Local Government - March 2009

Deprivation of liberty

Background
On 1 May 2001 the claimant was one of a large crowd of demonstrators in central London. A significant contingent of the crowd was bent on violence and, although there was no suggestion that the claimant was involved in violent acts, or intended to protest other than peacefully, she willingly took part and assumed the risk of violence by other demonstrators. Such were the findings of fact made by the trial judge when the claimant challenged as unlawful her detention within the crowd for approaching seven hours after the imposition of a full police cordon.

At first instance, the trial judge held that, after the initial 20 minute loose cordon, during which the claimant was free to leave if she wished, she was subsequently deprived of her liberty within the meaning of article 5(1) of the European Convention on Human Rights. However, that containment was justified as the police reasonably believed all present within the cordon (including the claimant) were demonstrators about to breach the peace.

The Court of Appeal dismissed her appeal, upholding the claimant’s challenge against the finding that the police reasonably believed all within the cordon were about to breach the peace, but holding that the police did what was necessary to avoid an imminent breach of the peace, and in the exceptional circumstances of the case acted lawfully at common law.

The claimant appealed again, solely on the question of whether her article 5 (1) Convention rights had been infringed. 

The decision
Article 5 (1) states –

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

Lord Hope noted that the unqualified right not to be deprived of one’s liberty was to be contrasted with article 2 of protocol 4 to the Convention (not ratified in the UK) setting out a qualified right against restriction of movement. The distinction was appropriate to highlight the proper perspective with which to interpret article 5.  Lord Hope observed that “whether there is a deprivation of liberty, as opposed to a restriction of movement, is a matter of degree and intensity. Account must be taken of a whole range of factors, including the specific situation of the individual and the context in which the restriction of liberty occurs… And it is helpful to have regard to how the case in hand compares with the core or paradigm case, which cannot be the subject of argument.”

That paradigm case had been stated by Lord Hoffman in the earlier case of Secretary of State for the Home Department v J J & Others [2008] as one where “the prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits.  The only human beings he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others”. Or, as Lord Walker described it in the present case, “close personal confinement, against one’s will and to one’s discomfort…”  Analysis of the authorities led Lord Hope to conclude that “there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances.” In the present case, the restriction on the claimant’s liberty was held to fall outside article 5(1). The measures of crowd control taken by the police had not been arbitrary but rather “resorted to in good faith…proportionate and...enforced for no longer than…reasonably necessary.”

The remaining Law Lords agreed, Lords Walker and Neuberger adding some substantive comments of their own. Lord Walker noted that the police “were engaged in an unusually difficult exercise in crowd control, in order to avoid personal injuries and damage to property… The aim of the police was to disperse the crowd, and the fact of that achievement of that aim took much longer than they expected was due to circumstances beyond their control”. Lord Neuberger also considered the impact of the duration of the confinement but observed that “the mere fact of the period of constraint was unusually long [could not], of  itself, convert a situation which would otherwise not be in the ambit of article 5 into one which is”.  Lord Neuberger also considered argument about imputed consent. The claimant sought to suggest that in some of the decided cases imputed consent by those being confined played a part. Although dismissing that as an unsatisfactory analysis, Lord Neuberger noted that if imputed consent was an appropriate basis for justifying article 5 confinement, it would cover the present case, in which “anyone on the streets, particularly on a demonstration with a well known risk of serious violence, must be taken to be consenting to the possibility of being confined by the police, if it is a reasonable and proportionate way of preventing serious public disorder and violence.”

Comment
From a policing point of view, this decision is a victory for practical common sense. The police in this case were faced with a serious challenge to public order. They responded in a way that was both reasonable and proportionate, and the fact that their actions led to a significant period of confinement for all involved was essentially outside their control.

Of wider interest beyond the particular facts of this case were examples given by Lords Hope and Neuberger of other areas where crowd control in the public interest may be required and justified in the same way. They referred to measures to keep rival football fans apart, restrictions on the movement on motorists after road traffic accidents and the prevention of movement after a fire or terrorist incident, observing that “it is not without interest that it has no so far been suggested that restrictions of that kind will breach article 5(1) so long as they are proportionate and not arbitrary. As Lord Neuberger summed it up, “any sensible person living in a modern democracy would reasonably expect to be confined, or at least accept that it was proper that she could be confined, within a limited space by the police, in some circumstances”.

On the other hand, this conclusion is likely to be contentious, not least because the authorities given by Lord Hope do not mention ‘purpose’ at all. Rather, they focus on the “type, duration, effects and manner of implementation of the measure in question”. These are plainly not the same things.

The decision owes a great deal to the controversial case of HM v Switzerland (2004) 38 EHRR 17, in which the European Court of Human Rights (ECtHR) held that an elderly woman who was confined to a nursing home could not bring a claim under Article 5 because what was done was in her own best interests.

This case is certainly important for public order law, but it might also be relevant to the Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act 2005, as amended in 2007 – an amendment due to come into force on April 1 2009.

The possibility that what would otherwise be a deprivation of liberty will be prevented from being so if it is motivated by good intentions contradicts the findings of the ECtHR in the ‘Bournewood’ case.  There, the Court found that Article 5 was engaged – and had been breached – where a man with autism was confined to a mental health hospital for three months and prevented from seeing his carers. (HL v United Kingdom (2004) 40 EHRR 761) Lord Hope did not refer to this aspect of the case.

It is because of Bournewood, of course, that the government has introduced the DoLS. From 1 April 2009, they will allow incapable people to be deprived of liberty if certain forms of protection are in place.

In Bournewood, it was accepted that the measures used had been in the patient’s best interests. If, as the House of Lords has just done, the ECtHR had allowed that fact to prevent Article 5 being engaged, the government would neither have lost the case nor been forced to introduce the DoLS. As it is, the DoLS will be relevant where an incapable person is deprived of liberty in his own best interests. Yet if strict observation of best interests will prevent there being a deprivation of liberty, there will be no patient to whom the DoLS apply.  Could it be that even before they have come into force, the DoLS are redundant?

Nick Peel and David Hewitt
Partners
Weightmans LLP