The addition of ‘purpose’ by the English courts to the factors relevant in assessing whether there has been a deprivation of liberty can wrongly provide a justification to an otherwise unlawful measure, says Laura Davidson
The 1976 Engel case (Engel v Netherlands (1976) 1 EHRR 647) established that, when considering whether or not restrictions amount to a deprivation of liberty, “account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question”. While it can be argued that the case should be confined to its own – military – facts (see ‘Turning back the clock’, Solicitors Journal 156/22, 6 June 2012), it nonetheless calls on practitioners involved in DoLS cases to scrutinise the additional factor of ‘purpose’ identified as relevant by the domestic courts.
It is plain from the words “such as” in the Engel phrase that the factors mentioned were only examples of what might be considered when determining whether restrictions had crossed the threshold into deprivation of liberty. Each of the four factors specifically mentioned, however, are objectively observable, concrete features which permit an assessment of the quality of a restriction which physically affects the person restrained.
Purpose, reasons, aims and motives were not specifically highlighted in Engel, all of which might lead to the need for the imposition of restrictions or deprivation of liberty, but none of which describe the actual restrictions themselves.
Further, such contributing factors cannot be discerned purely by observation of the restrictions in place (although they may be guessed at), and they have no physical effect on the person whose liberty is being restricted.
Why should purpose, reasons, aims and motives have any relevance in deprivation of liberty cases? Is there a difference between them? Those matters were first addressed fully in Austin & Anor v Commissioner of the Police of the Metropolis  UKHL 5. The appellant argued that when considering whether her case fell within the ambit of article 5(1) ECHR, the reason why a cordon was put in place and kept there for so long – the purpose for which people’s freedom of movement was restricted – was irrelevant.
The House of Lords accepted that neither the wording of article 5 itself, nor Engel nor Guzzardi v Italy (1980) 3 EHRR 333, required a balancing exercise at the initial stage when the scope of the right was being considered. Nonetheless, they considered that there were “sufficient indications” in case law “that the question of balance … [has] a part to play...[in] the scope of…rights that protect the physical security of the individual” to enable a balance to be struck between that and what the restriction sought to achieve.
Lord Hope held that crowd control restrictions must not be arbitrary, disproportionate, or used in bad faith. However, Lord Hope’s findings did not go to the purpose or aim of the restrictions but to lawfulness: the police cannot exceed their powers. Lord Walker observed that the aim of the police was to disperse the crowd, noting that the factors listed in Engel “wide as they are, do not include purpose”.
The example given by Lord Neuberger of the police cordoning “in order to punish” would be unlawful not because a wrong motive would alter the quality of a restriction and convert it into a deprivation of liberty, but because the police have no powers to ‘punish’ people for gathering to demonstrate, but only to charge offenders who are committing a breach of the peace or some other crime.
Closer examination of the law lords’ reasoning reveals further shortcomings. In particular, they considered that the Strasbourg court ruling in Saadi v United Kingdom (application No.13229/03, 29 January 2008) had found that the notion of ‘arbitrariness’ in article 5 cases “includes the need for…[restrictions] to be carried out in good faith”.
They concluded that Saadi had clarified that article 5 arbitrariness would vary to a certain extent depending on the type of detention involved. Yet, it is plain from the ECtHR judgment that arbitrariness would vary according to which of the sub-paragraphs in article 5 were under consideration.
Further, the need for good faith related only to detention under article 5(1)(f) and to the context of migration (see para.74 and the partially dissenting opinion). In addition to conformity with domestic law, to avoid arbitrariness under article 5(1) any deprivation of liberty must be “in keeping with the purpose of protecting the individual from arbitrariness”. There was no reference to the purpose of the detention per se.
Hence, Austin appears erroneously to have introduced ‘purpose’ into English law as a consideration in decisions as to whether or not restrictions amount to a deprivation of liberty (rather than as a protection from arbitrariness). In Court of Protection cases, there can only be justification under article 5(1)(e) - “the lawful detention…of persons of unsound mind”. Arguably, the lawfulness of restrictions and/or detention and thus its justification requires no consideration of any purpose or aims of, or reasons or motives for, the measures in place. Rather, to avoid being arbitrary under Article 5(1)(e), it must be established that the person whose liberty is circumscribed is of ‘unsound’ mind (Winterwerp v Netherlands (1979) 2 EHRR 387). That will require objective medical evidence of a ‘true’ mental disorder, and not evidence of the motive (good or otherwise) of a detainer.
The relevance of purpose
In Mig & Meg  EWHC 785 (Fam), Parker J claimed to treat “with extreme caution the suggestion that purpose is relevant” to decisions about deprivation of liberty. She accepted that “the question of intention in the sense of mental attitude is irrelevant to the question of whether a person is deprived of their liberty. A person’s belief that they are not depriving another of their liberty is likely to be irrelevant and may be inaccurate.” She further held that it was “impermissible…to consider whether, if either [girl] is objectively detained or confined, this is with good or benign intentions or in their best interests”.
However, Parker J. then famously concluded that “in this case” it was both “relevant” and permissible to consider the reasons why the girls were under continuous supervision and control, and that purpose should still be “put into the equation when trying to discern the factual matrix” and whether or not there has been an objective deprivation of liberty. It is difficult to understand from the judgment why that particular case meant that such an assessment was appropriate, or how good intentions and benign reasons might differ qualitatively.
Meaning of new factors
So are purpose, reasons, aims and motives synonymous? Parker J had difficulty extrapolating the views of the lords in Austin, and purported to distinguish between ‘purpose’ and ‘reason’.
Munby LJ in Cheshire West & Chester Council v P  EWCA 1257 interpreted Austin to have found that “purpose” meant “the objective ‘aim’”. He considered that “reason”, “purpose” and “aim” were all objective, and synonymous. Motive and intention were not defined, other than as subjective. The Court of Appeal held that subjective motives and intentions did not equate to “purpose” and had a limited role in determining whether or not restrictions amounted to a deprivation
However, Munby LJ considered it permissible “to have regard both to the objective ’reason’ why someone is placed and treated as they are and also to the objective ‘purpose’ (or ‘aim’) of the placement”. Yet by his own definition, these three matters equate to the same thing. In any event, can supposedly objective aims really exclude motive or intention? Why is the purpose or aim of restricting someone’s movement “objective”, but an intention to do so “subjective”? It would appear that the courts automatically attach motive and intention to individuals – yet it is entirely possible (although admittedly less likely) that a whole department or even the wider family of an incapacitated person might be corrupt or deceitful.
Best interests and good intentions are irrelevant
When Mig v Meg reached the Court of Appeal, Wilson LJ criticised the significance Parker J had attached to the fact that the purpose of the girls’ accommodation arrangements was to further their best interests (P & Q  EWCA Civ 190).
In HM v Switzerland (2002) 38 EHRR 314, the dissenting judge held (quite rightly, in the author’s opinion) that “the question whether a measure amounts to a deprivation of liberty does not depend on whether it is intended to serve or actually serves the interests of the person concerned”. As the court held in DE v JE and Surrey County Council  EWHC 3459 (Fam), “this is to confuse…two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified? The argument, if taken to its logical conclusion, would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty… [W]hy should a beneficent purpose be of assistance in determining whether some more marginal state of affairs does or does not amount to a deprivation of liberty?”.
The Court of Appeal agreed in Cheshire West that “a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty…. good intentions are essentially neutral. At most they merely negative the existence of some improper motive or intention.” This echoes Austin where Lord Walker made it clear that good intentions could not “make up for any deficiencies in justification of the confinement”.
Yet, while Munby LJ in Cheshire West claimed to “remain” of his views stated in DE v JE, he found “both the reason and the purpose…relevant to the question of whether there is any deprivation of liberty”. The Court of Appeal held that “[s]ubjective motives or intentions” which result from “bad faith, deception, improper motives or other forms of arbitrary behaviour may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation.” This is plainly incorrect. It is entirely possible for there to be a plethora of bad faith, deception and improper motives behind the imposition of restrictions, yet for such restrictions to be nowhere near the threshold for a deprivation of liberty. Arbitrariness causes a deprivation of liberty to be unlawful, and it may give rise to a cause of action against the person acting in bad faith – such as a claim in misfeasance in public office – but it cannot convert restrictions which do not have the inherent quality of a deprivation of liberty into a situation of detention.
The new addition of ‘purpose’ by the English courts to the factors relevant in assessing whether or not there has been a deprivation of liberty does not bear close scrutiny and has weakened the protection of article 5. As Lord Brown held in SSHD v JJ & Ors  UKHL 45: “the borderline between deprivation of liberty and restriction of liberty of movement cannot vary according to the particular interests sought to be served by the restraints imposed”. It has not escaped the notice of lawyers that the recent case law leads to a pragmatic outcome in terms of review requirements.
The approval of the relevance of the “normality” of the accommodation arrange-ments for the incapacitated appellants in P & Q  EWCA Civ 190 by Wilson LJ has introduced yet another novel factor into the deprivation of liberty equation, which further weakens the article 5 rights of the incapacitated.
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