Three members of chambers appear in a landmark Supreme Court decision redefining the understanding of Article 5 ECHR Deprivations of Liberty

In a landmark decision which will redefine the domestic understanding of a deprivation of liberty for the purposes of Article 5 ECHR, and impact on the population of approximately 400,000 people in England and Wales who are considered to be deprived of their liberty in health and social care settings, the Supreme Court has set aside the 2014 decision of P v Cheshire West and Chester Council [2014] UKSC 19. In A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, the Supreme Court has determined that:

1. The Cheshire West ‘acid test’ for identifying the objective element of deprivation of liberty was wrong and departed from Strasbourg case law;
2. A person without mental capacity to make decisions about their residence and care arrangements can give subjective consent to what would otherwise be a deprivation of liberty, so as to take their circumstances out of Article 5 ECHR.

39 Essex Chambers’ barristers Alex Ruck Keene KC (Hon), led by Tony McGleenan KC, acted for the Attorney General for Northern Ireland and Victoria Butler-Cole KC and Arianna Kelly together with Dr Oliver Lewis acted on a pro bono basis for the joint intervenor charities, Mind, Mencap and the National Autistic Society, instructed by Emma Mack of Mind, Mathieu Culverhouse and Rebecca Chapman of Irwin Mitchell.

For a summary of the judgment, please click here.

For a webinar on the judgment and its implications by Victoria Butler-Cole KC, Neil Allen and Arianna Kelly, please click here.