Another control order ruled unlawful

6 October 2010 by Matthew Flinn

CA v Secretary of State for the Home Department [2010] EWHC 2278 (10 September 2010) – Read judgment

The High Court has ruled that a a control order which required the “controlee” to relocate and live at an address in Ipswich, away from his family in Crawley, was unlawful.

In Secretary of State for the Home Department v AP [2010] UKSC 24, the Supreme Court allowed the appeal of a man subject to a control order based on the argument that confinement to a flat 150 miles away from his family amounted to a breach of his human rights under Article 5 of the ECHR (right to liberty). The case of CA provides another example of the court striking down a relocation provision in a control order, and is the latest in a long series of court judgments which have chipped away at the controversial scheme.

The appellant in this case was a British citizen, born in Crawley to parents of Pakistani origin. A control order was served on him on 16 February 2010, accompanied by a letter explaining that he was to be relocated to Ipswich one week later, to live apart from his wife and two children.

Mr Justice Mitting upheld an appeal against the modification which effected this relocation in late July, ruling that CA be permitted to return to Crawley, subject to stringent conditions to be imposed by the Secretary of State. On 10 September 2010 he released an open judgment (which was accompanied by a closed judgment) outlining the reasons for his decision.

In examining the proportionality of the decision to relocate CA to Ipswich, the judge acknowledged that “[b]reaking up loose groupings of individuals, by dispersion of some of them” is a legitimate means of minimising the risk of terrorism. He also accepted the existence of the risks that CA posed, and the fact that restrictive measures imposed on any residence in Crawley could not “remove them”.

Nevertheless, in noting that he was required to “subject the measure to intense scrutiny and to explore alternative means of achieving the same result”, he concluded that the relocation of CA to Ipswich could not be upheld. His particular focus was the impact that the relocation would have on CA’s family life. Accepting the evidence of CA’s wife that relocation could lead to the end of their marriage, and that their continued relationship was almost certainly conditional upon CA refraining from engaging in any terrorism-related activity, he concluded that (a) living with his family would mitigate the risk of CA engaging in such activity, (b) separation would exacerbate that risk, and (c) the advantage to be gained from removing CA from Crawley could not justify the destruction of the unity and welfare of his family.

While the control order scheme continues to stumble in the face of judicial scrutiny, Justice Secretary Ken Clarke has recently admitted the possibility that following the coalition government’s review of counter-terrorism legislation, their use would continue. Mr. Clarke played a prominent role in opposing the introduction of the scheme in 2005: he said in a speech that he “strongly opposed control orders because I do not believe that politicians should ever have the power to deprive people of their liberty.” However, senior police and security figures have been advocating their retention. Only nine control orders currently remain in force.

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