Secretary of State for the Home Department (Respondent) v. XX and another (Appellants) [2007] UKHL 47
- 2007
- United Kingdom
Topics
Public securityLegal bases
European Convention on Human Rights United Kingdom: Prevention of Terrorism Act 2005Courts
House of Lords, United KingdomLaws
Right to LibertyFacts
XX 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. In December 2001 XX was certified by the Secretary of State under section 21 of the Anti-terrorism, Crime and Security Act 2001. He was detained in HMP Belmarsh until his release on bail on 10 March 2005 on conditions similar to those of the control order that was made two days later. [Conditions of Control order listed in para 6]. The trial judge concluded that the cumulative effect of the restrictions was to deprive XX of his liberty in breach of article 5 of the ECHR. The court also raised the issue of the fact that a control order is usually made where an individual cannot realistically be prosecuted for a terrorism–related offence. The Court of the Appeal found the trial judge to have erred in law in failing to focus on the extent to which XX was actually confined, citing the example of an overnight curfew of twelve hours which is a period accepted by the Strasbourg authorities. With regard to (b) the Appeal Court also held that the Secretary of State acted within powers conferred upon her by s8 of the Act. Therefore, the Court of Appeal reinstated the order. The Appellants appealed to the House of Lords for review of the Court of Appeal’s decision.
Legal grounds
Control Orders (Prevention of Terrorism Act 2005); Article 5 of the ECHR.
Findings
The House of Lords dismissed the appeal on both points. On the grounds that (a) the cumulative effect of the restrictions imposed in the control order did not cross the boundary into deprivation of liberty, the Lords agreed with the Court of Appeal’s decision that the “core element” of the confinement - the length of the curfew- is within the range which Strasbourg has accepted as merely restricting liberty. [see para 25 for comments on the other restrictions] (b), the Secretary of State did not fail to comply with the provisions of section 8 of the Act which allows criminal investigations after the making of a control order. It was therefore correct to hold that the control order should not have been quashed.