This article first appeared in Solicitors Journal on 12th April 2011 and is re-published here with kind permission. For more information please visit

It is well established that there are two components to a deprivation of liberty for the purposes of article 5 of the ECHR. There is an objective element (actual confinement, for which the state is responsible, in a particular restricted space for a length of time which is not negligible) and a subjective element – lack of valid capacitous consent.

It is clear that there may be overlap between the elements, and that conditions may only be so restrictive that they amount to a deprivation of liberty when taken cumulatively. But until now it has been thought that the purpose of restrictions is irrelevant when determining whether those restrictions amount to a deprivation

of liberty.

However, a reconsideration of article 5 has been undertaken by the Court of Appeal which shifts this presumption……