Dear Colleagues;

The decision of the UK Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor; & Anor case [2014] UKSC 19 http://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf concerns the very difficult question of when a mentally disabled person has been "deprived of liberty" so as to justify certain statutory protections required under UK law. In a 4-3 decision the majority (Lady Hale writing the main judgment) find that all that is needed for there to be a deprivation of liberty is "that the person concerned “was under continuous

supervision and control and was not free to leave”" (see [49]), even if they are being well looked after and even if, as was the case here, they are being cared for in a private home rather than an institution. The jurisprudence of the ECHR was closely considered as the relevant statute explicitly referred to the European Convention on Human Rights.

Insofar as this is a decision on the Convention, it is not directly relevant to the common law of torts. But it seems to me that the same sort of matters that are considered here would be relevant in an action for false imprisonment, where the preliminary question is whether there has been a deprivation of liberty. So the judgments here may well have a wider impact in jurisdictions where the common law will govern.

It was interesting to read, for example, a reaffirmation of the common law doctrine that a person may be deprived of liberty even if not aware of the fact- Lady Hale at [35], though without citing the common law cases. In Australia the Full Court of the Supreme Court of SA so held in STATE OF SOUTH AUSTRALIA v LAMPARD-TREVORROW [2010] SASC 56 (22 March 2010) at [289]-[299] in a case involving alleged false imprisonment of a "stolen generation" child. In doing so they impliedly disagreed with the majority decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] UKHL 24; [1999] 1 AC 458 , which it seems has effectively been over-ruled by the later ECHR decision in those proceedings HL v United Kingdom (2004) 40 EHRR 761 cited extensively in P.

The SA court ruled in Lampard-Trevorrow, however, that a child being cared for while a minor by parents cannot be said to be deprived of liberty for the purposes of the tort of false imprisonment. I see that the UKSC here agrees: see e.g. Lord Kerr at [78].

Regards

Neil