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Secretary of State for the Home Department v. MB (FC) (Appellant)
HOUSE OF LORDS
 UKHL 46
on appeal from: EWCA Civ 1140,
 EWHC 651 (Admin)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Secretary of State for the Home Department (Respondent) v.
MB (FC) (Appellant)
Secretary of State for the Home Department (Respondent) v.
AF (FC) (Appellant) (Civil Appeal from Her Majesty's High Court of Justice)
Secretary of State for the Home Department (Appellant) v.
AF (FC) (Respondent) (Civil Appeal from Her Majesty's High Court of Justice)
Lord Bingham of Cornhill
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
MB: Tim Owen QC
(Instructed by Arani & Co)
AF: Timothy Otty QC
(Instructed by Middleweeks)
Ian Burnett QC
Philip Sales QC
(Instructed by Treasury Solicitor)
Michael Fordham QC and Tom Hickman
(Instructed by Clifford Chance)
Michael Supperstone QC and Judith Farbey
(Instructed by Special Advocates' Support Office)
5, 9, 10, 11, 12 and 13 July 2007ON
WEDNESDAY 31 OCTOBER2007
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Secretary of State for the Home Department (Respondent) v. MB (FC) (Appellant)
Secretary of State for the Home Department (Respondent) v. AF (FC) (Appellant) (Civil Appeal from Her Majesty's High Court of Justice)
Secretary of State for the Home Department (Appellant) v. AF (FC) (Respondent) (Civil Appeal from Her Majesty's High Court of Justice)
 UKHL 46
LORD BINGHAM OF CORNHILL
1. 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 sections 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 ( EWHC 1000 (Admin),  HRLR 878, but he declared section 3 of the Act to be incompatible with MB's rights to a fair hearing under article 6(1) of the European Convention on Human Rights. 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 :  EWCA Civ 1140,  QB 415.
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 sections 2 and 3(1)(a) of the 2005 Act. Following a full hearing under section 3(10) of the Act, Ouseley J on 30 March 2007 quashed the order but dismissed an application by AF for a declaration of incompatibility:  EWHC 651 (Admin). The judge granted a certificate permitting both parties to appeal directly to the House pursuant to section 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) :
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 article 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 Department v E and S  UKHL 47).
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 Department v JJ and Others  UKHL 45.
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 UK, 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 and others 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 9 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 10 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.
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 (para 53 of his judgment), while noting certain elements of overstatement and exaggeration (paras 53, 54). The judge concluded that the effects of the control order as described by AF were the effects which the restrictions were intended to have (para 54).
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 and others ( EWHC 1623 (Admin),  EWCA Civ 1141,  QB 446) and Beatson J in E and S ( EWHC 233 (Admin),  HRLR 472), I have myself attempted to summarise the effect of the Convention and domestic jurisprudence in my opinion in JJ and others ( UKHL 45, paras 12 to 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 (para 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 (para 78). He regarded the case as finely balanced (ibid.), 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 (para 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 that the effect of the order was to deprive AF of his liberty, and that the order was accordingly a nullity (para 89).
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 and S, which had not then but has since been reversed by the Court of Appeal, rightly, as the House has now concluded. Had the judge had the benefit of the Court of Appeal's judgment in E and S, 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 article 5.
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 and others, paras 25 to 27.Issue (3)
13. As explained in JJ and others, the conditions for making and upholding a non-derogating control order under sections 2(1)(a) and 3(10) of the 2005 Act are that the Secretary of State
Before confirming a derogating control order under section 4(7) the court must first be
14. Article 6 of the European Convention ("Right to a fair trial") provides in the opening sentence of paragraph (1)
The article continues in paragraphs (2) and (3) to identify certain rights specific to those who have been charged with a criminal offence. These include the presumption of innocence (para (2)) and certain minimum rights, among them rights (para (3))
15. The Secretary of State accepts that control order proceedings fall within the civil limb of article 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 article 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 Joint Committee on Human Rights (Twelfth Report of Session 2005-2006, HL Paper 122, HC 915), para 49:
But, as the Council of Europe Commissioner for Human Rights pointed out in his Report of 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."
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 (Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 82; Campbell and Fell v United Kingdom (1984) 7 EHRR 165, paras 70-71) and even between civil and criminal proceedings (Albert and Le Compte v Belgium (1983) 5 EHRR 533, 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 (International Transport Roth GmbH v Secretary of State for the Home Department  EWCA Civ 158,  QB 728, paras 33, 148) 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  EWCA Civ 2015,  IRLR 297, para 14).
18. It was said in Customs and Excise Commissioners v City of London Magistrates' Court  1 WLR 2020, 2025 that in this country
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: S v Miller 2001 SC 977, paras 20, 23; R (R) v Durham Constabulary  UKHL 21,  1 WLR 1184, para 14. 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, above, 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 article 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, para 53; Lauko v Slovakia (1998) 33 EHRR 994, 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 Engel criteria, 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.
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 section 1(1) to (4) of the Terrorism Act 2000, incorporated in the 2005 Act by section 15(1), and the definition of "terrorism-related activity" in section 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 recognised in A v Secretary of State for the Home Department  UKHL 56,  2 AC 68, para 223. 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": Shaaban Bin Hussien v Chong Fook Kam  AC 942, 948) and asserting that A has done X. There is an obvious contrast between the reasonable suspicion required of the Secretary of State under sections 2(1)(a) and 3(10) of the Act and the satisfaction required of the court under section 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 article 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 ("Legislative Scrutiny: Fifth Progress Report", HL Paper 91, HC 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" (Justice Chaskalson, "The Widening Gyre: Counter-terrorism, Human Rights and the Rule of Law," Seventh Sir David Williams Lecture, p 15). 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  1 WLR 340; Gough v Chief Constable of the Derbyshire Constabulary  EWCA Civ 351,  QB 1213; and, most notably, R (McCann) v Crown Court at Manchester  UKHL 39,  1 AC 787; of the latter, Han v Customs and Excise Commissioners  EWCA Civ 1040,  1 WLR 2253; International Transport Roth, above. 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 The Netherlands (App no 37331/97, 6 June 2000, unreported; treated as criminal were the measures considered in Öztürk v Germany, above; Demicoli v Malta (1991) 14 EHRR 47; Benham v United Kingdom (1996) 22 EHRR 293; Lauko v Slovakia, above; Garyfallou AEBE v Greece (1999) 28 EHRR 344. Even this distinction, however, is not watertight, since prevention is one of the recognised aims and consequences of punishment (see R (West) v Parole Board  UKHL 1,  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: A v Secretary of State for the Home Department  EWCA Civ 1502,  QB 335, para 57. 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 others and E, the application of the civil limb of article 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, Gough and McCann, above, and it seems to me to reflect the spirit of the Convention.