Judge: Bodey J
Citation:  EWCOP 20
The central issue was whether Mrs L, a 93-year old lady with Alzheimer’s dementia, was “deprived” of her liberty in her home, where care and safety arrangements had been set up for her between her adult daughters and the Local Authority. The Local Authority contended that she was; her daughter, acting as litigation friend, L contended that she was not.
Mrs L had been living in the upper floor flat of a 2-storey building for around 39 years. Owing to the risks, her family arranged for a fence and two gates to be erected, enclosing the garden. The front door to her flat which led into the garden was locked with a Yale lock, which Mrs L could operate so she could access the garden when she wished. At night, door sensors switched themselves on in the evening and off in the morning and would be activated if Mrs L were to leave the property at night. An alarm call would be automatically be made to one of her daughters nearby and, if not available, would re-route to the emergency services. This would enable Mrs L to be guided safely back home and had not been triggered since they were installed. The Local Authority provided a care package consisting of three visits a day by specialist dementia carers.
Bodey J summarised the law, noting that “[t]he fact that Cheshire West was heard by 7 Supreme Court Justices and that the decision was by a majority of 4 to 3 demonstrates the difficulty of the topic.” After outlining the respective positions of the parties, his Lordship held that the circumstances did not constitute a deprivation of liberty or, if they did, it was not imputable to the State. In light of the importance of the issue, we set out the court’s reasoning in full:
“22. It is clear from Cheshire West that there may be situations where a person is not free to leave a place, but is not under such continuous supervision and control as to mean that the arrangements put in place constitute a deprivation of liberty (per Lady Hale, cited at paragraph 11 above). It is well established that the difference between a deprivation of liberty and a restriction of liberty is one of degree or intensity, not one of nature or substance. The bulk of the jurisprudence can be seen to concern individuals in State-run social care institutions or hospitals, and not individuals in their own homes. This per se cannot of course be decisive in a given case for saying that a deprivation of liberty does not exist (for it is easy to envisage arrangements in a person’s own home which would constitute just such a deprivation of liberty); but, in my judgment, the ‘own home’ consideration must be a relevant factor in the mix.
‘… It is a fair point that the Strasbourg court has never had to consider a case where a person was confined to what may be described as an ordinary home. However, I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty.” [Emphasis added]
Again, in paragraph 41 of Cheshire West, Lady Hale spoke about the complainant being under the complete supervision and control of the staff and not free to leave [emphasis added]. Such considerations do not apply here, although they are clearly not pre-requisite to a deprivation of liberty: see paragraph 12(a) above. But it is overwhelmingly clear that Mrs L is where she always wanted to be when she was capacitous: and where not only has she not shown or expressed any dissatisfaction with the arrangements, but has demonstrated positively a continuing satisfaction with being in her own home. Further, her home is clearly not a ‘placement’ in the sense of a person being taken or taking herself to some institution or hospital.
Alongside Rochdale MBC v KW (a further iteration of which is discussed below), this is the second reported case that has sought to distance its factual circumstances from Cheshire West. The court’s reluctance to place significant weight on the “own home” feature is understandable, given that some might contend that P and MIG were living at “home”, albeit not their “own”. Similarly, KW lived in her “home” but this was not her “own” because it was a rented property. Were a person’s accommodation status to be relevant to the triggering of Article 5 would mean that we would run the risk of very fine distinctions being drawn in determining what constitutes a “home”. Indeed, in R (G) v Nottinghamshire Healthcare NHS Trust and others  EWCA Civ 795, the Trust suggested that Rampton high security hospital was the detained patient’s “home”.
What we might be witnessing is the emerging relevance of Article 8 in the triggering of Article 5: an argument put to, but not referred to by, the Supreme Court. “Home”, in Article 8 terms, is “the place … where private and family life develops”: Gomez v Spain (2005) 41 EHRR 40 at para 53. And clearly, the lower the threshold for “deprivation of liberty,” the greater the intrusion on people’s Article 8 rights. The following passage from the Court of Appeal’s judgment in the Rampton smoking ban case might become increasingly relevant:
“42. Article 8 seeks to prevent intrusion by the state into the physical and private space which the concept of home represents. For example, what one eats or drinks may not be important, but that the state should dictate what a person eats or drinks in the privacy of a person’s own home would be regarded as deeply intrusive. As Isaiah Berlin put it:
‘The desire not to be impinged upon, to be left to oneself, has been a mark of high civilization both on the part of individuals and communities. The sense of privacy itself, of the area of personal relationships as something sacred in its own right, derives from a conception of freedom which for all its religious roots, is scarcely older, in its developed state, than the Renaissance or Reformation. Yet its decline would mark the death of a civilization, of an entire moral outlook.’ (Inaugural Lecture, Oxford 1958)”
As Mostyn J did Rochdale, Bodey J cites the reference in Article 5 to “liberty and security” of person. Whether the appellate courts begin to shift their focus in this way will be interesting given the ECtHR’s stance to date, which is that “security of person” does not provide any separate interpretation from the right to liberty, its inclusion serving to emphasise that detention must not be arbitrary: see, e.g., Altun v Turkey  ECHR 237 at para 57. This can be contrasted with the interpretation afforded to analogous provisions in the Universal Declaration of Human Rights (article 3), the International Covenant on Civil and Political Rights (article 9), and the American Declaration on the Rights and Duties of Man (article 1).
It is a matter of some considerable regret that the Local Authority only introduced very late in the day questions relating to the circumstances in which the State might be responsible for violating its positive obligations under Article 5 ECHR to protect people from arbitrary interferences by private persons. So this aspect of the case was not considered in any depth by Bodey J. However, it is analysed in the Law Society guidance discussed below (guidance drafted before the transcript of Bodey J’s judgment had been published but with limited information as to his conclusions).
It is not known whether this decision is to be appealed. As matters stand, it seems that W City Council provides a rare example of when someone is not free to leave but is not under continuous or complete supervision and control.