.

Meering v Grahame-White Aviation Co Ltd (1919) 112 LT 44, [1918–19] All ER Rep Ext 1490, CA.

MK v Secretary of State for the Home Dept (5 September 2006, unreported), SIAC.

Murray v Ministry of Defence [1988] 2 All ER 521, [1988] 1 WLR 692, HL.

N v Secretary of State for the Home Dept [2005] UKHL 31, [2005] 4 All ER 1017, [2005] 2 AC 296, [2005] 2 WLR 1125.

Page 665 of [2008] 1 All ER 657

NC v Italy [2002] ECHR 24952/94, ECt HR.

Nikolova v Bulgaria (No 2) [2004] 40896/98, ECt HR.

Ngalula Mpandanjilal v Zaire (Communication No 138/1983) (1986) Selected Decisions of the Human Rights Committee under the Optional Protocol Vol 2, UN Doc CCPR/C/OP/2, p 164, UN HRC.

O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129, [1997] AC 286, [1997] 2 WLR 1, HL.

O’Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237, [1982] 3 WLR 1096, HL.

Official Receiver v Stern (No 2) [2001] EWCA Civ 1787, [2002] 1 BCLC 119.

Osman v UK (1998) 5 BHRC 293, ECt HR.

Padfield v Minister of Agriculture, Fisheries and Food [1968] 1 All ER 694, [1968] AC 997, [1968] 2 WLR 924, HL.

Pekov v Bulgaria [2006] ECHR 50358/99, ECt HR.

Phillips v UK (2001) 11 BHRC 280, ECt HR.

Pierson v Secretary of State for the Home Dept [1997] 3 All ER 577, [1998] AC 539, [1997] 3 WLR 492, HL.

Proprietary Articles Trade Association v A-G for Canada [1931] AC 310, [1931] All ER Rep 277, PC.

Purcell v Ireland (1991) 70 DR 262, E Com HR.

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Appeals and cross-appeal

Secretary of State for the Home Department v MB

MB, the subject of a control order made by the Secretary of State under the Prevention of Terrorism Act 2005, appealed with permission of the House of Lords Appeal Committee given on 29 January 2007 from the decision of the Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) on 1 August 2006 ([2006] EWCA Civ 1140, [2007] QB 415) allowing the appeal of the Secretary of State from the decision of Sullivan J on 12 April 2006 ([2006] EWHC 1000 (Admin)) declaring s 3 of the 2005 Act to be incompatible with MB’s right to a fair hearing under art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). JUSTICE appeared as an intervener. The facts are set out in the opinion of Lord Bingham of Cornhill.

Secretary of State for the Home Department v AF

The Secretary of State appealed pursuant to a certificate granted by Ousely J under s 12(3)(b) of the Administration of Justice Act 1969 and with permission of the House of Lords Appeal Committee given on 17 May 2007 from the decision of Ousely J quashing a control order made against AF under the Prevention of Terrorism Act 2005. AF cross-appealed from the dismissal by Ousely J of his application for a declaration that s 3 of the 2005 Act was incompatible with his right to a fair hearing under art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). JUSTICE appeared as an intervener. The facts are set out in the opinion of Lord Bingham of Cornhill.

Tim Owen QC, Kate Markus and Ali Bajwa (instructed by Arani & Co) for MB.

Timothy Otty QC and Zubair Ahmad (instructed by Middleweeks, Manchester) for AF.

Ian Burnett QC, Philip Sales QC, Tim Eicke, Cecilia Ivimy and Andrew O’Connor (instructed by the Treasury Solicitor) for the Secretary of State.

Michael Supperstone QC and Judith Farbey (instructed the Special Advocates Support Office) for the special advocates.

Page 668 of [2008] 1 All ER 657

Michael Fordham QC and Tom Hickman (instructed by Clifford Chance) for JUSTICE.

Their Lordships took time for consideration.

31 October 2007. The following opinions were delivered.

LORD BINGHAM OF CORNHILL.

[1] My Lords, by his appeal to the House, MB seeks to challenge a non-derogating control order made by the Secretary of State on 5 September 2005 under ss 2 and 3 (1)(a) of the Prevention of Terrorism Act 2005. That order was maintained in force by Sullivan J in a decision of 12 April 2006 ([2006] EWHC 1000 (Admin), [2006] All ER (D) 201 (Apr), [2006] HRLR 878, but he declared s 3 of the Act to be incompatible with MB’s rights to a fair hearing under art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). On 1 August 2006 the Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) allowed an appeal against the judge’s decision and set aside his declaration of incompatibility ([2006] EWCA Civ 1140, [2007] QB 415, [2006] 3 WLR 839).

[2] AF was the subject of a non-derogating control order made by the Secretary of State on 11 September 2006 and varied on 18 October 2006. This order also was made under ss 2 and 3(1)(a) of the 2005 Act. Following a full hearing under s 3(10) of the Act, Ouseley J on 30 March 2007 ([2007] EWHC 651 (Admin), [2007] All ER (D) 21 (Apr)) quashed the order but dismissed an application by AF for a declaration of incompatibility. The judge granted a certificate permitting both parties to appeal directly to the House pursuant to s 12(3)(b) of the Administration of Justice Act 1969, and the House granted leave on 17 May 2007.

[3] In granting this certificate, Ouseley J identified four questions, which it is convenient to label issues (1) to (4).

Issue (1): Whether the cumulative impact of the obligations imposed on AF by the control order dated 11 September 2006 and pursuant to the 2005 Act amounted to a deprivation of liberty within the meaning of art 5(1) of the convention.

Issue (2): If the answer to issue (1) is in the affirmative, in circumstances where the court is satisfied that the Secretary of State was entitled to conclude that there is a reasonable suspicion that AF is or has been involved in terrorist-related activity and that it was necessary to make a control order imposing obligations on AF for purposes connected with protecting members of the public from a risk of terrorism, whether it is a proper exercise of the discretion under s 3(12) of the 2005 Act or generally to order that a control order should be quashed as a whole and ab initio rather than to quash individual obligations and/or direct the Secretary of State to modify individual obligations.

Issue (3): Whether a non-derogating control order imposed under the 2005 Act constitutes a criminal charge for the purposes of art 6 of the convention.

Issue (4): Whether the procedures provided for by s 3 of the 2005 Act and the rules of court are compatible with art 6 of the convention in circumstances where they have resulted in the case made against AF being in its essence entirely undisclosed to him and in no specific allegation of terrorism-related activity being contained in open material.

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The judge decided issues (1) and (2) in favour of AF and adversely to the Secretary of State, who appeals against those rulings. He decided issues (3) and (4) in favour of the Secretary of State and adversely to AF, who cross-appeals against those. In his separate appeal, MB complains that in relying heavily on material not disclosed to him to support the control order against him the Court of Appeal acted incompatibly with art 6 and so unlawfully. Thus, despite factual differences between their cases, MB supports the argument of AF on issue (4), as do JUSTICE and Liberty (although Liberty intervene only in the case of Secretary of State for the Home Dept v E [2007] UKHL 47, [2008] 1 All ER 699, [2007] 3 WLR 720).

[4] The terms of these issues, particularly issues (1) and (2), have direct reference to the terms of the 2005 Act. I would make reference to, and will not here repeat, the general summary of that Act which I have given in Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642.

ISSUE (1)

[5] AF is a dual United Kingdom and Libyan national. He was born in this country on 1 July 1980. His father is Libyan, his mother British. The family moved to Libya during the 1980s, but his mother returned here, where she still lives. She is the landlady of a public house in West Yorkshire. AF spent his formative years in Libya with his father and sister. They left Libya in December 2004, according to AF because of a blood feud between his family and the Gadaffi tribe, and also to take advantage of better job opportunities. AF was briefly married, is now divorced and has no children. He has a fiancée in Libya. Since a date shortly after his arrival in the United Kingdom, AF has lived with his father in a flat rented from the council on the outskirts of Manchester. His sister lives in Paris with her husband and two children.

[6] A control order was first made against AF on 24 May 2006. This, among other obligations, confined him to his flat for 18 hours each day. The Secretary of State revoked that order following the Court of Appeal decision in JJ’s case [2007] QB 446 and replaced it by the order made on 11 September 2006 of which complaint is now made.

[7] By the 11 September control order AF was required to remain in the flat where he was already living (not including any communal area) at all times save for a period of 10 hours between 8 am and 6 pm. He was thus subject to a 14-hour curfew. He was required to wear an electronic tag at all times. He was restricted during non-curfew hours to an area of about nine square miles bounded by a number of identified main roads and bisected by one. He was to report to a monitoring company on first leaving his flat after a curfew period had ended and on his last return before the next curfew period began. His flat was liable to be searched by the police at any time. During curfew hours he was not allowed to permit any person to enter his flat except his father, official or professional visitors, children aged ten or under or persons agreed by the Home Office in advance on supplying the visitor’s name, address, date of birth and photographic identification. He was not to communicate directly or indirectly at any time with a certain specified individual (and, later, several specified individuals). He was only permitted to attend one specified mosque. He was not permitted to have any communications equipment of any kind. He was to surrender his passport. He was prohibited from visiting airports, sea ports or certain railway stations, and was subject to additional obligations pertaining to his financial arrangements.

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[8] In his judgement, Ouseley J summarised the evidence given by AF concerning the impact of the order upon him. He had three times been refused permission to visit his mother. His sister and her family were unwilling to visit because of the traumatic experience of one child when AF was first arrested. Friends were unwilling to visit. He only had one Libyan or Arabic-speaking friend in the area he was allowed to frequent, which was not the area to which he had gravitated before. He was not permitted to attend the mosque he had attended before, and was confined to an Urdu-speaking mosque; he could not speak Urdu. He could not visit his Arabic-speaking general practitioner. He could not continue his English studies, since there were no places at the college in his permitted area. He was cut off from the outside world (although, as was pointed out, he had television access to Al Jazeera). The judge very broadly accepted AF’s account of the effects of the control order on him, and of his reaction to those effects ([2007] All ER (D) 21 (Apr) at [53] of his judgment), while noting certain elements of overstatement and exaggeration (at [53], [54]). The judge concluded (at [54]) that the effects of the control order as described by AF were the effects which the restrictions were intended to have.

[9] The judge reviewed the convention and domestic jurisprudence on deprivation of liberty, including the recent decisions of Sullivan J and the Court of Appeal in JJ’s case [2006] EWHC 1623 (Admin), [2006] All ER (D) 330 (Jun); affd [2007] QB 446 and Beatson J in E’s case [2007] EWHC 233 (Admin), [2007] HRLR 472. I have myself attempted to summarise the effect of the convention and domestic jurisprudence in my opinion in JJ’s case [2008] 1 All ER 613 at [12]–[19]. I need not repeat that summary. Ouseley J analysed the effect of the jurisprudence in a careful and judicious manner.

[10] The judge noted ([2007] All ER (D) 21 (Apr) at [76]) that it is the cumulative effect of the restrictions which matters. Turning to the facts of the case, he treated the 14-hour curfew as the most important aspect (at [78]). He regarded the case as finely balanced, but was of opinion that once a curfew reaches, let alone exceeds, 12 hours a day, the scope for further restrictions on what can be done during those hours of curfew without depriving someone of their liberty is very substantially reduced. The judge reviewed certain of the other restrictions, and regarded the case (at [89]) as ‘quite finely balanced’. But having compared AF’s situation with that of E, and noted in particular AF’s longer curfew and geographical restriction, he concluded (at [89]) that the effect of the order was to deprive AF of his liberty, and that the order was accordingly a nullity.

[11] Subject to one point, I should have been unwilling to disturb the value judgment made by the judge, who had had the benefit of receiving and hearing a considerable body of evidence. I do not think the judge misdirected himself in law, subject to that one point, and an appeal against his decision lies only on law. My one qualification is that the judge, quite rightly as matters then stood, paid close attention to Beatson J’s decision in E’s case [2007] HRLR 472, which had not then but has since been reversed by the Court of Appeal ([2007] 3 WLR 1), rightly, as the House has now concluded ([2008] 1 All ER 699). Had the judge had the benefit of the Court of Appeal’s judgment in E’s case, he would in all probability have found on balance that there was no deprivation of liberty in AF’s case. On this basis I am willing to accept the view which I understand to be taken by my noble and learned friends, that the effect of the order was not to deprive AF of his liberty in breach of art 5.

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ISSUE (2)

[12] In the light of that conclusion, issue (2) does not arise. Had it done so, I would have upheld the judge’s decision to quash the control order, for reasons I have given in JJ’s case [2008] 1 All ER 613 at [25]–[27].

ISSUE (3)

[13] As explained in JJ’s case, the conditions for making and upholding a non-derogating control order under ss 2(1)(a) and 3(10) of the 2005 Act are that the Secretary of State (s 2(1))—

‘(a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and (b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.’

Before confirming a derogating control order under s 4(7) the court must first be ‘(a) . . . satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity’.

[14] Article 6 of the convention (‘Right to a fair trial’) provides in the opening sentence of para (1): ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair . . . hearing . . .' The article continues in paras (2) and (3) to identify certain rights specific to those who have been charged with a criminal offence. These include the presumption of innocence (see para (2)) and certain minimum rights, among them rights (see para (3)): ‘(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him . . . (d) to examine or have examined witnesses against him . . .’

[15] The Secretary of State accepts that control order proceedings fall within the civil limb of art 6(1) because they are in their effect decisive for civil rights, in some respects at least. But AF goes further. It is contended on his behalf that control order proceedings fall within the criminal limb of art 6 or, alternatively, that if they fall within the civil limb only they should nonetheless, because of the seriousness of what is potentially involved, attract the protection appropriate to criminal proceedings.

[16] This is not a contention which can be lightly dismissed, for two reasons. First, it may very well be (although the point was not argued) that proceedings for a derogating control order are criminal in character. This was the unequivocal view of the House of Lords and House of Commons Joint Committee on Human Rights in their Twelfth Report of the Session 2005–2006 (HL Paper 122, HC Paper 915) (14 February 2006) (para 49): ‘In our view it is clear that the criminal limb of Article 6(1) ECHR applies to proceedings for a derogating control order. In such a case the full right to due process in Article 6(1) applies.' But, as the Council of Europe Commissioner for Human Rights pointed out in his report on his visit to the United Kingdom (8 June 2005) (para 20), and the Joint Committee (para 52 of its report) agreed, the obligations imposed by a derogating control order differ from those in a non-derogating control order only in their degree of severity, and—

‘It would be curious if at least immediately below this most extreme sanction, there were not other limitations or restrictions of sufficient severity to warrant the classification of the obligations as tantamount to a criminal penalty.’

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[17] Secondly, the law on this subject is not altogether straightforward, since the Strasbourg jurisprudence has recognised the difficulty in some contexts of distinguishing between disciplinary and criminal proceedings (see Engel v Netherlands (1976) 1 EHRR 647 at 678–679 (para 82); Campbell v UK (1984) 7 EHRR 165 at 194–195 (paras 70–71)) and even between civil and criminal proceedings (see Albert v Belgium (1983) 5 EHRR 533 at 542–543 (para 30)). Control order proceedings, potentially applicable to all, lack the internal quality characteristic of disciplinary proceedings. But in this country also judges have regarded the classification of proceedings as criminal or civil as less important than the question of what protections are required for a fair trial (see International Transport Roth GmbH v Secretary of State for the Home Dept [2002] EWCA Civ 158 at [33], [148], [2003] QB 728 at [33], [148], [2002] 3 WLR 344) and have held that the gravity and complexity of the charges and of the defence will impact on what fairness requires (R v Securities and Futures Authority Ltd, ex p Fleurose [2001] EWCA Civ 2015 at [14], [2002] IRLR 297 at [14]).

[18] It was said in Customs and Excise Comrs v City of London Magistrates’ Court [2000] 4 All ER 763 at 767, [2000] 1 WLR 2020 at 2025 (para 17) that in this country—

‘criminal proceedings involve a formal accusation made on behalf of the state or by a private prosecutor that a defendant has committed a breach of the criminal law, and [that] the state or the private prosecutor has instituted proceedings which may culminate in the conviction and condemnation of the defendant.’

Thus if or when the relevant authority decides not to prosecute and there is no possibility of conviction or penalty, there are then no criminal proceedings (see S v Miller 2001 SC 977 at 988, 989–990 (paras 20, 23); R (on the application of R) v Durham Constabulary [2005] UKHL 21 at [14], [2005] 2 All ER 369 at [14], [2005] 1 WLR 1184). For present purposes, however, guidance on the distinction between determination of a civil right and obligation and determination of a criminal charge is to be found in the Strasbourg jurisprudence, and in particular in the leading case of Engel v Netherlands (1976) 1 EHRR 647 at 678–679 (para 82).

[19] The starting point is to ascertain how the proceedings in question are classified in domestic law. This is by no means unimportant, since if the proceedings are classified as criminal in domestic law that will almost certainly be conclusive. But if (as is agreed to be the case here) the proceedings in question are classified as civil in domestic law, that is by no means conclusive. The language of art 6(1) is to be given an autonomous convention meaning, that is, a Council of Europe-wide meaning applicable in all member states whatever their domestic laws may provide. Consistent with its constant principles of preferring substance to form and seeking to ensure that convention rights are effectively protected, the European Court is concerned to ascertain whether a proceeding is, in substance, civil or criminal (see, for example, öztürk v Germany (1984) 6 EHRR 409 at 423–424 (para 53); Lauko v Slovakia (1998) 33 EHRR 994 at 1011–1012 (para 58)). It is recognised that member states may have many reasons for choosing to treat as civil proceedings which are in substance criminal. It is the substance which matters. More significant in most cases are the second and third criteria in Engel v Netherlands, the nature of the offence and the degree of severity of the penalty that the person concerned risks incurring. Here we reach the heart of the argument.

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[20] The Secretary of State submits that there is in proceedings for a non-derogating control order no charge of an offence against the criminal law (in the French text no ‘accusation en matière pénale’). The counter-argument for AF is that there is in substance such a charge or accusation. The conduct of which a person must be reasonably suspected is past or present involvement in terrorism-related activity. The definition of ‘terrorism’ in s 1(1)–(4) of the Terrorism Act 2000, incorporated in the 2005 Act by s 15(1), and the definition of ‘terrorism-related activity’ in s 1(9) of the 2005 Act, are so comprehensive as to render criminal almost any activity which would fall within the definitions, as my noble and learned friend Baroness Hale of Richmond recognised in A v Secretary of State for the Home Dept, X v Secretary of State for the Home Dept [2004] UKHL 56 at [223], [2005] 3 All ER 169 at [223], [2005] 2 AC 68. To the extent that any loopholes have been thought to exist Parliament has sought to fill them.

[21] I see great force in this approach. On any common sense view involvement in terrorism-related activity is likely to be criminal. But the Secretary of State is entitled to respond, as he does, that the controlled person is not charged with such conduct. This is not a point which turns on procedural requirements, which will vary from state to state. It is a point which turns on the distinction between suspecting A of doing X (‘I suspect but I cannot prove’ (see Hussien v Chong Fook Kam [1969] 3 All ER 1626 at 1630, [1970] AC 942 at 948)) and asserting that A has done X. There is an obvious contrast between the reasonable suspicion required of the Secretary of State under ss 2(1)(a) and 3(10) of the Act and the satisfaction required of the court under s 4(7)(a). There is some analogy with the special supervision and protection measures imposed under Italian legislation, in so far as those cases fell within art 6(1) at all (see, for instance, Guzzardi v Italy (1980) 3 EHRR 333; Ciulla v Italy (1989) 13 EHRR 346; M v Italy (1991) 70 DR 59; Raimondo v Italy (1994) 18 EHRR 237; Arcuri v Italy App No 52024/99 (5 July 2001, unreported)).

[22] The Secretary of State further submits that it is an essential feature of a criminal process that it exposes a person to the risk of conviction and punishment. Here, he says, controlled persons are exposed to no such risk. The counter-argument is that the proceedings expose the controlled person to adverse consequences of a very serious kind, more serious than the great majority of criminal penalties. Reliance is placed by analogy on observations of the Joint Committee on Human Rights in their Twelfth Report of the Session 2006–2007 (Legislative Scrutiny: Fifth Progress Report) (HL Paper 91, HC Paper 490) (25 April 2007) (para 1.13), made with reference to serious crime prevention orders.

[23] It cannot be doubted that the consequences of a control order can be, in the words of one respected commentator, ‘devastating for individuals and their families’ (The Hon Mr Justice Chaskalson ‘The Widening Gyre: Counter-terrorism, Human Rights and the Rule of Law’, Seventh Sir David Williams Lecture, p 18). But the tendency of the domestic courts (not without criticism: see Ashworth, ‘Social Control and “Anti-Social Behaviour”: The Subversion of Human Rights?’ (2004) 120 LQR 263) has been to distinguish between measures which are preventative in purpose and those which have a more punitive, retributive or deterrent object. Examples of the former are B v Chief Constable of Avon and Somerset Constabulary [2001] 1 All ER 562, [2001] 1 WLR 340; Gough v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] 2 All ER 985, [2002] QB 1213; and, most notably, R (on the application of McCann) v Crown Court at Manchester, Clingham v Kensington and Chelsea Royal London BC [2002] UKHL 39, [2002] 4 All ER 593, [2003] 1 AC 787; of the latter,

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Han v Comrs of Customs and Excise, Martins v Comrs of Custom and Excise, Morris v Comrs of Customs and Excise [2001] EWCA Civ 1040, [2001] 4 All ER 687, [2001] 1 WLR 2253; International Transport Roth GmbH v Secretary of State for the Home Dept [2002] EWCA Civ 158, [2003] QB 728, [2002] 3 WLR 344. The same distinction is drawn in the Strasbourg authorities. Treated as non-criminal are preventative measures such as those in issue in the Italian cases already mentioned, Lawless v Ireland (No 3) (1961) 1 EHRR 15, Olivieira v The Netherlands (2000) 30 EHRR CD 258, and Landvreugd v Netherlands (2002) 36 EHRR 1039; treated as criminal were the measures considered in öztürk v Germany (1984) 6 EHRR 409; Demicoli v Malta (1991) 14 EHRR 47; Benham v UK (1996) 22 EHRR 293; Lauko v Slovakia (1998) 33 EHRR 994; Garyfallou AEBE v Greece (1997) 28 EHRR 344. Even this distinction, however, is not watertight, since prevention is one of the recognised aims and consequences of punishment (see R (on the application of Smith) v Parole Board, R (on the application of West) v Parole Board [2005] UKHL 1, [2005] 1 All ER 755, [2005] 1 WLR 350) and the effect of a preventative measure may be so adverse as to be penal in its effects if not in its intention.

[24] I would on balance accept the Secretary of State’s submission that non-derogating control order proceedings do not involve the determination of a criminal charge. Parliament has gone to some lengths to avoid a procedure which crosses the criminal boundary: there is no assertion of criminal conduct, only a foundation of suspicion; no identification of any specific criminal offence is provided for; the order made is preventative in purpose, not punitive or retributive; and the obligations imposed must be no more restrictive than are judged necessary to achieve the preventative object of the order. I would reject AF’s contrary submission. This reflects the approach of the English courts up to now (see A v Secretary of State for the Home Dept [2002] EWCA Civ 1502 at [57], [2003] 1 All ER 816 at [57], [2004] QB 335). But I would accept the substance of AF’s alternative submission: in any case in which a person is at risk of an order containing obligations of the stringency found in this case, or the cases of JJ and E, the application of the civil limb of art 6(1) does in my opinion entitle such person to such measure of procedural protection as is commensurate with the gravity of the potential consequences. This has been the approach of the domestic courts in cases such as B v Chief Constable of Avon and Somerset Constabulary [2001] 1 All ER 562, [2001] 1 WLR 340, Gough v Chief Constable of the Derbyshire Constabulary [2002] 2 All ER 985, [2002] QB 1213 and R (on the application of McCann) v Crown Court at Manchester [2002] 4 All ER 593, [2003] 1 AC 787, and it seems to me to reflect the spirit of the convention.

ISSUE (4)

[25] On 11 July 2002 the Committee of Ministers of the Council of Europe promulgated Human rights and the fight against terrorism The Council of Europe Guidelines. The first two principles are (p 8):

‘I. States’ obligation to protect everyone against terrorism

States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States’ fight against terrorism in accordance with the present Guidelines.

II. Prohibition of arbitrariness

All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness,

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as well as any discriminatory or racist treatment, and must be subject to appropriate supervision.’

For understandable reasons the Secretary of State lays particular stress on the first of these guideline principles, the controlled persons (MB and AF) on the second. As observed in R v H, R v C [2004] UKHL 3 at [23], [2004] 1 All ER 1269 at [23], [2004] 2 AC 134:

‘The problem of reconciling an individual defendant’s right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law.’

It is the problem with which Parliament grappled in the 2005 Act, and with which the House is confronted in these appeals.

[26] The Schedule to the 2005 Act provides a rule-making power applicable to both derogating and non-derogating control orders. It requires the rule-making authority (see para 2(b)) to have regard in particular to the need to ensure that disclosures of information are not made where they would be contrary to the public interest. Rules so made (see para 4(2)(b)) may make provision enabling the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative. Provision may be made for the appointment of a person to represent a relevant party (see paras 4(2)(c) and 7). The Secretary of State must be required to disclose all relevant material (see para 4(3)(a)), but may apply to the court for permission not to do so (see para 4(3)(b)). Such application must be heard in the absence of every relevant person and his legal representative (see para 4(3)(c)) and the court must give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest (see para 4(3)(d)). The court must consider requiring the Secretary of State to provide the relevant party and his legal representative with a summary of the material withheld (see para 4(3)(e)), but the court must ensure that such summary does not contain information or other material the disclosure of which would be contrary to the public interest (see para 4(3)(f)). If the Secretary of State elects not to disclose or summarise material which he is required to disclose or summarise, the court may give directions withdrawing from its consideration the matter to which the material is relevant or otherwise ensure that the material is not relied on (see para 4(4)).

[27] Part 76 of the Civil Procedure Rules gives effect to the procedural scheme authorised by the Schedule to the 2005 Act. Rule 76.2 modifies the overriding objective of the CPR so as to require a court to ensure that information is not disclosed contrary to the public interest. Rule 76.1(4) stipulates that disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection or prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Section 3 of Pt 76 applies to non-derogating control orders. It is unnecessary to rehearse its detailed terms. Provision is made for the exclusion of a relevant person and his legal representative from a hearing to secure that information is not disclosed contrary to the public interest (see CPR 76.22). Provision is made for the appointment of a special advocate whose function is to represent the interests of a relevant party (see CPR 76.23, 76.24), but who may only communicate with the relevant party before closed

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material is served upon him, save with permission of the court (see CPR 76.25, 76.28(2)). The ordinary rules governing evidence and inspection of documents are not to apply (see CPR 76.26): evidence may be given orally or in writing, and in documentary or any other form; it may receive evidence which would not be admissible in a court of law; it is provided that ‘Every party shall be entitled to adduce evidence and to cross-examine witnesses during any part of a hearing from which he and his legal representative are not excluded.’

[28] In his written case the Secretary of State states:

‘It is not in dispute that as a general principle and in ordinary circumstances, the right to a fair trial in criminal and in civil proceedings under Article 6 includes the right to disclosure of relevant evidence: see eg (Roberts v Parole Board [2005] UKHL 45 at [17], [2006] 1 All ER 39 at [17], [2005] 2 AC 738) per Lord Bingham, and the cases there referred to.’

In that paragraph reference is made to a number of convention cases, some of them mentioned below. But the controlled persons submit with some force that the Secretary of State’s qualified acceptance does less than justice to the fundamental principle here in issue.

[29] In Kanda v Government of the Federation of Malaya [1962] AC 322 at 337, [1962] 2 WLR 1153 at 1161 per Lord Denning, the Privy Council described the right to be heard as one of the essential characteristics of natural justice. But he pointed out:

‘If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them . . . It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.’

Lord Morris of Borth-y-Gest repeated this ruling in Ridge v Baldwin [1963] 2 All ER 66 at 102, [1964] AC 40 at 113–114:

‘It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet; see Kanda v Government of The Federation of Malaya. My lords, here is something which is basic to our system: the importance of upholding it far transcends the significance of any particular case.’

Much more recently, and in a convention context, Lord Hope of Craighead described the right to a fair trial as ‘fundamental and absolute’ (see Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 at 129, [2003] 1 AC 681 at 719) and in DS v HM Advocate [2007] UKPC 36 at [17], [2007] 5 LRC 563 at [17], 2007 SC (PC) 1, Lord Hope of Craighead referred to and reaffirmed earlier observations to the effect that—

‘the overriding right guaranteed by article 6(1) was a fundamental right which did not admit of any balancing exercise, and that the public interest could never be invoked to deny that right to anybody in any circumstances . . .’

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[30] Similar statements may be found elsewhere. In Charkaoui v Minister of Citizenship and Immigration 2007 SCC 9 at [53], [2007] 5 LRC 95 at [53], McLachlin CJ, for the Supreme Court of Canada, observed: ‘Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case.' That right was not absolute and might be limited in the interests of national security (at [57], [58]) but (at [64]):

‘The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?’

In the recent case of Hamdi v Rumsfeld (2004) 542 US 507 at 533, O’Connor J, writing for the majority, said:

‘We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. [Authority, cited.] For more than a century the central meaning of procedural due process has been clear: “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified . . .” These essential constitutional promises may not be eroded.’

[31] Statements to similar effect, less emphatically expressed, are to be found in the Strasbourg case law. In Kostovski v Netherlands (1989) 12 EHRR 434 at 448, 449 (paras 42, 44), a criminal case concerned with anonymous witnesses, the court observed:

‘. . . If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author’s reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious . . .

44. The right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency.’

In McMichael v UK [1995] 2 FCR 718 at 737 (para 80), a family case concerning a child, the court said:

‘Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair—adversarial—trial “means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party”. . .’

Lobo Machado v Portugal (1996) 23 EHRR 79 was a civil case concerning the applicant’s right, in an adversarial hearing, to see and reply to material before the court. ‘That right’, the court ruled (at 98 (para 31))—

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‘means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the Court’s decision.’

In van Mechelen v Netherlands (1997) 2 BHRC 486 at 502 (para 51), a criminal case, the court ruled:

‘In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paras (1) and (3)(d) of art 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage . . .’

In Garcia Alva v Germany (2001) 37 EHRR 335 at 353–354 (para 42), another criminal case, the court said:

‘The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice. However, this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence. Therefore, information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect’s lawyer.’

[32] As the Secretary of State correctly submits, the Strasbourg court has repeatedly stated that the constituent rights embodied in art 6(1) are not in themselves absolute. As it was put in Jasper v UK (2000) 30 EHRR 441 at 471 (para 52), and Fitt v UK (2000) 30 EHRR 480 at 510–511 (para 45) (footnotes omitted):

‘However, as the applicant recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.’

The court has not been insensitive to the special problems posed to national security by terrorism (see, for instance, Murray v UK (1994) 19 EHRR 193 at 222, 226 (paras 47, 58)). It has (as it was said in Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 at 115, [2003] 1 AC 681 at 704) eschewed the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances,

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and has recognised the need for a fair balance between the general interest of the community and the rights of the individual. But even in cases where art 6(1) has not been in issue, the court has required that the subject of a potentially adverse decision enjoy a substantial measure or degree of procedural justice (see Chahal v UK (1996) 1 BHRC 405 at 433 (para 131); Al-Nashif v Bulgaria (2002) 36 EHRR 655 at 678 (para 97)). In Tinnelly & Sons Ltd v UK (1998) 4 BHRC 393 at 415 (para 72), the court held that any limitation of the individual’s implied right of access to the court must not impair the very essence of the right.

[33] Little assistance is gained from R v H [2004] 1 All ER 1269, [2004] 2 AC 134 since the problem in that case related to the withholding by a prosecutor, on national security grounds, of material helpful to a defendant. There was no question of withholding from the defendant material adverse to him and relied on by the prosecutor, and it was held (at [36](6)) that if the fairness of the trial required disclosure to the defendant the prosecutor must either disclose or discontinue. There is also little assistance to be gained from cases where, although evidence is withheld, the person receives an adequate summary, as the Strasbourg court understood to be the Canadian practice (see Chahal v UK (1996) 1 BHRC 405 at 436 (para 144)) and as was found to have been done in the Canadian cases of Minister of Employment and Immigration v Chiarelli [1992] 1 SCR 711 at 745–746 and Re Harkat (2004) 125 CRR (2d) 319 (para 32). There is, again, little help to be gained from reported cases in which the material not disclosed was not relied on, as was found to be so in Bendenoun v France (1994) 18 EHRR 54 at 77–78 (para 52); Jasper v UK (2000) 30 EHRR 441 at 472 (para 55); Fitt v UK (2000) 30 EHRR 480 at 511–512 (para 48). The real problem arises where material is relied on in coming to a decision which the person at risk of an adverse ruling has had no adequate opportunity to challenge or rebut, as in Feldbrugge v Netherlands (1986) 8 EHRR 425 at 436–437 (paras 42, 44); van Mechelen v Netherlands (1997) 2 BHRC 486 at 504–505 (paras 62–65); Lucà v Italy (2001) 36 EHRR 807 at 816 (paras 43–45). In each of these cases the trial was found to be unfair.

[34] In Roberts v Parole Board [2005] UKHL 45, [2006] 1 All ER 39, [2005] 2 AC 738, there was a division of opinion among members of the House on the question (not relevant to these appeals) whether the Parole Board had power to adopt a special advocate regime. The hearing in question had yet to take place, and it could not at that stage be known whether, and to what extent, the board would make a finding adverse to the applicant in reliance on evidence not disclosed to or challengeable by him. I myself doubted (at [19]) whether a decision of the board adverse to the applicant, based on evidence not disclosed even in outline to him or his legal representatives, which neither he nor they had heard and which neither he nor they had had any opportunity to challenge or rebut, could be held to meet the fundamental duty of procedural fairness required (in that case) by art 5(4). Lord Woolf, in the course of a detailed opinion, accepted (at [62]) ‘the overriding obligation for a hearing to meet the requirements of art 5(4) and of appropriate standards of fairness required by domestic law’ and accepted (at [68]) the applicant’s contention that there was ‘a core, irreducible, minimum entitlement’ for him as a life sentence prisoner to be able effectively to test and challenge any evidence which decisively bore on the legality of his detention. He held (at [78]) that if a case were to arise where it was impossible for the board to make use of information that had not been disclosed to the prisoner and, at the same time, protect the prisoner from a denial of his fundamental right to a fair hearing, then the rights of the prisoner would have to take precedence. The applicant had a fundamental right to be treated fairly

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(at [80]) and what would be determinative in a particular case (at [83](vii)) would be whether, looking at the process as a whole, a decision had been taken by the board which involved significant injustice to a prisoner. In the opinion of Lord Steyn the proposed procedure (at [93]) would override a fundamental right of due process and would (at [97]) be contrary to the rule of law. Lord Rodger of Earlsferry associated himself with certain statements of Lord Woolf, including his reference to a fundamental right to be treated fairly, but held (at [112]) that the House could not decide in advance whether the full hearing, with a specially appointed advocate, would meet the requirements of art 5(4). My noble and learned friend Lord Carswell concluded (at [144]) that the interests of the informant and the public should prevail over the interests of the applicant, strong though the latter might be. But he emphasised that he was making a decision in principle on the power of the board to appoint special advocates and their compatibility with art 5(4), and he accepted that there might well be cases in which it would not be fair and justifiable to rely on special advocates. Each case would require consideration on its own facts. I do not understand any of my noble and learned friends to have concluded that the requirements of procedural fairness under domestic law or under the convention would be met if a person entitled to a fair hearing, in a situation where an adverse decision could have severe consequences, were denied such knowledge, in whatever form, of what was said against him as was necessary to enable him, with or without a special advocate, effectively to challenge or rebut the case against him.

[35] I do not for my part doubt that the engagement of special advocates in cases such as these can help to enhance the measure of procedural justice available to a controlled person. The assistance which special advocates can give has been acknowledged (for instance, in M v Secretary of State for the Home Dept [2004] EWCA Civ 324 at [34], [2004] 2 All ER 863 at [34]), and it is no doubt possible for such advocates on occasion to demonstrate that evidence relied on against a controlled person is tainted, unreliable or self-contradictory. I share the view to which the Strasbourg court inclined in Chahal v UK (1996) 1 BHRC 405 at 433 (para 131), repeated in Al-Nashif v Bulgaria (2002) 36 EHRR 655 at 678 (para 97), that the engagement of special advocates may be a valuable procedure. But, as Lord Woolf observed in Roberts v Parole Board [2006] 1 All ER 39 at [60]: ‘The use of [a special advocate] is, however, never a panacea for the grave disadvantages of a person affected not being aware of the case against him.' The reason is obvious. In any ordinary case, a client instructs his advocate what his defence is to the charges made against him, briefs the advocate on the weaknesses and vulnerability of the adverse witnesses, and indicates what evidence is available by way of rebuttal. This is a process which it may be impossible to adopt if the controlled person does not know the allegations made against him and cannot therefore give meaningful instructions, and the special advocate, once he knows what the allegations are, cannot tell the controlled person or seek instructions without permission, which in practice (as I understand) is not given. ‘Grave disadvantage’ is not, I think, an exaggerated description of the controlled person’s position where such circumstances obtain. I would respectfully agree with the opinion of Lord Woolf in Roberts’s case (at [83](vii)) that the task of the court in any given case is to decide, looking at the process as a whole, whether a procedure has been used which involved significant injustice to the controlled person (see also R (on the application of Hammond) v Secretary of State for the Home Dept [2005] UKHL 69 at [10], [2006] 1 All ER 219 at [10], [2006] 1 AC 603).

[36] It is now necessary to apply these principles to the facts of these two appeals.

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MB

[37] MB is a 24-year-old student, born in Kuwait. He is a British citizen, naturalised as such in January 1998 after his mother was granted indefinite leave to remain. On 1 March 2005 he was seeking to fly to Syria from Manchester Airport when he was stopped and questioned by police officers and officers of the Security Service. On the following day he was at Heathrow, this time seeking to fly to Yemen, when he was again stopped and questioned by the police. His passport was seized and he was released. The content of these interviews is disputed. The Secretary of State asserts that on each occasion MB intended to travel on to Iraq to fight against coalition forces, which MB denies.

[38] On 1 September 2005 the Secretary of State applied to the court under s 3(1)(a) of the 2005 Act for permission to make a non-derogating control order. The application was supported by a witness statement and an open statement with supporting documents. The open statement said, so far as material:

‘3. MB is an Islamist extremist who, as recently as March 2005, attempted to travel to Syria and then Yemen. The Security Service assessment is that MB was intending to travel onwards to Iraq . . .

8. The Security Service is confident that prior to the authorities preventing his travel, MB intended to go to Iraq to fight against coalition forces. Despite having been stopped from travelling once, MB showed no inclination to cancel his plans. The police prevented his travel on a second occasion, and seized his passport . . .’

The Secretary of State’s application was also supported by a closed statement and further documents and an application to withhold the closed material. Permission was granted, subject to minor amendments, under s 3(2)(b) of the Act, and the order was made on 5 September 2005. The obligations imposed on MB by this order, plainly directed to preventing him leaving the country, were very much less stringent than in the cases of JJ, E and AF. Thus he was obliged to live at a specified address, to report to his local police station daily and to surrender his passport, and was forbidden to leave the United Kingdom or enter any airport or sea port, but he was otherwise subject to no geographical restriction, was subject to no curfew and was subject to no restriction on his social contacts. MB served a witness statement and the Secretary of State served a second open statement, which added little, and a second closed statement. The special advocate appointed to represent MB’s interests did not challenge the Secretary of State’s application to withhold the closed material, and accepted that it would not be possible to serve a summary which would not contain information or material the disclosure of which would be contrary to the public interest. The hearing under s 3(10) of the Act took place between 4 and 7 April 2006 before Sullivan J, who gave judgment on 12 April.

[39] In his judgment ([2006] EWHC 1000 (Admin), [2006] All ER (D) 201 (Apr), [2006] HRLR 878 at [66]) the judge recorded the description by counsel for the Secretary of State of his open case as ‘relatively thin’ and referred to part of the passage quoted in the last paragraph above. He observed (at [67]):

‘The basis for the Security Service’s confidence is wholly contained within the closed material. Without access to that material it is difficult to see how, in reality [MB] could make any effective challenge to what is, on the open case before him, no more than a bare assertion.’

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Taking account also of other aspects of the hearing, on some of which he misdirected himself, the judge concluded (at [103]) that MB had not had a fair hearing.

[40] The Court of Appeal thought it plain ([2007] QB 415 at [27]) that the justification for the obligations imposed on MB lay in the closed material, and (at [70]) it was the impact, on the facts of the case, of the provisions in the 2005 Act for the use of closed material that caused the court most concern. But having reviewed some of the authorities, it concluded (at [86]):

‘If one accepts, as we do, that reliance on closed material is permissible, this can only be on terms that appropriate safeguards against the prejudice that this may cause to the controlled person are in place. We consider that the provisions of the [2005 Act] for the use of a special advocate, and of the rules of court made pursuant to paragraph 4 of the Schedule to the [Act], constitute appropriate safeguards, and no suggestion has been made to the contrary.’

[41] The Council of Europe Commissioner for Human Rights, in para 21 of his report referred to at [16], above, and the Joint Committee on Human Rights, in para 76 of its report referred to at [16], above, had difficulty in accepting that a hearing could be fair if an adverse decision could be based on material that the controlled person has no effective opportunity to challenge or rebut. This is not a case (like E’s case) in which the order can be justified on the strength of the open material alone. Nor is it a case in which the thrust of the case against the controlled person has been effectively conveyed to him by way of summary, redacted documents or anonymised statements. It is a case in which, on the judge’s assessment which the Court of Appeal did not displace, MB was confronted by a bare, unsubstantiated assertion which he could do no more than deny. I have difficulty in accepting that MB has enjoyed a substantial measure of procedural justice, or that the very essence of the right to a fair hearing has not been impaired.

AF

[42] Ouseley J observed ([2007] All ER (D) 21 (Apr) at [11]) that the open case for a control order against AF was very short. AF came to the attention of the Security Service before his arrest in May 2006. It was alleged that he had links with Islamist extremists in Manchester, some of whom were affiliated to the Libyan Islamic Fighting Group (LIFG). The LIFG became a proscribed organisation on 14 October 2005. The judge found (at [61]) it to be clear that the essence of the Secretary of State’s case against AF was in the closed material, and AF did not know what the case against him was. The open material disclosed to AF did not give grounds for reasonable suspicion (at [131]), and it was not contended that it did. There were no more than links to extremists, who also had innocent links to him. The judge thought it clear (at [131]) that more than reasonable grounds for suspicion existed, but only on the closed material. The judge was similarly satisfied that a control order was necessary (at [133]) but that conclusion depended on the closed evidence. The judge accepted (at [146]), without qualification, submissions by counsel for AF that no, or at least no clear or significant, allegations of involvement in terrorist-related activity were disclosed by the open material, that no such allegations had been gisted, that the case made by the Secretary of State against AF was in its essence entirely undisclosed to him and that no allegations of wrongdoing had been put to him by

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the police in interview after his arrest, affording him an idea by that side wind of what the case against him might be. Having noted the decision of the Court of Appeal in MB’s case and the decision of the House in Roberts’s case, the judge concluded (at [166]) that there was no clear basis for a finding of incompatibility.

[43] This would seem to me an even stronger case than MB’s. If, as I understand the House to have accepted in Roberts’s case, the concept of fairness imports a core, irreducible minimum of procedural protection, I have difficulty, on the judge’s findings, in concluding that such protection has been afforded to AF. The right to a fair hearing is fundamental. In the absence of a derogation (where that is permissible) it must be protected. In this case, as in MB’s, it seems to me that it was not.

REMEDY

[44] Since a majority of my noble and learned friends are of my opinion on the principles relevant to this issue, it is necessary to consider the question of remedy. In receiving and acting on closed material not disclosed to MB and AF, the courts below acted in strict accordance with the Act and the CPR. It was suggested in argument that the relevant provisions should be read down under s 3 of the 1998 Act, so that they would take effect only when it was consistent with fairness for them to do so. This would be a possible course, and it is plain that the provisions do not operate unfairly in all cases, as where the open material is sufficient to support the making of an order. But I question whether s 3 should be relied on in these cases, first, because any weakening of the mandatory language used by Parliament would very clearly fly in the face of Parliament’s intention, and, secondly, because it might be thought preferable to derogate from art 6, if judged permissible to do so (on which I express no opinion whatever), than to accept any modification of the terms of the Act and the CPR. I therefore see force in the argument that a declaration of incompatibility should be made and the orders quashed. Having, however, read the opinions of my noble and learned friends Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood, I see great force in the contrary argument, and would not wish to press my opinion to the point of dissent. I therefore agree that s 3 should be applied, and the cases referred back, as they propose, for consideration in each case by the judge in the light of the committee’s conclusions.

LORD HOFFMANN.

[45] My Lords, MB is the subject of a control order made by the Secretary of State on 2 September 2005 (with the permission of Ouseley J) on the grounds that he was suspected of being an Islamist extremist who twice tried to go to Iraq to fight against coalition forces. On a review of the case, Sullivan J decided ([2006] EWHC 1000 (Admin), [2006] All ER (D) 201 (Apr), [2006] HRLR 878) that the procedure by which closed material was withheld from MB was inconsistent with his right to a fair trial under art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). He made a declaration of incompatibility under s 4(2) of the 1998 Act. The Court of Appeal reversed this decision and discharged the declaration. MB appeals.

[46] AF is the subject of a control order made by the Secretary of State (with the permission of a judge) on 11 September 2006 (and varied on 18 October 2006) on the grounds that he was suspected of links with Islamist extremists, some of whom were affiliated to the Libyan Islamic Fighting Group, a proscribed terrorist

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organisation. On a review of the case, Ouseley J decided ([2007] EWHC 651 (Admin), [2007] All ER (D) 21 (Apr)) that the restrictions imposed by the order amounted to a deprivation of liberty within the meaning of art 5(1) of the convention. In the absence of a derogation, the order was therefore unlawful. But he rejected a submission that the control order proceedings amounted to the determination of a criminal charge or that the withholding of closed material was inconsistent with AF’s right under art 6 to a fair trial. The judge gave a leapfrog certificate and both sides appeal; the Secretary of State against the ruling on deprivation of liberty and AF against the rulings on art 6.

[47] My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill and gratefully adopt his statement of the various restrictions imposed by the control order made against AF. For the reasons I gave in Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642, I do not think that these restrictions come anywhere near amounting to a deprivation of liberty in the sense contemplated by the convention and I therefore agree that the appeal of the Secretary of State on this point should be allowed.

[48] I also agree with my noble and learned friend that a review of a control order is not the determination of a criminal charge. As a matter of English law, this is beyond doubt. MB and AF are not charged with having committed any breach of the law, let alone a terrorist act. The order is made on the basis of suspicion about what they may do in the future and not upon a determination of what they have done in the past. And the restrictions imposed by the order are for the purpose of prevention and not punishment or deterrence.

[49] It is of course true that domestic law is not conclusive for the purposes of art 6. The term criminal charge has an autonomous convention meaning which cannot be circumvented by the labels affixed in domestic law. But the Strasbourg jurisprudence recognises the distinction between determination and punishment of past guilt and prevention of future suspected wrongdoing (see the cases mentioned at [21] and [23] of Lord Bingham of Cornhill’s opinion, above). We were not referred to any case in which a genuinely preventative measure based on suspicion of future conduct was held to be the determination of a criminal charge. On this point, domestic and convention law agree.

[50] The final question is whether the non-disclosure of the closed material is consistent with the right to a fair trial. On this question, the critical point appears to me to be that material can be withheld only if a judge has decided that disclosure would be contrary to the public interest. It is a judicial decision and not that of the Secretary of State (see para 4(3) of the Schedule to the Prevention of Terrorism Act 2005 and Pt 76 of the Civil Procedure Rules). On the other hand, the Secretary of State may make a control order only if he has reasonable grounds for suspecting that the individual concerned is or has been involved in terrorism-related activity and that an order is necessary for ‘protecting members of the public from a risk of terrorism’. If, on the evidence put before the judge on review, he considers that the decision of the Secretary of State was flawed, the order cannot stand.

[51] Thus a decision that art 6 does not allow the Secretary of State to rely on closed material would create a dilemma: either he must disclose material which the court considers that the public interest requires to be withheld, or he must risk being unable to justify to the court an order which he considers necessary to protect the public against terrorism. It was this dilemma, and the way in which

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it should be resolved, which the Strasbourg court recognised in Chahal v UK (1996) 1 BHRC 405 at 433 (para 131):

‘The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved . . . The Court attaches significance to the fact that, as the intervenors pointed out in connection with art 13 (see para 144 below), in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.’

[52] The court described the Canadian procedure which they recommended as a model at 436 (para 144):

‘. . . a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the state’s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant.’

[53] These remarks were made in the context of detention pending deportation, a deprivation of liberty in respect of which the person detained is entitled under art 5(4) to have the lawfulness of his detention determined by a court. They seem to me a fortiori applicable to an examination of the lawfulness of a non-derogating control order, which by definition involves no deprivation of liberty. The significant feature is that the Strasbourg court recognised that the confidentiality of security material should be maintained and that the state should be entitled to protect the public interest.

[54] The Canadian model is precisely what has been adopted in the United Kingdom, first for cases of detention for the purposes of deportation on national security grounds (as in Chahal v UK) and then for the judicial supervision of control orders. From the point of view of the individual seeking to challenge the order, it is of course imperfect. But the Strasbourg court has recognised that the right to be informed of the case against one, though important, may have to be qualified in the interests of others and the public interest. The weight to be given to these competing interests will depend upon the facts of the case, but there can in time of peace be no public interest which is more weighty than protecting the state against terrorism and, on the other hand, the convention rights of the individual which may be affected by the orders are all themselves qualified by the requirements of national security. There is no Strasbourg or domestic authority which has gone to the lengths of saying that the Secretary of State cannot make a non-derogating control order (or anything of the same kind) without disclosing material which a judge considers it would be contrary to the public interest to disclose. I do not think that we should put the Secretary of State

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in such an impossible position and I therefore agree with the Court of Appeal that in principle the special advocate procedure provides sufficient safeguards to satisfy art 6.

[55] I would therefore dismiss the appeals of MB and AF and allow the appeal of the Secretary of State against AF.

BARONESS HALE OF RICHMOND.

[56] My Lords, on issues (1)–(3) identified by Ouseley J in the case of AF [2007] EWHC 651 (Admin), [2007] All ER (D) 21 (Apr), I have nothing to add to the reasoning and conclusions of my noble and learned friend, Lord Bingham of Cornhill, with which I agree. On issue (4), however, my approach is somewhat different, an approach which I understand to be shared by my noble and learned friends, Lord Carswell and Lord Brown of Eaton-under-Heywood.

[57] The object of all legal proceedings is to do justice according to law: but this is easily said and not so easily done. Doing justice means not only arriving at a just result but arriving at it in a just manner. The overriding objective of the Civil Procedure Rules is to enable the court to deal with cases justly (see CPR 1.1(1)). Of the fundamental importance of the right to a fair trial there can be no doubt. But there is equally no doubt that the essential ingredients of a fair trial can vary according to the subject matter and nature of the proceedings.

[58] The basic requirement is to know the case against one and to have an opportunity of meeting it. But in Official Solicitor v K [1962] 3 All ER 1000 at 1008, [1963] Ch 381 at 405, Upjohn LJ identified more detailed principles of a judicial inquiry: ‘the right to see all the information put before the judge, to comment on it, to challenge it, and if needs be to combat it, and to try to establish by contrary evidence that it is wrong’. However, as Lord Devlin pointed out in the same case in the House of Lords ([1963] 3 All ER 191 at 209, [1965] AC 201 at 238):

‘. . . a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice.’

If, as in that case, the whole object of the proceedings is to protect and promote the best interests of a child, there may be exceptional circumstances in which disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the object of the exercise: the modern principles are explained in Re D (minors) (adoption reports: confidentiality) [1995] 4 All ER 385, [1996] AC 593. A similar approach is taken in the Mental Health Review Tribunal Rules 1983, SI 1983/942, which allow evidence to be withheld from the patient if ‘disclosure would adversely affect the health or welfare of the patient or others’ (see rr 6(4) and 12(2)). But nothing may be withheld from a suitably qualified representative of the patient (see r 12(3)). That representative is then in the difficult position of not being able to share all the information which he has with his client; but overall there may still be a fair trial of the issues.

[59] I mention these examples, not because they are factually similar to the present case, but to show that the problem is not a new one and that there are courts which have long been doing their best to try cases justly even though the ordinary principles of judicial inquiry identified by Upjohn LJ cannot be observed in every particular. If procedure is the servant rather than the master, then dealing with some cases ‘justly’ may sometimes require a rather different

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approach (it follows that I take issue with CPR 76.2, which requires that in control order cases the overriding objective be read and given effect in a way which is compatible with the duty to ensure that information is not disclosed contrary to the public interest, thus apparently requiring that the court deal otherwise than justly with at least some cases).

[60] The examples of cases concerning children and mental patients fall fairly and squarely within the problem which now confronts us in the control order cases. They too are hearings in which civil rights and obligations are determined for the purpose of art 6(1). I emphasise this, because the powerful submissions from JUSTICE ask us to draw a distinction between such a case and, first, the withholding of information which the authorities do not intend to use to prove their case but which might be helpful to the other side (as in R v H, R v C [2004] UKHL 3, [2004] 1 All ER 1269, [2004] 2 AC 134; and the Strasbourg cases cited at [62], below), and second, deportation cases in which the state has a right to deport on grounds of national security (as in Chahal v UK (1996) 1 BHRC 405). While non-disclosure and the use of special advocates might be acceptable in the last two situations, it is argued that it is not acceptable in the first.

[61] But I do not think that we can draw such a clear distinction. Chahal v UK may have been a deportation case in which Mr Chahal had no right to be here, but he had been deprived of his liberty for a very long time with a view to deportation, so his rights under art 5 were clearly engaged. There cannot be such a stark distinction between the requirements of art 5(4) and the requirements of art 6(1) (and see Al-Nashif v Bulgaria (2002) 36 EHRR 655). The same applies to the Mental Health Review Tribunal Rules, where the issue is whether the patient should continue to be deprived of his liberty. If adaptations to enable the case to be dealt with justly are permissible in such cases, they must in principle be permissible in these.

[62] Strasbourg has not yet had to deal with a case exactly on all fours with the present. The principles applicable to disclosure in criminal proceedings were laid down by the Grand Chamber in three cases decided on the same day: Rowe v UK (2000) 8 BHRC 325 at 342–343 (paras 60, 61); Jasper v UK (2000) 30 EHRR 441 at 471 (paras 51, 52); Fitt v UK (2000) 30 EHRR 480 at 510–511 (paras 44, 45); repeated in Edwards v UK (2004) 40 EHRR 593 at 609 (para 46) of the judgment of the Grand Chamber, quoting paras 52 and 53 of the judgment of the Chamber in 2003; see also PG v UK [2001] ECHR 44787/98; Atlan v UK (2001) 34 EHRR 833; Dowsett v UK [2003] All ER (D) 307 (Jun); and most recently in Botmeh v UK [2007] All ER (D) 40 (Jun) at para 37. The most important passage is the following Rowe v UK (2000) 8 BHRC 325 at 342 (para 61):

‘However . . . the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused . . . In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under art 6(1) . . . Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities . . .’

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[63] I take several messages from those cases which are helpful for present purposes. First, even in criminal proceedings, it is recognised that there may be competing interests, which include national security, the need to keep secret police methods of investigation, and to protect the fundamental rights of another person. Secondly, evidence may only be withheld if it is strictly necessary to do so. Thirdly, any difficulties caused to the defence must be ‘sufficiently counterbalanced’ by the measures taken by the judicial authorities, that is, by the court itself. Fourthly, what is sufficient will be specific to the case in question. The European Court of Human Rights will not assess whether the non-disclosure was strictly necessary but will review—

‘whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused.’ (Rowe v UK (2000) 8 BHRC 325 at 343 (para 62).)

Fifthly, however, there is a difference between background information which is not essential to the outcome of the case and evidence which is crucial to its determination (cf, for example, the facts in Edwards v UK and Botmeh v UK). Sixthly, in none of those cases did the court have the assistance of a special advocate as now provided for in that context as well as in control order cases.

[64] In several of the above cases, however, the Strasbourg court contemplated that the use of a special advocate might have solved the problem: this is one of the counter-balancing measures which might be adopted by the judicial authorities. This House too has endorsed their use in non-disclosure claims in criminal proceedings (see R v H, R v C [2004] UKHL 3, [2004] 1 All ER 1269, [2004] 2 AC 134). The guidance given in that case relating to the treatment of material which may weaken the prosecution case or strengthen the defence case (at [36]) could also be applied in control order cases.

[65] However, it is necessary to go further than that, and ask whether the use of a special advocate can solve the problem where the Secretary of State wishes to withhold from the controlled person material upon which she wishes to rely in order to establish her case. We are all agreed that these are not criminal proceedings for the purpose of art 6; in ordinary civil proceedings it is appropriate to give weight to the interests of each side; nevertheless, the state is seeking to restrict the ordinary freedom of action which everyone ought to enjoy, in some cases seriously. It seems probable that Strasbourg would apply very similar principles to those applicable in criminal proceedings, but would be more inclined to hold that the measures taken by the judicial authorities had been sufficient to protect the interests of the controlled person. It would all depend upon the nature of the case; what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be; what steps had been taken to summarise the closed material in support without revealing names, dates or places; the nature and content of the material withheld; how effectively the special advocate had been able to challenge it on behalf of the controlled person; and what difference its disclosure might have made. All of these factors would be relevant to whether the controlled person had been ‘given a meaningful opportunity to contest the factual basis’ for the order (see Hamdi v Rumsfeld 542 US 507 (2004) at 509 per O’Connor J).

[66] I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been

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used, as contemplated by the Prevention of Terrorism Act 2005 and Pt 76 of the Civil Procedure Rules, would be sufficient to comply with art 6. However, with strenuous efforts from all, difficult and time consuming though it will be, it should usually be possible to accord the controlled person ‘a substantial measure of procedural justice’. Everyone involved will have to do their best to ensure that the ‘principles of judicial inquiry’ are complied with to the fullest extent possible. The Secretary of State must give as full as possible an explanation of why she considers that the grounds in s 2(1) are made out. The fuller the explanation given, the fuller the instructions that the special advocates will be able to take from the client before they see the closed material. Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism. There is ample evidence from elsewhere of a tendency to over-claim the need for secrecy in terrorism cases (see Serrin Turner and Stephen J Schulhofer The Secrecy Problem in Terrorism Trials (2005) Brennan Centre for Justice at NYU School of Law). Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client’s instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in CPR 76.24, the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge.

[67] The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing. It is highly significant that, in AF’s case, Ouseley J concluded ([2007] All ER (D) 21 (Apr) at [167]):

‘I should add that looking at the nature of the issue, namely necessary restrictions on movement in an important interest, and at the way in which the special advocates were able to and did deal with the issues on the closed material, I do not regard the process as one in which AF has been without a substantial and sufficient measure of procedural protection.’

That is a judgment with which any appeal court should be slow to interfere.

[68] But there may still be a few cases in which, under the scheme set out in the 2005 Act and the CPR, this is not possible. The material which is crucial to demonstrating the reasonable basis of the Secretary of State’s suspicions or fears cannot be disclosed in any way which will enable the controlled person to give such answer as he may have. What is to happen then? The key provisions are in the Schedule to the 2005 Act. Paragraph 4(2)(a) provides that rules of court may—

‘make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one).’

More importantly, para 4(3)(d) provides that rules of court must secure ‘that the relevant court is required to give permission for material not to be disclosed where it considers that disclosure of the material would be contrary to the public interest’. This is carried through into CPR 76.2(2): ‘The court must ensure that

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information is not disclosed contrary to the public interest.' Further, in CPR 76.29(8): ‘The court must give permission to the Secretary of State to withhold closed material where it considers that the disclosure of that material would be contrary to the public interest.' Disclosure contrary to the public interest is widely defined in CPR 76.1(4):

‘For the purpose of this Part, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.’

[69] On the face of it, therefore, the judge is precluded from ordering disclosure even where he considers that this is essential in order to give the controlled person a fair hearing. This would not matter if he were then in a position to refuse to uphold the order. However, he will have had all the relevant material which was available to the Secretary of State placed before him (see Schedule, para 4(3)(a) and CPR 76.27). The obvious intention is that he should take it into account even though it remains closed to the controlled person. Section 3(12) allows him to quash the order, to quash one or more of the obligations in the order, or to direct that the Secretary of State revoke or modify the order, but only if he considers that a decision of the Secretary of State was flawed. Section 3(13) provides: ‘In every other case the court must decide that the control order is to continue in force.’

[70] But the judge is also a public authority for the purpose of the Human Rights Act 1998 and thus under a duty to act compatibly with the European Convention for the Protection of Human Rights And Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998 Act) unless precluded from doing so by primary legislation which cannot be read in any other way (see 1998 Act, s 6(1),(2) and (3), and 2005 Act s 11(2)). If, despite all the efforts of the judge and the special advocates to ensure that there is a fair hearing, the judge determines that the hearing cannot be fair unless more material is disclosed, the convention rights require that he be in a position to quash the order. On the face of it, therefore, s 3(13) of the Act may on occasions produce a result which is incompatible with the convention rights. However, this will not be so in every case. Indeed, my view is that the procedures can be made to work fairly and compatibly in many cases. It would not, therefore, be appropriate to make a declaration of incompatibility. The matter can be dealt with in a different way.

[71] A similar situation arose in R (on the application of Hammond) v Secretary of State for the Home Dept [2005] UKHL 69, [2006] 1 All ER 219, [2006] 1 AC 603. This concerned para 11(1) of Sch 22 to the Criminal Justice Act 2003, which provided that a single judge should set minimum terms for certain prisoners sentenced to life imprisonment ‘without an oral hearing’. Yet in some but not all cases a hearing would be necessary if the judge was to adjudicate fairly. Rather than declare the provision incompatible, it was read subject to an implied condition that the judge had power to order a hearing where this was required in order to comply with the prisoner’s rights under art 6. Admittedly, in that case it was not argued that such an interpretation was not possible under s 3 of the 1998 Act: the government invited the court to take that course (mindful no doubt that a very similar course was taken in the leading case of R v A [2001] UKHL 25, [2001] 3 All ER 1, [2002] 1 AC 45 and wishing to save the provision if it could). In this case the Secretary of State has argued that such an interpretation of the 2005 Act

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is not possible, but has not convincingly explained why it was possible in Hammond’s case and is not possible here. I share the view of Lord Bingham of Cornhill, at [44], above, that this would be a possible course. If it is possible, then s 3(1) of the 1998 Act requires that it be done.

[72] In my view, therefore, para 4(3)(d) of the Schedule to the 2005 Act, should be read and given effect ‘except where to do so would be incompatible with the right of the controlled person to a fair trial’. Paragraph 4(2)(a) and CPR 76.29(8) would have to be read in the same way. This would then bring into play CPR 76.29(7), made under para 4(4) of the Schedule. Where the court does not give the Secretary of State permission to withhold closed material, she has a choice. She may decide that, after all, it can safely be disclosed (experience elsewhere in the world has been that, if pushed, the authorities discover that more can be disclosed than they first thought possible). But she may decide that it must still be withheld. She cannot then be required to serve it. But if the court considers that the material might be of assistance to the controlled person in relation to a matter under consideration, it may direct that the matter be withdrawn from consideration by the court. In any other case, it may direct that the Secretary of State cannot rely upon the material. If the Secretary of State cannot rely upon it, and it is indeed crucial to the decision, then the decision will be flawed and the order will have to be quashed.

[73] Not only, in my view, are we required by Parliament to take this course if it is possible. There are several reasons why it is desirable for us to do so. First, when Parliament passed the 2005 Act, it must have thought that the provisions with which we are concerned were compatible with the convention rights. In interpreting the Act compatibly we are doing our best to make it work. This gives the greatest possible incentive to all parties to the case, and to the judge, to conduct the proceedings in such a way as to afford a sufficient and substantial measure of procedural justice. This includes the Secretary of State, who will, of course, be anxious that the control order be upheld. A declaration of incompatibility, on the other hand, would allow all of them to conduct the proceedings in a way which they knew to be incompatible. Secondly, there is good reason to think that Strasbourg would find proceedings conducted in accordance with the Act and rules compatible in the majority of cases. Inviting a derogation in order to cater for the minority where it might not so find may risk even greater incursions into the fundamental requirements of a fair trial which have not yet been shown to be necessitated by the exigencies of the situation. Thirdly, and above all, there are powerful policy reasons in support of procedures which enable cases to be proven through the evidence of infiltrators and informers rather than upon evidence which may have been obtained through the use of torture. Not only is the latter abhorrent, there is good reason to believe that it is generally unreliable and counter-productive. This House has ruled that such evidence is always inadmissible, but has placed the burden of proving this upon the person who wishes to challenge it (see A v Secretary of State for the Home Dept (No 2) [2005] UKHL 71, [2006] 1 All ER 575, [2006] 2 AC 221). It is particularly difficult for a person subject to control order proceedings to do this. Devising a sufficient means of challenging the evidence is an incentive to the authorities to rely on better and more reliable sources of intelligence. That may sometimes mean keeping their identity, and sometimes some of the surrounding circumstances, secret. But that is an overall price worth paying for the good of all.

[74] It follows that I cannot share the view of Lord Hoffmann, that the use of special advocates will always comply with art 6; nor do I have the same difficulty

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as Lord Bingham of Cornhill in accepting that the procedure could comply with art 6 in the two cases before us. It is quite possible for the court to provide the controlled person with a sufficient measure of procedural protection even though the whole evidential basis for the basic allegation, which has been explained to him, is not disclosed.

[75] In the case of MB, the Court of Appeal corrected the major premise which underpinned the declaration of incompatibility made by the trial judge: that the court was limited to reviewing the Secretary of State’s decision on the basis of the information available to her when that decision was made. But the Court of Appeal also took the view that the use of a special advocate constituted an appropriate safeguard (see [2006] EWCA Civ 1140 at [86], [2007] QB 415 at [86], [2006] 3 WLR 839). They allowed the Secretary of State’s appeal and ordered that the validity of the control order be reconsidered. That remains the appropriate outcome, although the case now falls to be reconsidered in the light of the majority opinions in this House.

[76] The case of AF is more difficult, because of the judge’s view that there had been a ‘substantial and sufficient measure of procedural protection’. It is tempting, therefore, simply to allow the Secretary of State’s appeal on the first (the deprivation of liberty) issue and leave the control order in place. However, the judge had already concluded that the control order should be quashed as a deprivation of liberty; moreover he was bound by the decision of the Court of Appeal in MB’s case. In fairness, AF should have the opportunity of having his case heard in accordance with the approach approved in this House. I would therefore send that case back also.

LORD CARSWELL.

[77] My Lords, the four issues in AF’s appeal have been set out at [3], above, of the opinion of my noble and learned friend Lord Bingham of Cornhill and I need not repeat them. The issue in MB’s appeal is similar to that in the fourth issue of AF’s appeal, and is in essence whether the control orders can stand in the light of the withholding of closed material from the appellants, taking into account the use of special advocates at their hearings.

[78] On the first issue in AF’s case, whether the effect of the control order was a deprivation of his liberty within the meaning of art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998), I would refer to my opinion in Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642. For the reasons which I set out in that opinion I do not consider that AF was deprived of his liberty by the control order. I cannot agree with Ouseley J’s conclusion on this issue, on which the Secretary of State is entitled to succeed. The second issue accordingly does not arise. I would allow the Secretary of State’s appeal on these issues.

[79] The third issue is whether non-derogating control order proceedings constitute the determination of a criminal charge within the meaning of art 6 of the convention. I agree with the conclusion expressed by Lord Bingham of Cornhill (at [24], above) that it does not, and with his reasons for reaching that conclusion. It is not in dispute that the civil limb of art 6(1) applies to the examination of control orders by the courts and the person subject to such an order (to whom I shall refer for convenience, albeit inelegantly, as the controlee) is entitled to a fair hearing. The question of what prevents a hearing from being fair brings one to the fourth issue.

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[80] The necessity to furnish a controlee with sufficient material to understand the case made against him and to be in a position to contest it is very clearly established, and it is not necessary for me to cite the many authorities on the point. It is recognised, however, both in domestic law and in the Strasbourg jurisprudence that in some contexts it may be legitimate to withhold a certain amount of significant material from a party where there are sufficiently strong countervailing reasons to set against the individual’s right grounded in art 6 to have knowledge of and be able to contest the case against him. The European Court of Human Rights accepted in Edwards v United Kingdom (2004) 40 EHRR 593 at 609 (para 46) that the safeguarding of an important public interest may at times justify the withholding of evidence. In Rowe v UK (2000) 8 BHRC 325 at 342–343 the court said:

‘61. However, as the applicants recognised . . . the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused . . . In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under art 6(1) . . . Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities . . .

62. In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them . . . Instead, the European Court’s task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused.’

The need to protect a state’s citizens from the risk of terrorist attack is one of the most important and pressing competing interests, as the European Court of Human Rights has recognised in a series of decisions (see, eg, Klass v Germany (1978) 2 EHRR 214, Murray v UK (1994) 19 EHRR 193 and Chahal v UK (1996) 1 BHRC 405).

[81] The European Court has also accepted that expedients such as the use of special advocates may in principle give sufficient protection to the individual’s rights to satisfy the requirements of art 6. In Chahal v UK it said (at 433):

‘131. The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved . . . The Court attaches significance to the fact that, as the intervenors pointed out in connection with art 13 . . . in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be

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employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.’

The reference to these techniques is to the use of special advocates to represent the interests of the individual concerned, which the court described in more detail at 436 (para 144). Similarly, in Al-Nashif v Bulgaria (2002) 36 EHRR 655 the court noted United Kingdom legislation providing for the appointment of special counsel and went on to say (at 678):

‘97. Without expressing in the present context an opinion on the conformity of the above system with the Convention, the Court notes that, as in the case of Chahal, there are means which can be employed which both accommodate legitimate national security concerns and yet accord the individual a substantial measure of procedural justice.’

The court did, however, define a limit to this in Tinnelly & Sons Ltd v UK (1998) 4 BHRC 393 at 415 (para 72), where it stated that limitations must not restrict or reduce the individual’s access to the court ‘in such a way or to such an extent that the very essence of the right is impaired’. The House was referred to a litany of cases in which the European Court held that where material had been withheld from an individual there was a breach of art 6, but in none of them was a special advocate employed to represent his interests, and accordingly the assistance to be derived from these decisions is limited.

[82] The House has had occasion to consider the use of special advocates on a couple of occasions. One cannot obtain much assistance from the decision in R v H, R v C [2004] UKHL 3, [2004] 1 All ER 1269, [2004] 2 AC 134, where the issues which arose were not comparable with those in the present appeals. More can be gained, however, from Roberts v Parole Board [2005] UKHL 45, [2006] 1 All ER 39, [2005] 2 AC 738, notwithstanding the differences in context and governing legislation. This case has been discussed by Lord Bingham of Cornhill at [34] of his opinion, above, and I shall not rehearse the details of the issues. The members of the Appellate Committee were all conscious of the grave extent of the disadvantage imposed upon the individual if material is withheld from his legal representatives as well as himself and his interests are represented only by a special advocate. As in Roberts’s case, I would not seek to minimise these disadvantages, and in the present context the impact upon the individual’s interests is at least as significant as in a parole hearing. The majority were, however, prepared to accept that the Parole Board had in principle power to withhold information and appoint special advocates to represent prisoners’ interests, while declining to decide at that stage on the fairness of their use in the appeal before the House. They emphasised that their decision only extended to accepting in principle that the use of a special advocate did not necessarily infringe the right to a fair hearing, but were not prepared to hold that that procedure would constitute a fair procedure in all cases. Lord Woolf said (at [83]):

‘What will be determinative in a particular case is whether looking at the process as a whole a decision has been taken by the board using a procedure that involves significant injustice to the prisoner. If there has been, the decision should be quashed.’

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[83] In the present case one has to balance two interests, that of the controlee and the public interest, without the added factor of protecting the informant. Both interests are clear and strong, but in my opinion it is possible to accommodate both with an appropriate balance. The House was referred to a number of expressions of concern about the limits on the value of the representation of a controlee’s interests afforded by a special advocate. Lord Woolf CJ remarked, however, in the Court of Appeal in M v Secretary of State for the Home Dept [2004] EWCA Civ 324 at [34], [2004] 2 All ER 863 at [34]:

‘(i) Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC. (ii) We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process.’

[84] In MB’s case Sullivan J concluded that there was inherent unfairness in a hearing under s 3(10) of the Prevention of Terrorism Act 2005 and proceeded to make a declaration of incompatibility. But that remedy is to be regarded as a measure of last resort, to be avoided unless it is plainly impossible to do so (see R v A [2001] UKHL 25 at [44], [2001] 3 All ER 1 at [44], [2002] 1 AC 45 per Lord Steyn). I do not consider that the provisions of the 2005 Act and CPR Pt 76 are necessarily incapable of being made to operate compatibly with art 6. It seems to me possible to imply into them, and in particular into para 4(2)(a) and 4(3)(d) of the Schedule to the 2005 Act, a qualification that the powers conferred do not extend to withholding particulars of reasons or evidence where to do so would deprive the controlee of a fair trial. The House adopted a comparable course in R v A, when it was willing (Lord Hope of Craighead dubitante) to imply a provision into s 41 of the Youth Justice and Criminal Evidence Act 1999 that evidence or questioning which was required to ensure a fair trial under art 6 should not be treated as inadmissible (see [45] per Lord Steyn). Similarly, in R (on the application of Hammond) v Secretary of State for the Home Dept [2004] EWHC 2753 (Admin), [2005] 4 All ER 1127, the Divisional Court was willing to interpolate a qualification such as that which I propose into para 11(1) of Sch 22 to the Criminal Justice Act 2003. Before the House ([2005] UKHL 69, [2006] 1 All ER 219, [2006] 1 AC 603) the Secretary of State expressly accepted that if para 11(1) was found to be incompatible with the convention, it should be read subject to such an implied condition. It was therefore unnecessary to reach a considered decision on whether such an interpolation would be sustainable, but although Lord Hoffmann described it as a ‘bold exercise in “interpretation”’, the House accepted it.

[85] There is a very wide spectrum of cases in which closed material is relied on by the Secretary of State. At one extreme there may be cases in which the sole evidence adverse to the controlee is closed material, he cannot be told what the evidence is or even given its gist and the special advocate is not in a position to take sufficient instructions to mount an effective challenge to the adverse allegations. At the other end there may be cases where the probative effect of the closed material is very slight or merely corroborative of strong open material and there is no obstacle to presenting a defence. There is an infinite variety of possible cases in between. The balance between the open material and the closed material and the probative nature of each will vary from case to case. The special advocate may be able to discern with sufficient clarity how to deal with the closed material

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without obtaining direct instructions from the controlee. These are matters for the judge to weigh up and assess in the process of determining whether the controlee has had a fair trial. The assessment is, as Lord Woolf said in Roberts v Parole Board [2006] 1 All ER 39 at [77], fact specific. The judge who has seen both the open and the closed material and had the benefit of the contribution of the special advocate is in much the best position to make it. I do consider, however, that there is a fairly heavy burden on the controlee to establish that there has been a breach of art 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight. The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of art 6.

[86] In MB’s case Sullivan J stated ([2006] EWHC 1000 (Admin) at [67], [2006] All ER (D) 201 (Apr) at [67], [2006] HRLR 878), and it has not been the subject of dispute, that the evidence implicating MB in terrorist activities is wholly contained within the closed material. He stated his view at [74] that where the substantial part of the case against him was not disclosed to the controlee, it was difficult to see how the very essence of his right of access to the court was not impaired. He did take the view, however, which the Court of Appeal declared to be incorrect, that the court could not take into account any potentially exculpatory information identified by the special advocate which might cast a different and less unfavourable light on the closed material. I would send the matter back to the Administrative Court to review the overall fairness of the appeal hearing in the light of the opinions of the House and those of the Court of Appeal. The Court of Appeal proposed to take this course and I accordingly would uphold its decision and dismiss MB’s appeal, though for my own somewhat differing reasons, which accord with those given by my noble and learned friends Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood.

[87] In AF’s case Ouseley J accepted ([2007] EWHC 651 (Admin) at [146], [2007] All ER (D) 21 (Apr) at [146]) that ‘no, or at least no clear or significant, allegations of involvement in terrorist-related activity are disclosed by the open material, nor have any such allegations been gisted’. Again, this finding has not been challenged. As in MB’s case, it is difficult to see how this could constitute a fair hearing, unless the contribution of the special advocate was such as to make a significant difference. The judge referred (at [167]) to ‘the way in which the special advocates were able to and did deal with the issues on the closed material’, but it is not spelled out in the judgment how significant their contribution was. The judge has not made a decision on the overall fairness of the hearing and its compliance with art 6, and in these circumstances I would allow the Secretary of State’s appeal, reverse the judge’s order quashing the control order and send the case back to the Administrative Court for reconsideration in the light of the opinions expressed by the House.

LORD BROWN OF EATON-UNDER-HEYWOOD.

[88] My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and gratefully adopt his exposition of the relevant facts and law and his identification of the issues now arising on these two appeals.

[89] AF’s control order subjected him to a 14-hour curfew. For the reasons given in my judgment in Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642 I do not regard that as involving a sufficient

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degree of physical confinement to constitute a deprivation of liberty as opposed to a restriction of AF’s freedom of movement. Plainly it is a very severe restriction on that freedom and by virtue of that restriction together with the various additional restrictions inherent in the other conditions and circumstances of AF’s order it interferes too with a number of AF’s rights under the European Convention for the Protection of Human Rights And Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (most notably perhaps those under arts 8, 9 and 10). But these are all qualified rights (as too would be AF’s right to freedom of movement had the United Kingdom in fact conferred it upon him by ratifying the Fourth Protocol) and it is noteworthy that neither AF nor, indeed, any of the other appellants before your Lordships have sought to challenge the justification for these various restrictions nor their proportionality. I accordingly agree with all your Lordships that the Secretary of State’s appeal should succeed on this aspect of AF’s case.

[90] With regard to AF’s cross appeal on the art 6 issues, and MB’s appeal against the Court of Appeal’s ruling that s 3 of the 2005 Act is compatible with his right to a fair hearing under art 6 of the convention, I agree with much of Lord Bingham of Cornhill’s opinion. In particular I agree with his conclusions at [24], above, that non-derogating control order proceedings do not involve the determination of a criminal charge but that nevertheless those against whom such orders are proposed or made are entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences. I agree too with Lord Bingham’s convincing analysis of the authorities at [25]–[34], above, and his conclusion at [35] that the court’s task in any given case is to decide whether the process as a whole has occasioned significant injustice to the person concerned (the suspect). I agree further that the special advocate procedure, highly likely though it is that it will in fact safeguard the suspect against significant injustice, cannot invariably be guaranteed to do so. There may perhaps be cases, wholly exceptional though they are likely to be, where, despite the best efforts of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the Secretary of State’s case to enable the suspect to advance any effective challenge to it. Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at—consider, for example, the judge’s remarks in AF’s own case, set out by my noble and learned friend Baroness Hale of Richmond at [67] of her opinion, above), he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect. In short, the suspect in such a case would not have been accorded even ‘a substantial measure of procedural justice’ (see Chahal v UK (1996) 1 BHRC 405 at 433 (para 131)) notwithstanding the use of the special advocate procedure; ‘the very essence of [his] right [to a fair hearing] [will have been] impaired’ (see Tinnelly & Sons Ltd v UK (1998) 4 BHRC 393 at 415 (para 72)).

[91] I cannot accept that a suspect’s entitlement to an essentially fair hearing is merely a qualified right capable of being outweighed by the public interest in protecting the state against terrorism (vital though, of course, I recognise that public interest to be). On the contrary, it seems to me not merely an absolute right but one of altogether too great importance to be sacrificed on the altar of terrorism control. By the same token that evidence derived from the use of torture must always be rejected so as to safeguard the integrity of the judicial process and avoid bringing British justice into disrepute (see A v Secretary of State

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for the Home Dept (No 2) [2005] UKHL 71, [2006] 1 All ER 575, [2006] 2 AC 221), so too in my judgment must closed material be rejected if reliance on it would necessarily result in a fundamentally unfair hearing.

[92] The judges in AF’s and MB’s cases both appear to have regarded the disclosure made (or capable of being made consistently with the public interest) as insufficient to allow of any effective challenge. In these circumstances I agree with the majority of my noble and learned friends that both cases should now be remitted to the Administrative Court for a final decision as to whether nonetheless it is possible to confirm the control orders consistently with there having been overall fairness in the appeal process. If the judges’ final decision is that the control orders cannot fairly be made, then, in common with Lord Carswell and Baroness Hale of Richmond, with both of whose reasoning on this part of the case I entirely agree, rather than make a declaration of incompatibility, I would instead invoke s 3 of the 1998 Act in the manner and with the consequences they suggest.

MB’s appeal and AF’s cross-appeal dismissed. The Secretary of State’s appeal allowed. Both cases remitted to the High Court for reconsideration.

Dilys Tausz Barrister.

Secretary of State for the Home Department v E and another

[2008] 1 All ER 699

[2007] UKHL 47

Categories:        HUMAN RIGHTS; Liberty: INTERNATIONAL; International Criminal Law        

Court:        HOUSE OF LORDS        

Lord(s):        LORD BINGHAM OF CORNHILL, LORD HOFFMANN, BARONESS HALE OF RICHMOND, LORD CARSWELL AND LORD BROWN OF EATON-UNDER-HEYWOOD        

Hearing Date(s):        5, 9, 10–13 JULY, 31 OCTOBER 2007        

Human rights – Right to liberty and security – Prevention of terrorism – Control order – Non-derogating control order – Criminal investigations after making of control order – Duty to secure that investigation of individual’s conduct with view to prosecution for terrorism-related offence kept under review during period of control order – Duty to consult chief officer of police about evidence available for purposes of prosecution – Whether consultation condition precedent to making of control order – Secretary of State making non-derogating control order against individual suspected of involvement in terrorism-related activity – Control order requiring each individual to remain in specified residence for 12 hours per day and prohibiting contact with most other persons unless previously authorised – Whether obligations in control order breaching right to liberty – Nature of Secretary of State’s duty to review and consult – Human Rights Act 1998, Sch 1, Pt I, art 5(1) – Prevention of Terrorism Act 2005, ss 2(1), 8(2), (4).

In March 2005 the Secretary of State made a non-derogating control order against E under the Prevention of Terrorism Act 2005. The requirements of s 2(1)a of the 2005 Act under which the Secretary of State could make a control order included that the Secretary of State had reasonable grounds for suspecting that the individual was or had been involved in terrorism-related activity. The obligations imposed by that control order (which was later renewed) included that he wear an electronic tag and reside at a specified address. Permission of the Home Office was required in advance for most visitors and advance Home Office agreement was required in advance if he wished to attend most pre-arranged meetings outside his residence. His residence was liable to be searched by the police at any time. He was subject to a curfew from 7 pm to 7 am; the residence specified in the order was his own home, where he had lived for some years, in a part of London with which he was familiar and Home Office permission was not required in advance to receive visitors under the age of ten; five members of his wider family lived in the area, and had been approved as visitors; and he was subject to no geographical restriction during non-curfew hours, was free to attend a mosque of his choice, and was not prohibited from associating with named individuals. In September 2003 first instance judgments were given by a Belgian court and affirmed on appeal in Belgium on February 2005, whose effect was to implicate E in terrorist-related activity. The Secretary of State learned of them in September 2005, after the control order had been made against E but before it was renewed. He received copies of the judgments in November 2005,

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and English translations became available in January 2006. Before renewal of the order in March 2006 the chief officer of police informed the Secretary of State that there was insufficient evidence to prosecute. However, neither the police nor the Crown Prosecution Service had received copies of the judgments. They had, however, been part of the open evidence relied on by the Secretary of State since September 2006. Section 8b of the 2005 Act applied where it appeared to the Secretary of State that the involvement in terrorism-related activity of which an individual was suspected might have involved the commission of an offence relating to terrorism and that the commission of that offence was being or would fall to be investigated by a police force. Under s 8(2) the Secretary of State had to consult the chief officer of the police force about whether there was evidence available that could realistically be used for the purposes of a prosecution of an individual for an offence relating to terrorism before making, or applying for the making of, a control order against the individual. If a control order was made the Secretary of State had to inform the chief police officer and under s 8(4) it was then the duty of the chief officer to secure that the investigation of the individual’s conduct with a view to his prosecution for an offence relating to terrorism was kept under review throughout the period during which the control order has effect. In carrying out his functions the chief police officer had to consult the relevant prosecuting authority but that requirement could be satisfied by consultation that had taken place wholly or partly before the passing of the 2005 Act. At the supervisory High Court hearing E contended (i) that the effect of the control order was to deprive him of his liberty in violation of art 5c of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998), and (ii) that the Secretary of State had breached his duty under s 8(2) of the 2005 Act in relation to consideration of criminal prosecution. The judge quashed the control order, having concluded that the cumulative effect of the restrictions was to deprive E of his liberty in breach of art 5 of the convention. He rejected the argument that compliance by the Secretary of State with his duty under s 8(2) was a condition precedent to his power to make a control order. The Court of Appeal allowed the Secretary of State’s appeal and E appealed to the House of Lords.

Held – (1) The non-derogating control order had not deprived E of his right to liberty in breach of art 5(1) of the convention. The Court of Appeal had treated physical liberty as the starting point and central issue and correctly considered that the core element of confinement, an overnight curfew of 12 hours, to which

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the other obligations were ancillary, was insufficiently stringent to deprive E of his liberty (see [10]–[12], [23]–[25], [29], [31], [35], [36]), below); Secretary of State for the Home Dept v JJ [2008] 1 All ER 613 distinguished.

(2) Compliance by the Secretary of Secretary of State with his duty under s 8(2) of the 2005 Act was not a condition precedent to his power to make a control order in a case falling within s 8(1). Section 2(1) of the 2005 Act prescribed the circumstances in which the Secretary of State could make a non-derogating control order and compliance with the s 8(2) duty was not included as a qualifying condition. However s 8(2) was expressed in strong mandatory terms and the duty was to be taken seriously. When the Secretary of State sought permission from the court to make a non-derogating control order or where an order had been referred to the court, the court should, as a matter of strict routine, seek to be satisfied that the s 8(2) duty had been complied with and require very convincing reasons for any omission of that duty. Under s 8(4) the duty of keeping the possibility of prosecution under review was laid upon the chief officer of police but it was implicit in the duty of the Secretary of State to keep the decision to impose a control under review that the Secretary of State had to do what he reasonably could to ensure that the continuing review was meaningful so that it was incumbent on him to provide the police with any material in his possession which was or might be relevant to any reconsideration of the prosecution. If in any case it appeared that the duty to consult under s 8(2) or the duty to keep the prospect of prosecution under review had been breached and that but for the breach the individual could and should properly have been prosecuted with a reasonable prospect of success there would be strong grounds for contending that the control order was not or was no longer necessary and that the Secretary of State’s decision to make or maintain it had been flawed; it might then be appropriate to quash the order. In the instant case, while it was regrettable that the Belgian judgments had not been made available promptly to the appropriate authorities, the Court of Appeal had been correct to find that even if the Secretary of State had acted diligently and expediently in relation to the Belgian judgments they could not have given rise to a prosecution at any material time. Accordingly, the appeal would be dismissed (see [15]–[18], [20]–[24], [28], [29], [32]–[36], below).

Notes

For the right to liberty and the security of the person, see 8(2) Halsbury’s Laws (4th edn reissue) para 127, and for the power to make control orders, making of non-derogating control orders and criminal investigations after making of control orders, see 11(1) Halsbury’s Laws (4th edn) (2006 reissue) paras 454, 455, 461

For the Human Rights Act 1998, Sch 1, Pt I, art 5, see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 705.

For the Prevention of Terrorism Act 2005, ss 2, 8, see 12(2) Halsbury’s Statutes (4th edn) (2005 reissue) 1854, 1866.

Cases referred to in opinions

Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642.

Secretary of State for the Home Dept v MB, Secretary of State for the Home Dept v AF [2007] UKHL 46, [2008] 1 All ER 657, [2007] 3 WLR 681; affg [2006] EWCA Civ 1140, [2007] QB 415, [2006] 3 WLR 839.

Page 702 of [2008] 1 All ER 699

Cases referred to in list of authorities

A v Secretary of State for the Home Dept [2004] EWCA Civ 1123, [2005] 1 WLR 414.

A v Secretary of State for the Home Dept (No 2) [2005] UKHL 71, [2006] 1 All ER 575, [2006] 2 AC 221.

A v Secretary of State for the Home Dept, X v Secretary of State for the Home Dept [2004] UKHL 56, [2005] 3 All ER 169, [2005] 2 AC 68, [2005] 2 WLR 87; rvsg [2002] EWCA Civ 1502, [2003] 1 All ER 816, [2004] QB 335, [2003] 2 WLR 564; rvsg [2002] HRLR 1274, SIAC.

Äärelä v Finland (Communication No 779/1997) (1997) Selected Decisions of the Human Rights Committee under the Optional Protocol, UN Doc CCPR/C/73/D/779/1997, UN HRC.

Abdulazizi v UK (1985) 7 EHRR 471, [1985] ECHR 9214/80, ECt HR.

Adolf v Austria (1982) 4 EHRR 313, [1982] ECHR 8269/78, ECt HR.

Aerts v Belgium (1998) 5 BHRC 382, ECt HR.

A-G’s Ref (No 2 of 2001) [2003] UKHL 68, [2004] 1 All ER 1049, [2004] 2 AC 72, [2004] 2 WLR 1.

A-G’s Ref (No 4 of 2002) [2003] EWCA Crim 762, [2004] 1 All ER 1, [2005] 1 AC 264, [2003] 3 WLR 1153.

Airey v Ireland (1979) 2 EHRR 305, [1979] ECHR 6289/73, ECt HR.

Ajouaou v Secretary of State for the Home Dept (29 October 2003, unreported), SIAC.

Albert v Belgium (1983) 5 EHRR 533, [1983] ECHR 7299/75, ECt HR.

Al-Nashif v Bulgaria (2002) 36 EHRR 37, [2002] ECHR 50963/99, ECt HR..

Altun v Turkey [2004] ECHR 24561/94, ECt HR.

American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504, [1975] AC 396, [1975] 2 WLR 316, HL.

Amuur v France (1996) 22 EHRR 533, [1996] ECHR 19776/92, ECt HR.

Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC 147, [1969] 2 WLR 163, HL.

Arcuri v Italy App No 52024/99) (5 July 2001, unreported), ECt HR.

Ashingdane v UK (1985) 7 EHRR 528, [1985] ECHR 8225/78, ECt HR.

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2001] EWCA Civ 713, [2001] 3 All ER 393, [2002] Ch 51, [2001] 3 WLR 1323.

B v Chief Constable of Avon and Somerset Constabulary [2001] 1 All ER 562, [2001] 1 WLR 340, DC.

B v France (1987) 52 DR 111, E Com HR.

Barthold v Germany (1985) 7 EHRR 383, [1985] ECHR 8734/79, ECt HR.

Begum (Runa) v Tower Hamlets London BC [2003] UKHL 5, [2003] 1 All ER 731, [2003] 2 AC 430, [2003] 2 WLR 388.

Bendenoun v France (1994) 18 EHRR 54, [1994] ECHR 12547/86, ECt HR.

Benham v UK (1996) 22 EHRR 293, [1996] ECHR 19380/92, ECt HR.

Bird v Jones (1845) 7 QB 742.

Bochan v Ukraine [2007] ECHR 7577/02, ECt HR.

Boddington v British Transport Police [1998] 2 All ER 203, [1999] 2 AC 143, [1998] 2 WLR 639, HL.

Borgers v Belgium (1993) 15 EHRR 92, [1991] ECHR 12005/86, ECt HR.

Brind v UK (1994) 18 EHRR CD 76, E Com HR.

Brinks v Netherlands (2005) 41 EHRR SE5.

Brogan v UK (1988) 11 EHRR 117, [1988] ECHR 11209/84, ECt HR.

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Page 703 of [2008] 1 All ER 699

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Page 705 of [2008] 1 All ER 699

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Appeal

E, the subject of a non-derogating control order under the Prevention of Terrorism Act 2005, and his wife S, appealed with permission of the Court of Appeal (Pill, Wall and Maurice Kay LJJ) given on 25 May 2007 from the courts decision on that date ([2007] EWCA Civ 459, [2007] 3 WLR 1) allowing the appeal of the Secretary of State from the order of Beatson J made on 16 February 2007 ([2007] EWHC 233 (Admin), [2007] HRLR 472) quashing the control order. The National Council for Civil Liberties (Liberty) appeared as an intervener. The facts are set out in the judgment of Lord Bingham of Cornhill.

Ben Emmerson QC, Raza Husain and Helen Law (instructed by Birnberg Peirce & Partners) for E.

Ian Burnett QC, Philip Sales QC, Tim Eicke, Cecilia Ivimy and Andrew O’Connor (instructed by the Treasury Solicitor) for the Secretary of State.

Page 709 of [2008] 1 All ER 699

David Pannick QC and Alex Bailin (instructed by Liberty) for the National Council for Civil Liberties.

Michael Supperstone QC and Judith Farbey (instructed by the Special Advocates Support Office) as special advocates.

Their Lordships took time for consideration.

31 October 2007. The following opinions were delivered.

LORD BINGHAM OF CORNHILL.

[1] My Lords, the effective appellant in this appeal is E, who challenges a non-derogating control order made against him on 12 March 2005 under the Prevention of Terrorism Act 2005. The order has since been varied on occasion but has been renewed and remains substantially in force. E challenges the order on two main grounds pertinent to this appeal: that the effect of the order is to deprive him of his liberty in breach of art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998); and that the Secretary of State has breached his statutory duty in relation to consideration of criminal prosecution. These contentions succeeded at first instance before Beatson J, who quashed the order (see [2007] EWHC 233 (Admin), [2007] HRLR 472). The Court of Appeal (Pill, Wall and Maurice Kay LJJ) allowed on appeal by the Secretary for State and set aside the judge’s order (see [2007] EWCA Civ 459, [2007] 3 WLR 1).

[2] In Secretary of State for the Home Dept v JJ [2007] UKHL 45 at [6]–[11], [2008] 1 All ER 613 at [6]–[11], [2007] 3 WLR 642, I have given a general summary of the main provisions of the 2005 Act. I would refer to, but need not repeat, that summary.

[3] E was born in Tunis on 24 July 1963. He arrived in the United Kingdom in 1994 and applied for asylum. That application was refused but he was granted exceptional leave to remain until 2005. He is married to S, who is some years younger and of Jordanian nationality. They have five children under the age of nine. S has been joined as a party to these proceedings, but she raises no separate issue which remains live for decision.

[4] In December 2001 E was certified by the Secretary of State under s 21 of the Anti-terrorism, Crime and Security Act 2001. He was detained in HM Prison Belmarsh until his release on bail on 10 March 2005 on conditions similar to those of the control order made two days later. There is evidence, accepted by the judge, that since his detention in 2001 E’s mental health has deteriorated and he now suffers from a depressive illness of some severity. The hearing before Beatson J was both a supervisory hearing under s 3 of the 2005 Act in relation to the making of the order and a hearing of E’s appeal against the renewal of the order. The issues were essentially the same.

[5] It was necessary for the judge to consider whether, on the material before him, the Secretary of State’s decisions under s 2(1)(a) and (b) of the 2005 Act (reasonable grounds for suspecting involvement in terrorism and consideration of necessity to impose obligations for the protection of the public) were flawed. He held ([2007] HRLR 472 at [82]) that they were not, being satisfied that the low threshold of reasonable suspicion was crossed by a substantial margin on the basis of the open material alone. This conclusion makes it unnecessary to address, in this case, the question whether reliance on material not disclosed to the controlled person, is compatible with art 6(1) of the convention, a question

Page 710 of [2008] 1 All ER 699

discussed in my opinion in Secretary of State for the Home Dept v MB [2007] UKHL 46 at [25]–[35], [2008] 1 All ER 657 at [25]–[35], [2007] 3 WLR 681.

DEPRIVATION OF LIBERTY

[6] The obligations imposed on E by the control order made on 12 March 2005 and since renewed contain a number of obligations similar to those noted in JJ’s case. Thus, for example, he must wear an electronic tag; he must reside at a specified address; he must report to a monitoring company each day on first leaving his residence and on his last return to it; the permission of the Home Office is required in advance (with name, address, date of birth and photographic evidence of identity supplied) for most visitors to the residence; he must obtain the agreement of the Home Office in advance to attend most pre-arranged meetings outside his residence; his residence is liable to be searched by the police at any time; and he is permitted to have no communications equipment of any kind save for one fixed telephone line and one or more computers, provided any computer is disabled from connecting to the internet.

[7] The obligations imposed on E do, however, differ from those imposed on JJ and others in respects accepted by the courts below as material. The curfew to which he is subject is of 12 hours’ duration, from 7 pm to 7 am, not 18 hours. The residence specified in the order is his own home, where he had lived for some years, in a part of London with which he is familiar. By a variation of the order his residence is defined to include his garden, to which he thus has access at any time. He lives at his home with his wife and family, and Home Office permission is not required in advance to receive visitors under the age of ten. Five members of his wider family live in the area, and have been approved as visitors. He is subject to no geographical restriction during non-curfew hours, is free to attend a mosque of his choice, and is not prohibited from associating with named individuals. The judge found ([2007] HRLR 472 at [231]) that E does not lack a social network, goes to the mosque, takes his older children to school, picks them up, goes shopping and sees family members who live in the area.

[8] Both the courts below reviewed the Strasbourg authority on art 5 and deprivation of liberty. I have endeavoured to summarise the effect of this authority in JJ’s case [2008] 1 All ER 613 at [12]–[19], [2007] 3 WLR 642. I would refer to but need not repeat that summary.

[9] Beatson J gave a lengthy and very careful judgment resolving a number of questions which are no longer germane to this appeal. He concluded ([2007] HRLR 472 at [231]) that very limited weight could be given to E’s mental condition in the context of art 5. He regarded the order as likely to be renewed (see [233]) for successive 12-month periods. He concluded (at [235]) that E was ‘significantly less socially isolated that the controlled persons in the JJ cases’. But he thought it of particular importance (see [238]) that there was the same control over visitors to the home and meetings outside the home, and the same liability to spot checks and searches by the police at any time. It was these features which made the obligations particularly intense (see [240]), somewhat as if he were accommodated in prison. The judge recognised (at [242]) the case as more finely balanced than JJ’s case, but concluded that the cumulative effect of the restrictions was to deprive E of his liberty in breach of art 5 of the convention.

[10] The Court of Appeal ([2007] 3 WLR 1 at [62]) treated physical liberty as the starting point and the central issue, and judged (at [63]) that the degree of physical restraint on E’s liberty was far from a deprivation of liberty in art 5 terms. It discounted (at [64]) the judge’s analogy with prison accommodation and also

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(at [65]) the deterrent effect of the requirement that visitors be approved in advance. It noted (at [69]) the distinctions between the restrictions in this case and those in JJ’s case, and concluded that this case was plainly distinguishable.

[11] As noted in JJ’s case [2008] 1 All ER 613 at [11], [2007] 3 WLR 642, an appeal lies from the court of first instance in control order proceedings only on a point of law. This is a provision of some importance, since the legislation does not permit each successive court in the curial hierarchy to make its own independent evaluation. This is not a point which the Court of Appeal in this case specifically addressed. But 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’s case. 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. This is in my opinion a sound criticism of the judge’s approach, and the Court of Appeal was right to regard this case, on its special facts, as distinguishable from JJ’s case.

[12] I would dismiss E’s appeal on this point.

PROSECUTION

[13] Section 8 of the 2005 Act, so far as material for present purposes, provides:

‘8. Criminal investigations after making of control order.—(1) This section applies where it appears to the Secretary of State—(a) that the involvement in terrorism–related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism; and (b) that the commission of that offence is being or would fall to be investigated by a police force.

(2) Before making, or applying for the making of, a control order against the individual, the Secretary of State must consult the chief officer of the police force about whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism.

(3) If a control order is made against the individual the Secretary of State must inform the chief officer of the police force that the control order has been made and that subsection (4) applies.

(4) It shall then be the duty of the chief officer to secure that the investigation of the individual’s conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.

(5) In carrying out his functions by virtue of this section the chief officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under subsection (4), to the extent that he considers it appropriate to do so.

(6) The requirements of subsection (5) may be satisfied by consultation that took place wholly or partly before the passing of this Act . . .’

[14] In the submission of E, it is a fundamental premise of the 2005 Act in general, and s 8 in particular, that where there are realistic prospects of prosecuting an individual against whom it is proposed to make a control order,

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he will indeed be prosecuted. There is strong support for this contention. In Secretary of State for the Home Dept v MB [2006] EWCA Civ 1140 at [53], [2007] QB 415 at [53], [2006] 3 WLR 839, the Court of Appeal (Lord Phillips of Worth Matravers CJ, Sir Anthony Clarke MR and Sir Igor Judge P) described it as implicit in the scheme of the Act that if there is evidence that justifies the bringing of a criminal charge, a suspect will be prosecuted rather than made the subject of a control order. In its judgment in the present case ([2007] 3 WLR 1 at [73]) the Court of Appeal described it as ‘axiomatic’ that a control order is only made when it is considered that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. Reference was made to a number of strong ministerial assurances in Parliament to this effect. The Secretary of State in his written case accepts that ‘The scheme of the [Act] is that control orders should only be made where an individual cannot realistically be prosecuted for a terrorism-related offence’. Thus there can be no doubt about the governing principle. Nor in my opinion can there be doubt about its importance, since the control order regime is not intended to be an alternative to the ordinary processes of criminal justice, with all the safeguards they provide for those accused, in cases where it is feasible to prosecute with a reasonable prospect of success.

[15] It was argued for E before the judge that compliance by the Secretary of State with his duty under s 8(2) was a condition precedent to his power to make a control order in a case falling within s 8(1) (see Beatson J’s judgment [2007] HRLR 472 at [245]). The judge rejected this argument, holding that the conditions precedent to the making of a control order are set out in s 2(1), this condition could have been included but was not, and it was not necessary to construe s 8(2) as including this condition. The Court of Appeal also rejected it for very much the same reason (see [2007] 3 WLR 1 at [87]). I agree. Section 2(1) of the Act prescribes the circumstances in which the Secretary of State may make a non–derogating control order and compliance with the s 8(2) duty is not included as a qualifying condition. It is nonetheless true, as was urged for E, that s 8(2) is expressed in strong mandatory terms: ‘Before making, or applying for the making of, a control order against the individual, the Secretary of State must . . .' Plainly this duty is to be taken seriously. On the seeking by the Secretary of State of permission from the court to make a non-derogating control order under s 3(1)(a) of the Act or, where an order has been referred to the court under s 3(3)(a), I would expect the court, as a matter of strict routine, to seek to be satisfied that the s 8(2) duty has been complied with and, if it has not, to require very convincing reasons for that omission.

[16] In submissions to the House, it was argued for E that the absence of a realistic prospect of prosecution is a condition precedent to the making by the Secretary of State of a non-derogating control order. Thus the Secretary of State must not only consult under s 8(2), in a case falling within s 8(1), but must be given to understand that it is not feasible to prosecute with a reasonable prospect of success. Unless this was so, it was argued, it could not be ‘necessary’ to impose obligations under a control order, since it would not be shown that the public could not be protected by arresting, charging and prosecuting the individual. This more ambitious submission must also fail, for the reason given in the last paragraph. But there are in my view strong practical reasons for rejecting it. The situation is, by definition, one in which the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorism–related activity (see s 2(1)(a)). He must consider that it is necessary, for

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purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual (see s 2(1)(b)). There may be a need to act with great urgency (see s 3(1)(b)). The potential risk may be very great. It is one thing to require the Secretary of State to consult, as s 8(2) does in cases falling within s 8(1), which is the great majority of cases. But it is quite another to require him to obtain a clear answer: this is something the chief officer of police is unlikely to be in a position to give, he himself being subject to a duty (see s 8(5)) to consult the relevant prosecuting authority which will in turn require time to consider the matter, and very probably to seek the advice of counsel. The condition precedent contended for would have the potential to emasculate what is clearly intended to be an effective procedure, and cannot be taken to represent the intention of Parliament.

[17] I have addressed this matter in some detail, because the general point raised is one of importance. But it has no bearing on the control order made in this case at the time it was made. This is because the judge made a very clear finding, not now challenged, that the Secretary of State did consult the chief officer of police, who did consult the Crown Prosecution Service (CPS), concerning the prospect of successful prosecution before the order was made, and the advice he received was clearly negative (see [2007] HRLR 472 at [251], [254], [258], [266]). The consultation took place before the Act was passed, but such consultation was effective by virtue of s 8(6).

[18] The thrust of E’s argument before the House was directed not to lack of consultation before the order was made on 12 March 2005 but on the Secretary of State’s failure to take steps open to him to ensure that the possibility of prosecution was kept under effective review thereafter. Under s 8(4) of the Act the duty of keeping the prospect of prosecution under review is laid on the chief office of police, in conjunction (where he considers it appropriate (see s 8(5))) with the relevant prosecuting authority. In its judgment in MB’s case [2007] QB 415 at [44], however, the Court of Appeal held it to be implicit in the Act—

‘that it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary. A purposive approach to section 3(10) must enable the court to consider whether the continuing decision of the Secretary of State to keep the order in force is flawed.’

Beatson J followed this ruling in the present case (see [2007] HRLR 472 at [282]). It was argued for the Secretary of State in the Court of Appeal that the Secretary of State, having consulted the chief of police at the outset, need do no more thereafter than make periodic inquiry whether the prospect of prosecution had increased (see [2007] 3 WLR 1 at [96]). But the Court of Appeal held (at [97]) that more was called for:

‘. . . Once it is accepted that there is a continuing duty to review pursuant to MB’s case, it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful . . . it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution . . .’

The Secretary of State, it is understood, now accepts the correctness of this approach, which I would respectfully endorse.

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[19] The materiality of this point arises in this way. On 30 September 2003 first instance judgments were given by a Belgian court, affirmed on appeal in Belgium on 21 February 2005. The effect of the judgments was to implicate E in terrorist-related activity. The Secretary of State learned of these judgments in September 2005, after the control order had been made against E but before it was renewed. He received copies of the judgments in November 2005, and English translations became available in January 2006. Before renewal of the order in March 2006 the chief officer of police informed the Secretary of State that there was insufficient evidence to prosecute. But neither the police nor the CPS has received copies of these judgments. They have, however, as the judge found ([2007] HRLR 472 at [286]), been part of the open evidence relied on by the Secretary of State since September 2006, and were now at the core of the Secretary of State’s open national security case against E. It is pointed out on behalf of E that the Belgian judgments rested in part on intercept evidence which, because obtained abroad, would be admissible in an English court, that the availability of this evidence in the public domain could affect the judgment on whether it was in the public interest to prosecute, and that some of the Belgian material had already been relied on to prosecute defendants in this country.

[20] The judge concluded (at [293]) that the Secretary of State’s failure to consider the impact of the Belgian judgments on the prospects of prosecuting E meant that his continuing decision to maintain the control order was flawed. The breach was not a technical one (see [293]), and the judge would have quashed the order on this ground were he not already quashing it for incompatibility with art 5 (see [310]). The Court of Appeal found ([2007] 3 WLR 1 at [97]) that the judge had been right to find a breach by the Secretary of State of his MB duty to keep the possibility of prosecution under review, even though the decision whether or not to prosecute was clearly not his. The breach ‘arose from the omission of the Secretary of State himself to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration’ (see [99]). But although tending to agree with the judge that the breach was not technical (see [102]), the Court of Appeal differed from him on remedy. It was satisfied (at [103]) that even if the Secretary of State had acted diligently and expeditiously in relation to the Belgian judgments they could not have given rise to a prosecution at any time material to this case. The question to be asked (see [105]) was whether a particular breach had materially contributed to and vitiated the decision to make the control order, and the judge had erred in law in holding without further analysis that the breach justified the remedy of quashing the order.

[21] Counsel for E criticised the Court of Appeal’s reasoning on this point, but I do not think its approach was wrong in principle. It was certainly regrettable that the Belgian judgments were not made available promptly to the appropriate authorities, perhaps suggesting that the duty of continuing review by the Secretary of State was not appreciated before the Court of Appeal’s judgment in MB’s case in August 2006 or, if appreciated, was not treated with the seriousness which its importance deserved. But I do not for my part think that the Court of Appeal’s reasoning in this case can be faulted. If in any case it appeared that the duty to consult under s 8(2) or the duty to keep the prospect of prosecution under review had been breached, and also that but for the breach the individual could and should properly have been prosecuted with a reasonable prospect of success, there would be strong grounds for contending that the control order was not or was no longer necessary and that the Secretary of State’s decision to make or

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maintain it was flawed. It might then be appropriate to quash the order. But the House cannot hold, on the material before it, that that condition was met in this case, and the order should not have been quashed.

[22] On this point also I would dismiss E’s appeal.

LORD HOFFMANN.

[23] My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and I gratefully adopt his exposition of the facts and issues. For the reasons which I gave in my opinion in the case of Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642, I agree that the submission that the control order deprived E of his liberty fails. I also agree, for the reasons given by my noble and learned friend, that the Secretary of State did not fail to comply with the provisions of s 8 of the Act. The appeal must therefore be dismissed.

BARONESS HALE OF RICHMOND.

[24] My Lords, for the reasons given by my noble and learned friends, Lord Bingham of Cornhill and Lord Carswell, I agree that this appeal should be dismissed on both points.

[25] As to the first issue, whatever the point at which the cumulative effect of the restrictions imposed in a control order crosses the boundary into deprivation of liberty, as in my view it did in Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642, that point is not reached in this case. The starting point in any consideration of deprivation of liberty is the ‘core element’ of confinement. The length of the curfew in this case is within the range which Strasbourg has accepted as merely restricting liberty. Nor is there anything to make it more severe: the appellant is confined to his own home with his wife and children; other family members and the children’s friends were allowed to visit. These factors greatly reduce the extent to which he is cut off from society even during the curfew hours. Outside those hours, he is not subject to any geographical restriction and can attend the mosque of his choice. He does have to get Home Office approval for visitors to his home and for pre-arranged meetings outside it and his home is subject to intrusive searches at any time. These may call in question certain other convention rights but do not, on their own, turn his ‘concrete situation’ into one in which he is deprived of his liberty.

[26] As to the second issue, a control order must always be seen as ‘second best’. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course. That is why s 8 was inserted in the Prevention of Terrorism Act 2005. But there are practical difficulties: the Secretary of State does not control the prosecution process. The police investigate and the Crown Prosecution Service decide whether or not to prosecute. There are very good reasons for this division of responsibility: it injects an important element of independence and objectivity into the decision to prosecute. But it makes the task of the Secretary of State, in considering the alternative of prosecution, all the more difficult. She does not have the power to choose between the two.

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[27] It is noteworthy that s 8 does not impose a duty upon the Secretary of State to consider whether there is a reasonable prospect of a successful prosecution; still less does it require her to have formed the view that there is no such prospect. All it does is require her to consult. I agree, for the reasons given by my noble and learned friends, that compliance with the duty to make inquiries of the police under s 8(2) is not a condition precedent to making a control order; nor is the receipt of a negative reply to those inquiries. But both are highly relevant factors to be taken into account by the Secretary of State when considering whether a control order is ‘necessary’. The court, in considering whether the Secretary of State’s decision was flawed, will be reluctant to confirm that decision if the requirements of s 8 have not been complied with or, indeed, if inquiries reveal that there is a reasonable prospect of a successful prosecution.

[28] Nor does s 8 impose an express duty upon the Secretary of State to keep the matter under review. But, as the Court of Appeal held in Secretary of State for the Home Dept v MB [2006] EWCA Civ 1140 at [44], [2007] QB 415 at [44], [2006] 3 WLR 839, it is implicit in the 2005 Act that the Secretary of State must keep the decision to impose a control order under review; and, as the Court of Appeal held in this case, that duty involves her, not only in consulting the police from time to time, but also in sharing such information as is available to her, but may not have reached the police, which is relevant to the prospects of a successful prosecution. These are all matters which the court will wish to consider in deciding whether the decision to make or maintain the control order was flawed.

[29] On the facts of this case, however, I agree that the order should not have been quashed on this ground; still less on the ground that it constituted a deprivation of liberty.

LORD CARSWELL.

[30] My Lords, the issues argued in this appeal were, first, whether the effect of the control order was to deprive the appellant E of his liberty within the meaning of art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) and, secondly, whether the Secretary of State was in breach of his statutory duty in relation to consideration of criminal prosecution.

[31] On the first issue, I held in Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642 that the control orders relating to the appellants in that appeal did not have the effect of depriving the appellants of their liberty. The reasons which I set out in my opinion given in that appeal, to which I would refer, apply also in the present case, taking proper account of E’s circumstances. I would accordingly hold that E has not been deprived of his liberty.

[32] On the second issue, the statutory duty of the Secretary of State under s 8(2) of the Prevention of Terrorism Act 2005 is, as my noble and learned friend Lord Bingham of Cornhill has observed at para [15] of his opinion, one to be taken seriously. Nevertheless, as Beatson J ([2007] EWHC 233 (Admin), [2007] HRLR 472) and the Court of Appeal (Pill, Wall and Maurice Kay LJJ) ([2007] EWCA Civ 459, [2007] 3 WLR 1) have correctly held, it does not constitute a condition precedent to the making of a non-derogating control order. For the reasons given by Lord Bingham at paras [15] and [16] of his opinion, I also consider that the absence of a realistic prospect of prosecution is not a condition precedent to the making of such an order.

[33] In my opinion the judge and the Court of Appeal were plainly right in their conclusion that it is the duty of the Secretary of State to keep the decision to impose

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a control order under review. I agree with the statement in the Court of Appeal’s judgment given by Pill LJ ([2007] 3 WLR 1 at [97]):

‘. . . Once it is accepted that there is a continuing duty to review pursuant to MB’s case, it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful . . .’

The Court of Appeal found (at [97]) in relation to the fulfilment of that duty:

‘. . . In our judgment, Beatson J was right to find that there had been a breach by the Secretary of State of his MB duty to keep the question of possible prosecution under review, not in the sense that the decision to prosecute was one for him (for clearly it was not), but in the sense that it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extends to a duty to take reasonable steps to ensure that the prosecuting authorities are keeping the prospects of prosecution under review. The duty does not, however, extend to the Secretary of State becoming the prosecuting authority. The decision whether to prosecute lies elsewhere.’

The Court of Appeal said (at [99]):

‘ In our view, the correct analysis in the present case is that the breach arose from the omission of the Secretary of State himself to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration. That failure rendered nugatory the negative responses of the police at meetings of the [Control Orders Review Group] when asked about prosecution.’

Again, I agree.

[34] The Court of Appeal went on to hold that not every breach of an obligation renders a subsequent decision flawed. It was of the opinion that the Belgian judgments could not have given rise to a prosecution at any time material to this case. Like Lord Bingham, I do not think that its reasoning can be faulted. It was therefore correct to hold that the control order should not have been quashed.

[35] I accordingly would hold that the appellant has not made out either of the grounds on which he has based his case before the House and dismiss the appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD.

[36] My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and like him would dismiss the appeal on both points. On the first point—as to whether the control order involved a deprivation of E’s liberty—I would do so for the reasons I have given in my opinion in Secretary of State for the Home Dept v JJ [2007] UKHL 45, [2008] 1 All ER 613, [2007] 3 WLR 642. On the second point I agree with all that Lord Bingham says and cannot usefully add to it.

Appeal dismissed.

Kate O’Hanlon Barrister.

Morina v Secretary of State for Work and Pensions;

Borrowdale v Secretary of State for Work and Pensions

[2008] 1 All ER 718

[2007] EWCA Civ 749

Categories:        SOCIAL SECURITY        

Court:        COURT OF APPEAL, CIVIL DIVISION        

Lord(s):        SIR ANTHONY CLARKE MR, ARDEN AND MAURICE KAY LJJ        

Hearing Date(s):        8 MAY, 23 JULY 2007        

Social security – Social security commissioners – Appeal to social security commissioner – Appeal from any decision of an appeal tribunal – Appeal tribunal dismissing application for extension of time beyond specified period – Appeal tribunal striking out appeal against ‘out of jurisdiction’ appeal – Social security commissioner granting permission to appeal but dismissing appeals – Secretary of State appealing – Whether commissioner having jurisdiction to entertain appeal from appeal tribunal – Whether appropriate court having jurisdiction to entertain appeal from Secretary of State as successful party – Social Security Act 1998, ss 12, 14(1), 15(1) – Social Security and Child Support (Decisions and Appeal) Regulations 1999, SI 1999/991, regs 31, 32, 46, 47.

M appealed in 2004 against a decision of the Secretary of State in 2001 that he had been overpaid income support. His case fell within s 12(4)a of the Social Security Act 1998 under which any person from whom the Secretary of State had determined that any amount was recoverable had the same right of appeal as a benefit claimant. Section 12(7) provided that regulations could make provision as to the manner in which, and the time within which, appeals were to be brought. Regulation 32(1)b of the Social Security and Child Support (Decisions and Appeal) Regulations 1999, SI 1999/991 provided that the time within which an appeal had to be brought could be extended where specified conditions were satisfied ‘but no appeal shall in any event be brought more than one year after the expiration of the last day’ of the period prescribed by reg 31c, which was one month. Regulation 32(2) provided: ‘An application for an extension of time under this regulation . . . shall be determined by a legally qualified panel member’ of the appeal tribunal. A legally qualified panel member refused the application. Section 14(1)d of the 1998 Act provided that an appeal lay to a social security commissioner ‘from any decision of an appeal tribunal under section 12 . . . on the ground that the decision of the tribunal was erroneous in point of law.' M applied to a commissioner for permission to appeal. The commissioner granted permission to appeal without prejudice to the right of the Secretary of State to argue that the commissioner lacked jurisdiction. In due course, the Secretary of State argued against jurisdiction but the commissioner decided that he had jurisdiction. Nevertheless he dismissed M’s appeal. The Secretary of State

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sought permission to appeal on the question of jurisdiction. He was refused permission by the commissioner on the ground that he had been a successful appellant. His application to the Court of Appeal was adjourned for an oral hearing on notice, with appeal to follow if permission were to be granted. B was a recipient of income support who was notified by the Secretary of State that in future his benefit would be paid by cheque. Under regs 46e and 47f of the 1999 regulations an appeal could be struck out ‘where it was an out of jurisdiction appeal’. By s 12(1) of the 1998 Act, Sch 2 to the 1998 Act rendered certain decisions unappealable and decisions as to the manner and time of the payment of benefits were included in the list of unappealable decisions and were within the meaning of the 1999 regulations ‘out of jurisdiction’ appeals. B appealed against the decision to pay him by cheque and a legally qualified panel member struck out the appeal pursuant to reg 46 of the 1999 Regulations. Thereafter the matter proceeded on the same lines as M’s case. The central point of law before the Court of Appeal was whether a social security commissioner had jurisdiction to hear and determine an appeal from a legally qualified panel member of the appeal tribunal who had refused to extend time or who had struck out a proposed appeal for want of jurisdiction. The Secretary of State contended that the remedy potentially available to persons in the position of M and B was an application to the administrative court for permission to apply for judicial review of the legally qualified panel member. The question also arose, if the commissioner did have jurisdiction, as to whether the Court of Appeal could or should hear the appeal of the Secretary of State in view of the fact that he had been the successful party before the commissioner in the cases of M and B. Section 15(1)g of the 1998 Act provided that an appeal on a question of law lay to the appropriate court from any decision of a commissioner.

Held – (1) The Court of Appeal was not precluded from hearing the Secretary of State’s appeals. The commissioner had decided, first, that he had jurisdiction to hear each appeal and, secondly, that each appeal should be dismissed on the merits; the Secretary of State was seeking to establish that the appeals should have been rejected for want of jurisdiction rather than dismissed on the merits. The subject-matter of the proposed appeals was a ruling by the commissioner on a fundamental legal issue. Accordingly, permission to appeal would be granted (see [10], [42], [49], below); Lake v Lake [1955] 2 All ER 538 distinguished.

(2) Decisions of a legally qualified panel member of an appeal tribunal such as those in the instant cases were unappealable; M and B did not have a right to seek leave to appeal to the commissioner and the commissioner did not have jurisdiction to entertain such appeals. Section 14 of the 1998 Act and regs 31, 32, 46 and 47 of the 1999 Regulations together constituted the statutory framework for appeals which were outside the maximum time period and ‘out of jurisdiction’ appeals. That statutory framework had to be considered as a whole, looking not only at the language used but at the substance of the meaning of the provision. The word ‘decision’ in s 14 of the 1998 Act looked all-embracing but it had to be given a purposive interpretation. M’s case fell within reg 32 of the 1999 Regulations which provided that appeals could not be more than one year after the expiration of the last date for appealing under reg 31. B’s case fell within

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reg 46 because it was an out of jurisdiction appeal. To interpret ‘decision’ in s 14 as including a decision that either of those appeals could not be brought would be to subvert the provision that an appeal did not lie. It would produce the opposite result from that which was clearly intended by the 1999 regulations. Accordingly, the appeal would be allowed (see [37], [41]–[50], below); Lane v Esdaile [1891] AC 210 applied.

Notes

For social security decisions and appeals, see Supp to 44(2) Halsbury’s Laws (4th edn reissue) para 356A

For the Social Security Act 1998, ss 12, 14, 15, see 40(2) Halsbury’s Statutes (4th edn) (2006 reissue) 229, 234, 239.

For the Social Security and Child Support (Decisions and Appeal) Regulations 1999, SI 1999/991, regs 31, 32, 46, 47, see 18 Halsbury’s Statutory Instruments (2005 issue) 294, 295, 304.

Cases referred to in judgments

Bland v Chief Supplementary Benefit Officer [1983] 1 All ER 537, [1983] 1 WLR 262, CA.

Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33, [2003] All ER (D) 51 (Jan).

Insurance Officer v McCaffery [1985] 1 All ER 5, [1984] 1 WLR 1353, HL.

Lake v Lake [1955] 2 All ER 538, [1955] P 336, [1955] 3 WLR 145, CA.

Lane v Esdaile [1891] AC 210, HL.

Rickards v Rickards [1989] 3 All ER 193, [1990] Fam 194, [1989] 3 WLR 748, CA.

White v Chief Adjudication Officer [1986] 2 All ER 905, CA.

Application and appeal

The application of the Secretary of State for Work and Pensions for permission to appeal from decisions of a Social Security Commissioner (Mr Rowland), by which he had decided (i) that he had jurisdiction to hear the appeal of Mr Morina against the refusal of a legally qualified panel member of the appeal tribunal of Mr Morina’s application appeal out of time against a decision that he had been overpaid income support, but had dismissed Mr Morina’s appeal; and (ii) that he had jurisdiction to hear the appeal of Mr Borrowdale against the decision of a legally qualified panel member of the appeal tribunal striking out for want of jurisdiction Mr Borrowdale’s proposed appeal against a decision of the Secretary of State that income support would be paid to him by cheque, but had dismissed Mr Borrowdale’s appeal, was considered on the papers by Sir Henry Brooke and adjourned for an oral hearing on notice with appeal to follow if permission were granted. Mr Morina and Mr Borrowdale did not appear. The Child Poverty Action Group intervened by way of written submissions. The facts are set out in the judgment of Maurice Kay LJ.

Nathalie Lieven QC (instructed by the Solicitor to the Department of Work and Pensions) for the Secretary of State.

Steven Kovats (instructed by the Treasury Solicitor) as advocate to the court.

Judgment was reserved.

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23 July 2007. The following judgments were delivered.

MAURICE KAY LJ (giving the first judgment at the invitation of Sir Anthony Clarke MR).

[1] In the field of social security, primary and secondary legislation are notoriously labyrinthine. Sometimes the substantive entitlement to a statutory benefit is clothed in complexity and can only be determined after an interpretive journey that few are equipped to travel. These two appeals do not involve complex substantive law. However, they raise procedural and jurisdictional issues of real difficulty.

[2] Mr Morina was an asylum seeker. On 28 June 2001 the Secretary of State decided that Mr Morina had been overpaid £417·40 in respect of income support for the period 4–25 December 2000 because he had failed to disclose that he had been refused asylum. On 11 June 2004 the Home Secretary granted Mr Morina indefinite leave to remain, as a result of which he became entitled to job seeker’s allowance. However, on 16 August 2004 the Secretary of State informed Mr Morina that he intended to recover the £417·40 by way of set-off against job seeker’s allowance. On 24 August 2004 Mr Morina wrote to the Secretary of State saying that he did not know of the refusal of asylum until he received a letter dated 21 December 2000. This was treated as an application to appeal out of time against the decision of 28 June 2001. On 2 December 2004 a legally qualified panel member (LQPM) of the appeal tribunal refused the application. On 6 July 2005 Mr Morina applied to a social security commissioner for permission to appeal. On 2 September 2005 Mr Commissioner Rowland granted permission to appeal without prejudice to the right of the Secretary of State to argue that the commissioner lacked jurisdiction. In due course, the Secretary of State argued against jurisdiction but on 12 June 2006 the commissioner decided that he had jurisdiction. Nevertheless he dismissed Mr Morina’s appeal. Mr Morina has accepted that decision and has played no part in proceedings in this court. The Secretary of State, on the other hand, whilst obviously satisfied with the decision of the commissioner on the merits, has sought permission to appeal to this court on the question of jurisdiction. He was refused permission by the commissioner on the ground that he had been a successful appellant. His application to this court was considered on the papers by Sir Henry Brooke who adjourned it for an oral hearing on notice, with appeal to follow if permission were to be granted.

[3] Mr Borrowdale was a recipient of income support. On 11 January 2005, the Secretary of State notified him that in future his benefit would be paid by cheque. On 19 January Mr Borrowdale gave notice of appeal. He did not challenge the correctness of the amount of the benefit but contended that the Secretary of State had no power to pay it by cheque. The matter was first considered by a clerk to the appeal tribunal but he referred it to an LQPM. On 25 January the LQPM struck the appeal out on the basis that there was no jurisdiction to hear it. Thereafter, events proceeded along the same lines as in Mr Morina’s case. Mr Commissioner Rowland granted permission to appeal and held that he had jurisdiction but dismissed the appeal substantively. The case has now reached this court at the behest of the Secretary of State following identical decisions on permission by the commissioner and Sir Henry Brooke.

[4] Thus the central point of law is whether a social security commissioner has jurisdiction to hear and determine an appeal from an LQPM who has refused to extend time or who has struck out a proposed appeal for want of jurisdiction.

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The Secretary of State contends that it has always been understood that persons in the position of Mr Morina and Mr Borrowdale have no right to appeal to a commissioner and that their remedy, if any, is an application to the Administrative Court for permission to apply for judicial review of the decision of the LQPM. If the commissioner was right to hold that he had jurisdiction, there also arises the question as to whether this court either can or should hear an appeal by the Secretary of State in view of the fact that he was the successful party before the commissioner in both cases. These are matters of some importance. In view of their complexity and the fact that Mr Morina and Mr Borrowdale have manifested no wish to be involved in the proceedings in this court, we have had the assistance of Mr Steven Kovats as advocate to the court. He has provided us with helpful written and oral submissions. His contention is that Mr Commissioner Rowland was right about jurisdiction in both cases and that this court should not feel inhibited from saying so. Also, the Child Poverty Action Group has been permitted to intervene by way of written submissions which support the approach of the commissioner.

[5] In an everyday dispute about substantive entitlement to a social security benefit, a claimant who is not satisfied with a decision of the Secretary of State has a right of appeal to the appeal tribunal. Since the Social Security Act 1998, the unified appeal tribunal has replaced a number of previous tribunals including social security tribunals. There is then a further right of appeal to a commissioner, but only on a point of law and with the leave of the appeals tribunal or the commissioner. Subsequent appeals to the Court of Appeal must also be on a point of law and with the permission of the commissioner or the Court of Appeal. In a typical case, questions of procedure and jurisdiction are tolerably clear. The difficulties arise around the margins where a plethora of statutory provisions may or may not apply, as this case vividly illustrates. Before dealing with the intricacies of the social security legislation, it is logical to resolve the threshold issue of whether this court can or should hear the appeals of the Secretary of State in view of the fact that he was the successful appellant before the commissioner.

THE APPEALS TO THIS COURT: JURISDICTION AND DISCRETION

[6] Although we have received no submissions discouraging us from hearing these appeals, it is common ground that our entitlement to do so is not beyond dispute and requires resolution. This is because of the traditional reluctance to permit an appeal at the behest of a litigant who succeeded below and who seeks to take issue with the reasoning of the decision rather than with its outcome.

[7] An appeal to the Court of Appeal from a commissioner is provided for by s 15 of the 1998 Act. It is limited to ‘a question of law’ and relates to ‘any decision of a Commissioner’ (my emphasis). This language is at variance with that used in connection with appeals from the High Court to the Court of Appeal which lie against ‘any judgment or order of the High Court’: s 16(1) of the Supreme Court Act 1981. The approach of the Court of Appeal to appeals from the High Court is illustrated by Lake v Lake [1955] 2 All ER 538, [1955] P 336 which arose in the context of s 27 of the Supreme Court of Judicature (Consolidation) Act 1925, where the language was also that of ‘judgment or order’. Mrs Lake’s answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband’s petition was dismissed, the commissioner finding that there had been adultery but that it had been condoned. She sought to appeal against the finding of adultery but the Court of Appeal declined to hear such an

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appeal. It held that ‘judgment or order’ meant ‘the formal judgment or order which is drawn up and disposes of the proceedings’ as opposed to ‘some finding or statement . . . which you may find in the reasons given by the judge for the conclusion at which he eventually arrives, disposing of the proceeding’ (per Sir Raymond Evershed MR [1955] 2 All ER 538 at 541, [1955] P 336 at 343–344). Hodson LJ agreed, adding:

‘This is an attempt by a successful wife to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal.’ (See [1955] 2 All ER 538 at 542, [1955] P 336 at 345.)

[8] The procedure and documentation in the context of an appeal to a social security commissioner are not the same as in the High Court. The appeals of Mr Morina and Mr Borrowdale were disposed of in a single document which also refused a third claimant leave to appeal and granted leave to appeal to a fourth. The single document contains para 1, headed ‘Decision of the Social Security Commissioner’, which, in the cases of Mr Morina and Mr Borrowdale, simply stated with respect to each: ‘I dismiss the claimant’s appeal.' Paragraphs 2–54, headed ‘Reasons’, then described the four cases and explained the conclusions reached by the commissioner.

[9] An analysis producing the result that we do not have jurisdiction to hear the Secretary of State’s appeals would take this form: (1) s 15 of the 1998 Act provides for an appeal against ‘any decision of a Commissioner’; (2) the ‘decision’ in each of these cases is to be found in para 1, dismissing the claimant’s appeal; (3) the Secretary of State is not seeking to challenge that decision; (4) by analogy with Lake’s case, he has no right to challenge the reasoning on an issue upon which he was unsuccessful—jurisdiction—when the ultimate decision was wholly favourable to him.

[10] In the present context, I do not consider that analysis to be correct. It is significant that the wording of s 15 of the 1998 Act does not replicate that of s 16 of the 1981 Act. It concerns ‘any decision’ rather than ‘any judgment or order’. To that extent, Lake’s case is not applicable as a matter of construction. Nevertheless, the policy aspect of Lake’s case as articulated by Hodson LJ has to be borne in mind. Does it apply so as to shut out an appeal by the successful party before the commissioner? In my judgment, it does not. I find force in Mr Kovats’s submission that the ‘decision’ referred to by the commissioner in para 1 was in each case and in reality two decisions—first, that he had jurisdiction to hear the appeal and, secondly, that the appeal should be dismissed on the merits. Whilst it is difficult to imagine circumstances in which the Secretary of State, having succeeded on the merits, should be permitted to appeal in relation to some aspect of the reasoning of the commissioner on the merits, I do not think that that necessarily precludes an appeal by him on the jurisdiction point which he lost. Moreover, as Miss Lieven QC submits, the Secretary of State is seeking to change ‘the decision’ described in para 1. He is seeking to establish that the appeals of the claimants should have been rejected for want of jurisdiction rather than dismissed on the merits. It is mainly for these reasons that I do not consider that we are precluded by law from hearing these appeals. Having said that, however, I am not to be taken to be enabling a whole range of ‘winners’ appeals’. It is significant that, in the present case, the subject matter of the proposed appeals to this court is a ruling by the commissioner on a fundamental legal issue of jurisdiction and not a finding such as the finding of adultery in Lake’s case. The latter was of interest only to the parties and, as