The contradictory approach to deprivation of liberty

Where someone consents to his confinement '“ in a hospital, for example, or a care home '“ can he be said to be deprived of liberty? The Court of Appeal now thinks not, but it hasn't always done so.

Last year, in P & Q v Surrey County Council and others [2011] EWCA Civ 190, Lord Justice Wilson said: 'If a person objects to the ?confinement, the consequences will be conflict. At the very least there will be arguments and she will suffer the stress of ?having her objections overruled. More probably, there will be tussles and physical ?restraints and even '“ perhaps '“ her forcible return at the hands of the police. The level of conflict inherent in overruled ?objections seems to me to be highly relevant to whether someone is deprived of liberty. Equally, however, the absence of objections generates an absence of conflict and thus ?a peaceful life, which seems to me to be ?capable of substantial relevance in the ?opposite direction.'

This analysis might, perhaps, be criticised: first, because it appears to confuse objection with how that objection manifests itself and is addressed. What of the person who objects to her confinement fervently but silently? Does her silence give her captors free licence? And there is another ?reason to doubt that the absence of objection is relevant: until now, the common law has held that a man can be falsely imprisoned even when he doesn't know he is being imprisoned at all.

Knowledge not necessary

In 1920, in Meering v Grahame-White Aviation Co Ltd [1920] 122 LT 24, CA, a man named Meering was suspected of stealing a keg of varnish from his employer. Two security guards asked him to go with them to an office, where he was shown into the waiting room. The guards remained standing outside, but Mr Meering did not know they were there. Even though he never tried to leave the waiting room, a majority of the Court of Appeal held that he had been falsely imprisoned. He hadn't objected to his confinement, of course, largely because he had not known he was being confined. But, if Wilson LJ is correct, that lack of objection would have damaged, and might even have destroyed, Mr Meering's case, then it would have caused this classic decision to go the other way.

As it was, Lord Justice Atkin told Mr Meering: 'It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep; while he is in a state of drunkenness; while he is unconscious; and while he is a lunatic. So, a man might be imprisoned by ?having the key of a door turned against him so that he is imprisoned in a room, although he does not know that the key has been turned. And so, he can be imprisoned if, instead of a lock and key or bolts and bars, he is prevented from exercising his liberty by guards and warders or policemen.'

Knowledge of one's confinement is, in short, irrelevant, and the same must ?therefore go for one's consent (or objection). This contradicts the point endorsed by the court in P & Q.

Confirming ECtHR's thinking

But the problem isn't one of the Court of Appeal's own devising. It is also evident in the approach of the European Court of Human Rights, and inherent in that court's own conception of 'deprivation of liberty'.

In another recent Court of Appeal case, Cheshire West and Chester Council v P [2011] EWCA Civ 1257, Lord Justice Munby confirmed the Strasbourg thinking in this ?regard: a capable person who consents to her confinement cannot be said to be deprived of liberty (see also Storck v Germany [2005] 43 EHRR 96).

The problem for the domestic courts, therefore, has not been created, but compounded, by the Court of Appeal. Now, Meering was about unlawful imprisonment and P & Q (and Cheshire West) about deprivation of liberty, and the two need not be the same thing. Yet, it is clear that, whereas, for the old cases, knowledge is irrelevant and objection (or its absence) therefore meaningless, the current case law tends towards a different view.

And that suggests something else: in the Court of Appeal at least, there is emerging a discrete conception of deprivation of liberty; a conception that, while it might owe a great deal to ECtHR jurisprudence, also appears to contradict earlier decisions of that self-same court.