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On appeal from: [2009] EWCA Civ 731

The latest in a series of control order cases in which the House of Lords and now 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 ECHR, art 5.

Proceedings were brought by AP following the modification of the terms of a control order, requiring him to move to an address in a Midlands town some 150 miles away from family and friends. Held, unanimously allowing AP’s appeal against the terms of the order. Deprivation of liberty within the meaning of art 5 might take a variety of forms other than classic detention in prison or strict arrest. The court’s task was to consider the concrete situation of the particular individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on him in the context of the life he might otherwise have been living. Conditions which are proportionate restrictions upon art 8 rights to respect for private and family life can “tip the balance” in relation to art 5. The weight given to any relevant consideration was a question of fact. the Secretary of State was wrong to contend that, in assessing the weight to be given to the restrictive effects of a condition such as that imposed on AP to reside in the Midlands, the judge should ignore everything that depends on the individual circumstances of the family.

For judgment, please download: [2010] UKSC 24
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII