Lord Brown confirmed that conditions which are proportionate restrictions upon Article 8 rights to respect for private and family life can ‘tip the balance’ in relation to Article 5 (which guarantees the right to liberty and security), ie 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. In respect of whether the control order amounted a breach of AP’s Article 5 rights to liberty and security, Lord Brown was of the view that 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 here to reside in the Midlands, the judge should ignore everything that depends on the individual circumstances of the family.By way of introduction, Lord Brown noted that the majority in the House of Lords in Secretary of State for the Home Department v JJ  1 AC 385 held that deprivation of liberty 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. More problems for the control order scheme
The control order in AP’s case had in fact already been revoked by the Secretary of State (para 8). As such, the outcome of the appeal was only of academic significance, and it remains at best uncertain whether the control order in AP’s case would have survived the enhanced disclosure required by Article 6 in the light of the House of Lords’ decision in AF (No. 3).
The control order scheme continues to be controversial and problematic for the Government, even though in reality it has only affected around 50 people in total.
As we blogged recently, the Parliamentary Joint Committee on Human Rights recently released its report on the Annual Renewal of Control Order Legislation 2010, in which it heavily criticised the control order scheme.
The scheme has also come under scrutiny from the courts, most notably by the House of Lords in the AF case. In AF, a nine-member House of Lords held that it was a breach of the right to a fair trial under Article 6 to hold someone under a control order without sufficient information about the allegations against him even where the case against the “controlee” was based on closed materials, the disclosure of which would compromise the country’s national security.
Read the decision: