Secretary of State for the Home Department v JJ

The House of Lords heard an appeal from the Secretary of State for the Home Department against the quashing of control orders made against six individuals suspected of involvement in terrorism-related activities. The orders imposed severe restrictions on the individuals' liberty, including curfews of 18 hours per day and restrictions on their movement, communication, and association. The respondents argued that the orders deprived them of their liberty in breach of article 5 of the European Convention on Human Rights.

The House of Lords considered the meaning of "deprivation of liberty" under article 5, noting that it was an autonomous concept that must be interpreted in light of the European Court of Human Rights' (ECtHR) jurisprudence. The court held that deprivation of liberty was concerned with physical liberty and could take numerous other forms beyond "classic detention in prison or strict arrest imposed on a serviceman." The distinction between deprivation of liberty and restriction of liberty was one of degree or intensity, not of nature or substance.

The House of Lords examined the facts of the case, noting that the respondents were confined to their residences for 18 hours per day, with limited opportunities for social contact and access to public facilities. They were allowed to leave their residences for six hours per day but were restricted to certain urban areas and prohibited from meeting anyone by prior arrangement outside their residences. The court found that the cumulative effect of the restrictions on the respondents' liberty amounted to a deprivation of their physical liberty.

The House of Lords also considered the remedy for the breach of article 5. The Prevention of Terrorism Act 2005 provided that the court's only powers were to quash the order, quash one or more obligations imposed by the order, or give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. The House of Lords held that since the Secretary of State had no power to make the order, there was nothing to revoke. The court found that the control orders were a nullity and that the appropriate remedy was to quash the orders in their entirety rather than strike down part of them or direct their modification by the Secretary of State.

The House of Lords dismissed the appeal, agreeing with the lower courts that the control orders deprived the respondents of their liberty in breach of article 5 of the European Convention on Human Rights. The orders were quashed in their entirety.