Judge: ECtHR, Grand Chamber
Citation:  ECHR 459
Summary: This is the long-awaited decision of the Grand Chamber of the ECtHR in the case of the May Day protester and three innocent bystanders who were ‘kettled’ at Oxford Circus for around 7 hours in May 2001. The House of Lords held that they were not deprived of their liberty, and so Article 5 ECHR was not engaged, relying on a ‘pragmatic approach which takes account of all the circumstances’ (per Lord Hope) and the balancing of the interests of the individuals against those of the community where there is a risk of violence and disorder. The claimants argued that such considerations were not relevant to the question of whether the objective element of a deprivation of liberty was satisfied. The purpose or aim of the restrictions could not be taken into account other than in determining whether a deprivation of liberty that fell within the categories provided for in Article 5(1) was proportionate.
The Government argued that the cordon was no more than a restriction on the claimants’ freedom and that the court could look at the context in which the restrictions were imposed, which included the reason for their implementation and the fact that there were no other less restrictive alternatives.
The ECtHR summarised the applicable principles drawn from its caselaw, including the following:
(a) Although the Convention is a living instrument, new exceptions or justifications which are not expressly recognised in the Convention cannot be added by the court.
(b) In other cases not involving Article 5, the court had taken into account the difficulties involved in policing modern societies, and the police were to be afforded a degree of discretion in taking operational decisions. Article 5 could not be interpreted in such a way as to make it impracticable for the police to fulfil their duties, provided the individual is protected from arbitrariness.
(c) In determining whether someone has been deprived of his liberty, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance.
The court stated that the purpose behind a measure and an underlying public interest motive has no bearing on whether the person is deprived of their liberty, although it may be relevant to whether a deprivation of liberty was justified. The same applies where the object is to protect, treat or care for a person who has not validly consented to a deprivation of liberty. However, in taking into account the ‘type’ and ‘manner of implementation’ of a restrictive measure, the court was able to ‘have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell’. Further, “The context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good.”
Thus, temporary restrictions on liberty which the public generally accept (such as travel by public transport or attendance at a football match) would not entail a deprivation of liberty provided they were ‘rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose.’ There could be a breach of Article 5 in a crowd control case, but all would depend on the specific context. On the facts of the particular case, there was no deprivation of liberty because the police had no alternative, the measures they adopted were the least intrusive and most effective, and there was no obvious point at which the restriction on movement became a deprivation of liberty. The measures were ‘necessary’ on the ‘specific and exceptional facts’ of the case.
Comment: The importance of this decision from the perspective of practitioners in the Court of Protection is of course whether it affects the decision of the Court of Appeal in Cheshire West and Chester v P  EWCA Civ 1257. In the Court of Appeal case, it was held that although good intentions were not relevant to the question of whether there was an objective deprivation of liberty, the reason, purpose or aim of the placement was relevant. In reaching that conclusion, express reliance was placed on the House of Lords decision in Austin.
The ECtHR did not adopt the same language used by the House of Lords, and in particular, did not say that ‘purpose’ was a relevant factor. However, the ECtHR did say that context and circumstances are relevant, when considering the type and manner of implementation of restrictive measures. Is there any difference between these approaches, and does it matter if there is?
In the view of the author, there is a difference. ‘Purpose’ is much more closely elided to the impermissible consideration of subjective intention, and can too easily sweep up everything in its path. The purpose of providing 24 hour one-to-one support in a locked placement is to protect P from harm. Once that has been stated, what more is there to consider? ‘Purpose’ is generic, and diverts attention from the specific circumstances of the situation. If purpose had been the deciding factor for the ECtHR, then it would surely not have concluded that there could be breaches of Article 5 in crowd control cases – if the police could say ‘our purpose was to prevent violent disorder’, that would stifle any further argument that a deprivation of liberty had arisen.
The ECtHR held instead that circumstances and context could be looked at, as part of the exercise of considering the type and manner of implementation of restrictive measure. How can the court’s express rejection of purpose both in the kettling context and in the context of community care be reconciled with its taking into account of wider circumstances and its reliance on the measures adopted by the police being necessary and proportionate? The short answer is that it cannot, and that the dissenting judges were right when they said that allowing the context and the wider responsibilities of the police to be taken into account is “dangerous in that it leaves the way open for carte blanche and sends out a bad message to police authorities.”
Be that as it may, the building blocks of the ECtHR’s reasoning in Austin do not in any event apply to cases involving the care of incapacitated patients. There is no concern that by finding that P was deprived of his liberty in the Cheshire case, it would be impracticable for local authorities to fulfil their duties in providing community care, because, unlike in Austin, where the acts of the police did not fall within one of the exhaustive categories in Article 5 and therefore could not be justified if Article 5 was engaged, the deprivation of P’s liberty could be warranted as being proportionate and in P’s best interests. Even if the result of Austin is that it is proper to have regard to context and to the reason for restrictive measures being imposed in the community care context, the decision does not go so far as supporting the Court of Appeal’s use of the comparator approach, or reliance on the fact that restrictive measures are said (often by the detaining authority) to be necessary to meet P’s needs.
In practical terms, where does this leave best interests assessors and statutory bodies trying to decide whether a particular case involves a deprivation of liberty? Unfortunately, it remains the case that the more judgments that are published, the more confusing the guidance. In the author’s experience, many social workers find the Cheshire West judgment difficult to understand and are concerned that it blurs the distinction between whether there is a deprivation of liberty, and whether that deprivation of liberty is in P’s best interests. Unless and until the Supreme Court grants permission in the Cheshire West case and clarifies the approach to be taken, this unhelpful situation will continue. In the meantime, perhaps the most useful advice that can be given is to avoid thinking in terms of ‘purpose’, to look carefully at the restrictive measures in the particular case and to query whether they really are necessary and the least restrictive option, to remember that considerations of ‘reason’ are not determinative, and if in any doubt, to err on the side of caution and find that there is.