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UK Supreme Court rules control order violated appellant's rights

The UK Supreme Court [official website] ruled [judgment, PDF; press summary, PDF] Wednesday that a control order [Guardian backgrounder; JURIST news archive] imposing a 16-hour curfew and requiring the appellant to live 150 miles from his family was a violation of his rights. The appellant, known only as AP, was subjected to the control order in 2008 after being suspected of involvement in terrorism. The order required him to wear an electronic tracking device, live 150 miles from his family in London and adhere to a 16-hour curfew. The solicitor for the appellant argued that the control order subjected him to social isolation, breaching his right to liberty under Article 5 of the European Convention of Human Rights (ECHR) [text]. Lawyers for the government argued that the control order was necessary to prevent the appellant from contacting terrorist organizations based in London. The government also argued that in considering the impact of the control order on the family, the court should not look at the individual circumstances of the family but should consider it on an objective standard. In siding with the appellant, Justice Simon Brown, writing for the seven-justice majority on the 12-member court, stated:

There is nothing in the Secretary of State's argument. ... In short, the judge must disregard not "the particular difficulties of the subject's family in visiting him" but rather any lack of contact resulting from the family's unreasonable failure to overcome these difficulties in order to visit him. It is not suggested here that the family behaved unreasonably in failing to overcome more effectively the practical difficulties they faced in visiting AP on a more regular basis, only that their particular difficulties should have been ignored. That submission cannot be accepted.
The case came to the court on appeal after the Court of Appeals of England and Wales [official website] had reversed the decision of a lower court. The lower court had rejected AP's EHCR Article 8 claim on the basis that the interference with family life was justified by national security considerations but found that, in conjunction with the 16-hour curfew, it constituted an EHCR Article 5 deprivation of liberty.

The appellant is an Ethiopian immigrant to the UK who was suspected of terrorist ties and not allowed to reenter the country after traveling to Somalia and Ethiopia in 2006. AP was later allowed out of detention subject to a control order issued under the Prevention of Terrorism Act of 2005 (PTA) [text], which allows the British government to conduct surveillance and impose house arrest on suspects where there does not exist enough evidence to prosecute. The orders can also be used to forbid the use of mobile phones and the Internet. The system set up under PTA has been criticized by Amnesty International (AI) [advocacy website] for what the human rights organization describes as criminal sanction without trial [press release] that is not compatible with human rights. AI has called for the repeal of the PTA and the abandonment of control orders, which it described as "fundamentally flawed." In September, then-Home Secretary Alan Johnson [BBC profile] said that the government would undertake a review [JURIST report] of the system. Johnson issued a ministerial statement [text] saying that his "current assessment is ... that the control order regime remains viable," but that he would "be keeping this assessment under review." In October 2007, the UK Law Lords ruled in a series of decisions that the government can continue to impose control orders [JURIST report] on terror suspects in lieu of detention, but said that some elements of the orders violate human rights.

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