Right to Liberty and Security in UK Law

The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.

But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.

In Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 L.T. 44 Atkin L.J. said, at p. 54 that "any restraint within defined bounds which is a restraint in fact may be an imprisonment". Thus if A imposes on B a restraint within defined bounds and is sued by B for false imprisonment, the action will succeed or fail according to whether or not A can justify the restraint imposed on B as lawful.

She recognised that every child was subject to a degree of control and deprivation of free movement. Examples were given such as —the child who was told by his mother that he cannot go out to the cinema because he had not completed his homework or —the child in boarding school with school rules which deprived him of free movement outside the school grounds. She accepted that the right to liberty was not absolute and that some deprivation of liberty did not come within Article 5.

This analysis emphasises that plainly not all restrictions placed on the liberty of children constitute deprivation. Obviously parents have a right and a responsibility to restrict the liberty of their children, not only for protective and corrective purposes, but also sometimes for a punitive purpose. So acting they only risk breaching a child's Article 5(1) rights if they exceed reasonable bounds. Equally parents may delegate that right and responsibility to others.

However restrictions so imposed must not in their totality amount to deprivation of liberty. Deprivation of liberty engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the deprivation of liberty of a child.

In short, it appears to me that we are at liberty, unconstrained by binding authority, to interpret Schedule 2 to the 1971 Act without any preconceived notions. If we do so, there is nothing there to suggest that Parliament intended to confer immunity from suit on immigration officers who asked themselves the wrong questions, so that their decision to deprive an immigrant of his/her liberty was a nullity and consequently unlawful.