Case Comment: R (AP) v SSHD  UKSC 24
25 Friday Jun 2010
As discussed in the Case Preview, this is the latest in a series of control order cases in which the Supreme Court has grappled with the question of when restrictions on a person’s daily life become severe enough to amount to a ‘deprivation of liberty’ within the meaning of Article 5 of the ECHR.
The Supreme Court unanimously held that the conditions in AP’s control order, including a 16-hour curfew and enforced move to a town where it was not possible for his family to visit him, amounted to a ‘deprivation of liberty’. This meant that the control order was unlawful. At the heart of the decision is the Court’s finding that the impact of a control order must be assessed in terms of its actual effect on the controlled person’s life. This includes effects which stem from his family’s economic and other circumstances. These cannot simply be ignored in favour of a hypothetical person with a family of greater resources.
AP’s control order involved a 16-hour curfew and a range of other severe restrictions on daily life. Additionally, it required him to live in a town approximately 150 miles from London, where he knows nobody, despite the fact that his family and friends are primarily located in north London. This requirement dramatically reduced his contact with his family, and created severe social isolation. Keith J held that this combination of factors amounted to a ‘deprivation of liberty’ within the meaning of Article 5 of the ECHR. The majority of the Court of Appeal disagreed.
On AP’s appeal to the Supreme Court, Lord Brown gave the leading judgment. He considered that it was clear, in light of the previous House of Lords control order decisions and the Strasbourg caselaw, that whether or not a person is deprived of his or her liberty depends on a wide range of factors. In every case, the court has to look at ‘the concrete situation of the particular individual’. He emphasised that nothing in JJ v Secretary of State for the Home Department  1 AC 385 – including his own observations – should be taken to mean that there was a simple 16-hour cut off point. Curfews of 16 hours or less are not protected against a finding of deprivation of liberty: it depends on the overall effect of the whole package of measures. However, the shorter the curfew period, the more severe the other measures would have to be before the package as a whole would amount to a deprivation of liberty: as Lord Brown emphasised that
‘I nevertheless remain of the view that for a control order with a 16-hour curfew (a fortiori one with a 14-hour curfew) to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive of the of the life the controlee might otherwise have been living.’ [para. 4]
Applying these principles to the facts of any individual case will continue to be a difficult task. As Lord Brown noted, ‘Quite how to balance on the one hand the precise length of curfew and on the other hand the degree of social isolation involved in any particular case presents a difficulty: the two are incommensurable.’ Lord Brown’s remarks make it clear that the lower courts will have to continue to grapple with this difficult issue on a case by case basis. There can be no easy answer by simply looking at the length of the curfew: the whole range of facts have to be taken into account. There is certainly no rule that curfews of 16 hours and less are immune from challenge under Article 5.
After these initial observations, Lord Brown went on to address the three issues which the Court had to decide:
(a) ‘Whether conditions which are proportionate restrictions on article 8 rights can ‘tip the balance’ in relation to article 5, i.e. whether they can be taken into account in holding that a control order is a deprivation of liberty when, absent those restrictions, it would not have been held to be such.’
Lord Brown made short work of this question:
‘with the best will in the world the answer to it is surely an obvious ‘yes’. If an article 8 restriction is a relevant consideration in determining whether a control order breaches article 5, then by definition it is capable of being a decisive factor – capable of tipping the balance. The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision-maker – subject only to a challenge for irrationality…’ [para.12]
This confirms that even where restrictions on private and family life are held to be justified under Article 8 (because they are necessary to achieve a legitimate aim, and proportionate), the same restrictions can be taken into account in the Article 5 analysis, and may prove decisive in an appropriate case.
(b) Whether the judge can take into account subjective and/or person-specific factors, such as the particular difficulties of the subject’s family in visiting him in a particular location, when considering whether or not a control order amounts to a deprivation of liberty.’
Although this question was at the heart of the case as argued before the Supreme Court, Lord Brown noted that ‘[o]ddly, this was not a question addressed by the Court of Appeal although it had been touched on in the Secretary of State’s grounds of appeal before them.’ [para. 13] The Secretary of State’s argument was that, in assessing the weight to be given to the socially isolating effects of a condition in a control order, the judge should ignore everything that depends on the individual circumstances of the family. So in AP’s case, the argument was that the health, financial and domestic problems which prevented AP’s family from travelling from London to the Midlands should be ignored when analysing the effect of the order on him, and deciding whether it amounted to a deprivation of liberty. As Lord Brown summarised this unattractive position: ‘If a differently organised and wealthier family could readily have visited … it cannot avail the controlee that his own particular family could not.’ [para. 13]
Lord Brown held that, if a family was to act unreasonably so as ‘to thwart what would otherwise be an appropriate residential requirement by unreasonably failing to take the opportunities open to them to visit AP and so safe him from social isolation’, then in that case the social isolation would be the result of the family’s unreasonable decision, rather than the control order. Social isolation stemming from this unreasonable conduct would not be relevant to the Article 5 analysis. In AP’s case, though,
‘[i]t is not suggested … that the family behaved unreasonably in failing to overcome more effectively the practical difficulties they faced in visiting AP on a more regular basis, only that their particular difficulties should have been ignored.’ Lord Brown held that this argument ‘cannot be accepted’. [para. 15]
He took the view that there is no basis in the Strasbourg or domestic caselaw for ignoring the actual difficulties caused to the controlled person by the terms of their order. As he observed, the Secretary of State’s argument runs completely counter to Lord Bingham’s statement in JJ that ‘what has to be considered is the concrete situation of the particular individual.’
Sir John Dyson SCJ added some observations on this issue. He considered that that Secretary of State’s attempted distinction between ‘subjective’ (and thus irrelevant) factors and ‘objective’ (and relevant) factors was not helpful. He noted that:
‘AP’s mother chose to look after her daughter’s young children. Practically speaking, she was faced with the choice of not visiting AP or of taking the children on her visits. She chose not to visit AP at all. No doubt, that was a difficult choice for her to make. In a sense, it was a ‘subjective’ decision as are all choices. But that does not mean that the isolating effect of the choice made by AP’s mother is to be disregarded when an assessment is made of the effect on AP of the modification of the control order. The focus of the article 5 inquiry is on the actual effect of the measures on the controlee in the circumstances in which he finds himself.’ [para. 29]
He went on to consider the Secretary of State’s further argument that, if the Article 5 issue turned on the effect of personal choices and family arrangements, ‘the answer to the question would vary unpredictably and would turn on matters outside the control and knowledge of the Secretary of State.’ [para. 30] Again, the Secretary of State’s position found little favour with the Court:
‘[T]he Secretary of State must always seek to find out what the likely effect will be of the control order … that she is proposing to make. … If the Secretary of State fails to ascertain what the effect of an order will be, she runs the risk that there will be a breach of article 5.1. This is the price that she must pay if she wishes to impose a control order. In some cases, there may be practical difficulties in finding out in advance what the effect of an order … is likely to be. But that is not a good reason for saying that the Secretary of State is free to make an order without regard to its effect on the controlee.’ [para. 31]
(c) Whether it was permissible for the Court of Appeal to interfere with the first instance judgment on the ground that the judge had relied on findings of fact in respect of article 5 which were inconsistent with his findings of fact in respect of article 8.
Again, Lord Brown dealt with this point shortly, holding that there was, on proper analysis, no inconsistency of the sort complained of by the Secretary of State. He went on to note the special expertise of first instance judges in control order cases, and to emphasise ‘the wisdom of generally not interfering with their decisions.’
This is a welcome decision from the Supreme Court. It clarifies the effect of JJ, making clear that the State does not have a free hand to impose extreme social isolation on individuals so long as it keeps the curfew requirement to 16 hours or less. It is heartening to see the Court – in an unusually short judgment – rapidly dismissing the Secretary of State’s unattractive invitation to ignore the actual effects of the order on AP, so far as they stemmed from his family circumstances. In any control order case, those effects may ‘tip the balance’ and make the difference between a lawful and an unlawful order. It is also heartening to see the Court dismiss the Secretary of State’s complaint about the difficulty of assessing the actual impact which a control order will have on the individual. As Sir John Dyson SCJ put it, the Secretary of State is simply not ‘free to make an order without regard to its effect on the controlee.’ [para. 31] As the Court’s decision makes clear, if the Government continues to operate a system which pushes at the boundaries of legality, it has to accept the risk of further court decisions holding it in breach of Article 5.