Neutral Citation Number: [2011] EWCA Civ 787
Case No: T1/2008/1296
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION, ADMIN COURT
MR JUSTICE MITTING
REF: PTA82006
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/07/2011
Before :

LORD JUSTICE MAURICE KAY, Vice President of the Court of Appeal, Civil Division
LORD JUSTICE CARNWATH
and
LADY JUSTICE HALLETT
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Between :

	AH	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	
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Ms Stephanie Harrison (instructed by Messrs Tyndallwoods) for the Appellant
Mr Tim Eicke QC  and Ms Kate Grange (instructed by Treasury Solicitors) for the Respondent
Ms Helen Mountfield QC and Mr Justin Cole, Special Advocates (instructed by the Special Advocates Support Office)

Hearing date : 16 May 2011
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Judgment

Lord Justice Maurice Kay  : 
1.	This appeal, which is concerned with the lawfulness or otherwise of a control order (the Order), has a complex procedural history.  The appellant was first served with the Order as long ago as 29 August 2006.  It was renewed on 27 July 2007.  
2.	On 17 April 2008 the obligations imposed by it were relaxed.  Later in April 2008, Mitting J, sitting in the Administrative Court, heard the appellant’s appeals against the Secretary of State’s decisions to make and to renew the Order.  On 9 May 2008, he handed down a judgment dismissing the appeals.  On 29 May 2008 the appellant filed a notice of appeal to this Court.  The application for permission to appeal was initially stood out to await the result of a pending case in the House of Lords but on 24 November 2009 I granted permission to appeal.  The appeal was then stood out to await the result of a further case in the Supreme Court, namely AP v Secretary of State for the Home Department [2010] UKSC 24.  These delays would have been intolerable if the appellant had continued to be subject to the Order but it was revoked by the Secretary of State on 19 June 2009 and a pending prosecution of the appellant for breach of its terms was discontinued on 24 May 2010.  Although the appellant has not been the subject of a control order for the past two years, it is common ground that the present appeal is not academic.  If, as the appellant contends, the Order was unlawful, he has a continuing interest in establishing that, not least because of a potential claim for damages.
3.	In addition to that arid procedural history, it is appropriate to record at the outset other aspects of the appellant’s time in this country.  He is an Iraqi national who arrived here on 21 July 2000 and claimed asylum.  On 30 October 2000 his asylum claim was refused but he was granted exceptional leave to remain for four years.  In June 2004 he returned to Iraq but re-entered the United Kingdom in September of that year.  On 26 January 2005 he was detained pending deportation on national security grounds.  He appealed but before the Special Immigration Appeals Commission heard that appeal, the Secretary of State withdrew the deportation decision on 23 November 2005.  As he was released from immigration detention, he was arrested and later charged with terrorist offences pursuant to the Terrorism Act 2000.  He stood trial at Woolwich Crown Court but on 29 August 2006 he was acquitted.  That is the date, it will be recorded, when he was served with the Order.
4.	In the Administrative Court, Mitting J rejected grounds of appeal to the effect that the appellant had not been accorded procedural fairness; that the decision of the Secretary of State that the appellant had been involved in terrorism-related activity was flawed; and that the obligations imposed by the Order constituted a deprivation of the appellant’s liberty within the meaning of Article 5 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).
5.	In this Court, the primary issue is that of procedural fairness and the question of compliance with the procedural requirements of Article 6 of the ECHR.  The secondary issue relates to the lawfulness of the substantive obligations imposed by the Order by reference to the requirements of Article 5.
1. Procedural fairness
6.	At the time of the hearing in the Administrative Court, the leading domestic authority was Secretary of State for the Home Department v MB [2008] 1 AC 440, the ratio of which was distilled by Mitting J in the following formulation (at paragraph 4, referring to his own earlier judgment in Secretary of State for the Home Department v AN [2008) EWHC 372 (Admin)):
“… the conclusion which I draw from the four speeches of the  majority in MB is that unless, at a minimum, the Special Advocates are able to challenge the Secretary of State’s grounds for suspicion on the basis of instructions from the controlled person which directly address their essential features, the controlled person will not receive the fair hearing to which he is entitled.”
This was the legal principle which he proceeded to apply.
7.	Since the present case was before the Administrative Court, the question of procedural fairness has been considered by the Grand Chamber of the European Court of Human Rights in A v United Kingdom (2009) 49 EHRR 29, which was concerned with the detention of foreign nationals pursuant to the Anti-Terrorism, Crime and Security Act 2001, and by the Supreme Court in Secretary of State for the Home Department v AF (No.3) [2010] 2 AC, which was concerned with control orders and which revisited MB in the light of the Strasbourg judgment in A.  I do not propose to set out the relevant extracts from A (paragraphs 218-224) because, for our purposes, they were authoritatively interpreted by Lord Phillips in AF (No.3), where he said (at paragraph 59):
“… I am satisfied that the essence of the Grand Chamber’s decision lies in para 220 and, in particular, in the last sentence of that paragraph.  This establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations.  Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations.  Where, however, the open material consists of purely general assertions and the case against the controlee is based solely or to a decisive degree on closed materials, the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials would be.”
8.	There is no doubt that that paragraph is the ratio of AF (No.3).  Agreement with the judgment of Lord Phillips was expressed by Lord Hope (paragraph 75), Lord Scott (paragraph 89), Lord Rodger (paragraph 98), Lord Walker (paragraph 99), Baroness Hale (paragraph 100) and Lord Brown (paragraph 110).  Lord Hope, Lord Scott, Baroness Hale and Lord Brown went on to add observations of their own (as did Lord Carswell, at paragraphs 107-109, who did not expressly adopt the reasoning of Lord Phillips but stated his agreement with his colleagues in general terms).  Some of those additional observations have given rise to submissions in subsequent cases, including this one, seeking to drive a wedge between the reasoned judgments, relying in particular on observations by Lord Hope as to application of the principle.  Such submissions are ill-founded.  The principle is clear.
9.	What now has to be considered is whether the disclosure in this case satisfied the approach required by A and AF (No.3).  This requires an examination of the allegations against the appellant and what was in fact disclosed.  It is, of course, a feature of this case that, as a result of the unsuccessful prosecution in the Crown Court, the appellant already knew quite a lot about the material which led to the suspicions harboured by the Secretary of State. 
10.	In the Administrative Court the Secretary of State relied on four principal grounds of suspicion:
“(1)	AH collected and organised the remittance of funds for the insurgency in Iraq.
(2)	AH used anti-surveillance techniques such as the use of telephone kiosks to make sensitive calls and erratic driving to escape surveillance.
(3)	AH is an associate of BC, an Islamist extremist based in the United Kingdom.
(4)	AH facilitated the travel of Mukhtar Ibrahim Said, Rizwan Majid and Shakeel Ismail to Heathrow, for onward travel to Pakistan, on 11 December 2004 when, to his knowledge or belief, their purpose was terrorism-related.”
11.	In his judgment, Mitting J discounted the first of the four grounds because he was doubtful that the appellant had received sufficient disclosure in relation to it to enable him to give instructions so as to mount an effective challenge.  The judge appears to  have concluded that the matter was borderline.  Accordingly he did not take it into account in reaching his overall conclusion which was based on the other three grounds.
12.	The remaining grounds were the subject of material disclosure.  The flavour can be appreciated from what Mitting J said in his judgment (at paragraph 7):
“On the remaining three grounds, I am satisfied that their essential features have been disclosed to AH and that he has had, and has taken, the opportunity to attempt to rebut them in detail.  He has done so in his witness statement … and in evidence given at the hearing.  In one respect (the use of telephone kiosks as a security measure on a particular occasions), the evidence which he has given has permitted the Special Advocates to demonstrate that the Security Services’ conclusion was erroneous, so that the Secretary of State no longer relies on that as a ground for suspicion.  He has had disclosed to him the surveillance logs for 22/23 October 2004 and 11/12 December 2004.  That has prompted him to give a detailed account of his activities on each night …  He repeated this detailed account in his evidence at the hearing.  The fact that he does not know the contents of the closed material has not in any way inhibited him from doing so.  He has been told the essential features of the Secretary of State’s case about his relationship with BC and the nature and purpose of his activities.  He has been able to give a detailed account about it … and has repeated it in evidence.  Again, the fact that he does not know the contents of the closed material on this issue has not in any way inhibited him from advancing his case about it.  The essential features of the trip to Heathrow and its aftermath have been disclosed to him, in the form of surveillance logs.  The purpose of the three men travelling to Pakistan and the grounds for suspecting that it was for terrorism-related activity have been disclosed to him in the Metropolitan Police summaries of their interviews of the three men and their record of what they had with them.  AH has been able to give a detailed account of the arrangement of the trip to Heathrow, the trip itself and its aftermath … , repeated and as to aftermath, supplemented, in his evidence at the hearing (which itself repeated the evidence which he had given at his criminal trials).  The fact that he did not know the contents of the closed material has not in any way inhibited him from advancing his account.  Further, in relation to all three issues, the Special Advocates have been able to probe and challenge the Security Services’ assessments and the open and closed material which supports them on the basis of AH’s detailed account.”
13.	Of the three men taken to Heathrow, Said was one of the unsuccessful suicide bombers in London on 21 July 2005.  He was convicted in relation to that and is serving a sentence of life imprisonment with a minimum term of 40 years.  
14.	I have to say that, having sat on a number of control order cases, I cannot recall one in which the controlee was provided with more information about the Secretary of State’s grounds of suspicion than this appellant was provided with in relation to the three grounds ultimately relied upon by Mitting J.  I am in no doubt that the disclosure satisfied the requirements of A and AF (No.3).  On the three issues of anti-surveillance techniques, association with BC and the Heathrow trip, the appellant was conspicuously able to give effective instructions about the allegations against him and to give his account about them.  His account was rejected, partly on the basis of closed material but that does not establish insufficient disclosure or unfairness.  As Mitting J said (at paragraph 8):
“A controlled person, faced with closed material, who gives detailed evidence in support of his case, inevitably runs the risk of contradicting closed material; and, in doing so, may expose himself to a finding that he has suppressed the truth or lied.  That risk is inherent in the proceedings.”
15.	To that extent, a controlee is in a less favourable position than a defendant in a criminal trial, but that, too, is inherent in this procedure.  It is implicitly tolerated by A (for example, paragraph 220) and by AF (No.3).  In the context of preventative measures in the interest of national security, fairness does not require the total protection of a person against his own mendacity.
16.	There is a footnote point on the issue of fairness.  In his rejection of the appellant’s account, specifically in relation to the Heathrow trip, Mitting J said (at paragraph 17):
“I have anxiously asked myself whether there may be any other explanation for suppression and lying.  I am satisfied that there is not.”
17.	The submission on behalf of the appellant is that Mitting J in that passage was effectively asking himself whether further disclosure would have made no difference in deciding whether a fair trial had been or could have been achieved.  In my judgment, he was doing no such thing.  In an early part of his judgment (paragraph 4), he expressed the view that the so-called “makes no difference” exception does not exist.  This was later confirmed by the Supreme Court in AF (No.3).  What he was doing in paragraph 17 was giving the appellant the benefit of what is known in criminal proceedings as a Lucas direction.  That he should employ the same self-direction was entirely appropriate and fair.
2. The terms of the control order
18.	Mitting J described the original and subsequently varied terms of the control order in the following passage (at paragraph 19):
“Until 17 April 2008, the control order imposed the following obligations on AH: the wearing of a tag; a 14 hour curfew between 6pm and 8am in a flat in Norwich, to which he was taken on 29 August 2006; daily reporting to the monitoring company; a prohibition on association or communication with any person notified to him by the Home Office as being subject to a control order (no such person was notified and this provision was deleted on 27 July 2007); a requirement to permit entry to police officers etc to search his residence and remove any item; a prohibition on communications equipment other than a landline telephone; the requirement to attend only one mosque of his choosing (subsequently relaxed); a geographical boundary comprising the centre and inner suburbs of Norwich; a requirement to notify the Home Office of any intended departure from the United Kingdom and a prohibition from entering any port, without prior Home Office agreement; a prohibition on maintaining more than one bank account or on transferring money, documents or goods overseas without Home Office consent; the surrender of his passport; and a requirement to provide details of any employment to the Home Office within seven days of commencement.  On 17 April 2008, the curfew was reduced to 10 hours and the geographical restriction confined to the area bounded by the M25.  In all other respects the obligations remain the same.”
The question is whether the imposed terms constituted a deprivation of liberty within the meaning of Article 5 of the ECHR.
19.	At the time of hearing in the Administrative Court, the leading authority on this issue was Secretary of State for the Home Department v JJ & ors [2008] 1 AC 385.  In his judgment in the present case, Mitting J (at paragraph 21) carefully distilled the following principles as being established by JJ:
“(i)	There is no ‘bright line’ separating deprivation of liberty from restriction on liberty …
(ii)	The test is objective: the task of the court is to assess the impact of the measures ‘on a person in the situation of the person subject to them’
(iii)	Many relevant factors must be taken into account, but the starting point or ‘core element’ is the length of the curfew …
(iv)	Social isolation is a significant factor, especially if it approaches solitary confinement during curfew periods …”
20.	In the light of the views as to length of curfew expressed in JJ, Mitting J concluded that a curfew of 14 hours was not, by itself, tantamount to a deprivation of liberty.  He then addressed ten individual features relied upon by the appellant in order to see whether their cumulative effect, when taken with the length of the curfew, was such as to amount to a deprivation of liberty.  He concluded that this was not a case of deprivation of liberty but that it “falls just on the restriction on liberty side of the line and so does not engage Article 5”. 
21.	The original grounds of appeal to this Court suggested in broad terms that that conclusion was legally erroneous.  The present submission is that, with the passage of time, the appeal on this point has gained sustenance from the decision of the Supreme Court in AP v Secretary of State for the Home Department [2010] 3 WLR 51.  
22.	The point that had divided the Court of Appeal in AP was whether social isolation including an interference with family life which did not amount to a breach of Article 8, could nevertheless be relevant and indeed might tip the balance in relation to an assessment of deprivation of liberty under Article 5.  The Supreme Court held that it could be both relevant and decisive.  Lord Brown said (at paragraph 12):
“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 …”
23.	I should refer to two other observations of Lord Brown (with whom Lord Phillips, Lord Saville, Lord Walker and Lord Clarke agreed and with whom Lord Rodger and Lord Dyson also agreed, whilst adding observations of their own).  First, on the question of length of curfew, Lord Brown said (at paragraph 4):
“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 life the controlee might otherwise have been living.”
24.	Secondly, he emphasised (at paragraph 19) the importance of respecting the decisions of the judges in the Administrative Court dealing with these difficult cases, adding:
“They have developed ‘special expertise and experience, not generally shared by members of the appellate courts’ and ‘are also much better place to develop consistent practice for dealing with orders of this kind and to provide continuing supervision of their making variation and implementation’.”
The internal quotations referred back to the judgment of Carnwath LJ in the Court of Appeal: [2009] EWCA Civ 731.  
25.	Applying all this to the present case, I am unable to detect any legal error in the judgment of Mitting J.  He was concerned about the “high degree of social isolation”.  He thought that it was “a significant feature which points to deprivation of liberty rather than restriction on liberty” but, having considered all the circumstances, he concluded that “this case falls just on the restriction of liberty side of the line”.  He had regard to the fact that the appellant’s wife did not live with him, observing (correctly) that that was a feature of his social isolation.  He considered the implications of tagging and regular entry to and search of the flat, according the latter “some significance”.  He further considered matters arising from the apprehension of the appellant for “relatively minor breaches” of the control order and the fact that the alleged breaches had resulted in prosecution and detention on remand for five weeks.  He adverted to the psychiatric report by Dr Wilhelm Skogstad dated 15 April 2008.  It included a current diagnosis of chronic post-traumatic stress disorder or an adjustment order with mixed anxiety and depressed mood.  It concluded that the appellant’s current psychiatric condition was based “purely in the cumulative traumas and chronic stresses of the last three years following his arrest”.  That period covered both the criminal proceedings and the subsequent control order.  The date of the report is significant.  Two days later the curfew was reduced to 10 hours and the geographical restriction was moved to the area bounded by the M25.  In all the circumstances, I am satisfied that the judge’s assessment was careful, rational and in all respects lawful.
Conclusion
26.	It follows from what I have said that I would dismiss this appeal.  I ought to refer to the fact that we received written submissions and open and closed oral submissions from the Special Advocates.  To the extent that they were concerned with matters of law, they are answered by the previous contents of this judgment.  To the extent that they were concerned with factual matters, I do not consider it necessary for there to be a closed judgment in this case.  Suffice it to say that Ms Helen Mountfield QC (who had not appeared in the Administrative Court) sought to put the matter rather differently than her predecessors had.  It is sufficient for me to state that, in my judgment, neither her open nor her closed submissions provide a proper basis upon which to interfere with the decision of Mitting J.
Lord Justice Carnwath:
27.	I agree.
Lady Justice Hallett:
28.	I also agree.