Whose liberty?

The House of Lords recently held that a woman who took part in the May Day protests of 2001, and who was one of several thousand people whom the police confined in Oxford Circus for up to seven hours, was not deprived of liberty (Austin v Metropolitan Police Commissioner [2009] UKHL 5 (Solicitors Journal, 3 February 2009). The woman lost her case because the law lords found that the police had acted in a way that was relevant, proportionate, and in good faith.

In the community's interest

Giving the lead judgment, Lord Hope cited a number of cases brought under the ECHR, which, he said, established that in deciding whether there is a deprivation of liberty, 'account must be taken of ['¦] the context in which the restriction of liberty occurs' and, therefore, of the purpose of the measures used (para.21). Here, the purpose '“ crowd control '“ was a permissible one and 'in the interests of the community', so that Art.5 ECHR, which enshrines the right to liberty, wasn't even engaged.

This conclusion is likely to be deeply contentious, not least because the authorities do not mention 'purpose' at all; rather, they focus on the 'type, duration, effects and manner of implementation of the measure in question' (see, for example: Engel v The Netherlands [1979-80] 1 EHRR 647; Guzzardi v Italy [1981] 3 EHRR 333). These are plainly not the same bases for judgment.

Lord Hope's conclusion appears to owe a great deal to the controversial European Court of Human Rights (ECtHR) decision in HM v Switzerland [2004] 38 EHRR 17 (see: David Hewitt, 'Whatever Happened to Winterwerp?', Solicitors Journal, 10 May 2002, p. 436). It did not find favour with Lord Walker, who argued that purpose was irrelevant to the question of whether confinement amounted to a deprivation of liberty: 'If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement' (para.44). This, though, was a minority view. The other three members of the Appellate Committee fell in behind Lord Hope and, as she had been in the Court of Appeal '“ and also, though for slightly different reasons, at first instance '“ the claimant was unsuccessful.

Unqualified control

The possibility that what would otherwise be deprivation of liberty will be prevented from being so by mere good intentions might surprise, and possibly infuriate, the government. Though it could easily have done so, the ECtHR did not reach this conclusion in the Bournewood case. There, the court found that Art.5 was engaged '“ and had been breached '“ where Mr L, a man with autism, had been confined to a mental health hospital for three months and prevented from seeing his carers. The court said that this, and not much more, amounted to an assumption of 'effective, unqualified control' over the man (HL v United Kingdom [2004] 40 EHRR 761). Lord Hope did not refer to this aspect of the case in Austin.

Because of Bournewood the government has introduced the Deprivation of Liberty Safeguards (DoLS), which from 1 April 2009 will allow incapable people to be deprived of liberty if certain forms of protection are in place.

A redundant measure?

It was accepted that the measures imposed upon Mr L had been in his best interests. If, as the House of Lords has just done, the ECtHR had allowed that fact to prevent Art.5 being engaged, the government would neither have lost the Bournewood 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' means confinement will not amount to 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 otiose?

And the implications of the lords' decision go further. If, no matter how constraining they might be, measures taken in the best interests of a patient will never engage Art.5, what is to become of people with mental disorder who are detained under the Mental Health Act? How are they to be protected against unlawful compulsion and what are we to make of the dozens of cases such people have brought, and sometimes won, claiming an impermissible breach of the right to liberty? This baleful question first arose after HM v Switzerland was decided in Strasbourg. It seems it must now be asked again, only this time, much closer to home.