| Source: | All England Reporter |
| Publisher Citation: | [2010] All ER (D) 108 (Jun) |
| Neutral Citation: | [2010] UKSC 24 |
| Court: | Supreme Court |
| Judge: | Lord Phillips P, Lord Saville, Lord Rodger, Lord Walker, Lord Brown, Lord Clarke and Sir John Dyson SCJJ |
| Representation | Edward Fitzgerald QC and Kate Markus (instructed by Wilson Solicitors LLP) for AP. |
| Robin Tam QC, Tim Eicke and Rory Dunlop (instructed by the Treasury Solicitor) for the Secretary of State. | |
| Judgment Dates: | 16 June 2010 |
Catchwords
Human rights - Right to liberty and security - Prevention of terrorism - Control order - Non-derogating control order - Secretary of State making non-derogating control order against person suspected of involvement in terrorism - Secretary of State modifying order to require controlled person to reside outside of London - Judge finding modified control order not breaching controlled person's right to family life but breaching right to liberty on basis of combined effect of 16-hour curfew and social isolation including separation from family - Court of Appeal ruling judge erred in treating effect of relocation on family visits as decisive factor - Whether conditions which were proportionate restrictions on art 8 rights could be decisive factor in relation to art 5 - Whether subjective and/or person-specific factor could be taken into account when considering whether control order amounted to deprivation of liberty - Whether permissible for appeal court to interfere with judge's findings of fact on basis findings on art 8 ground inconsistent with those on art 5 - Human Rights Act 1998, Sch 1, Pt I, art 5(1).
The Case
Human rights Right to liberty and security. Allowing AP's appeal against a decision that the conditions of a control order imposed against him did not amount to a breach of his rights under art5 of the European Convention on Human Rights, the Supreme Court held, inter alia, that: (i) conditions contained in control orders which were proportionate restrictions upon a controlee's rights under art8 of the Convention could 'tip the balance' in relation to deciding whether there had been a violation of art 5 of the Convention; and (ii) that a judge considering whether or not a control order amounted to a deprivation of liberty did not have to disregard the particular difficulties of the controlee's family in visiting him but rather any lack of contact which resulted from the family's unreasonable failure to overcome these difficulties.
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